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Dayley v. United States

United States District Court, D. Utah, Central Division

March 27, 2018

JARED K. DAYLEY, Plaintiff,


          De Benson United States District Judge

         Before the Court is a motion for summary judgment brought by Defendants Intermountain Health Care, Inc. d.b.a. Intermountain Springville Clinic and Don L. Bowcut, M.D. (collectively “the IHC Defendants”). [Dkt. 68]. The motion has been fully briefed and a hearing was held before the Court on March 14, 2018. At the hearing, Plaintiff Jared K. Dayley was represented by Lena Daggs and Todd Walquist. The IHC Defendants were represented by James Burton. The United States of America was represented by John Mangum and Jeffrey Nelson. Based on the parties' written and oral arguments and on the relevant facts and the law, the Court enters the following Memorandum Decision and Order.


         On December 22, 2005, Mr. Dayley visited the Intermountain Springville Clinic, a walk-in urgent care clinic, because he was experiencing fever, malaise, left flank pain and blood in his urine for two to three days. [Dkt. 69-1]. Defendant Dr. Bowcut examined Mr. Dayley and determined that he had dark tea-colored urine and possible glomerulonephritis. [Id.]. Dr. Bowcut ordered the following tests be performed on Mr. Dayley that day: a CBC (complete blood count), CMP (comprehensive metabolic panel), ASO (strep test), CRP-reactive protein tests), CT of abdomen and UA (urinalysis) with micro. [Id.]. Mr. Dayley left the clinic and returned the following day. He spoke to a nurse who reported to him that the test results they had received “were okay other than suspicious for mono and dehydration.” [Id.]. Mr. Dayley told the nurse that he was still feeling ill. [Id.]. The nurse encouraged him to drink fluids and said they would contact him with the rest of the test results once they received them. [Id.]. She said he should expect to come in for follow up testing. [Id.].

         Mr. Dayley's test results showed his creatinine level to be 1.6, above normal. [Dkt. 69-4]. An elevated creatinine level is a potential indicator of kidney problems. [Dkt. 69-5]. His glomerular filtration rate (GFR), which is used to detect kidney disease, was 54, below the normal level of 60. [Dkt. 69-4]. A low GFR over time can indicate chronic kidney disease. [Dkt. 69-5]. A CT scan of his abdomen was normal. [Dkt. 69-1].

         On December 29, 2005, at Dr. Bowman's instruction, Nurse Linda Fuller telephoned Mr. Dayley to suggest he come back for repeat tests the following week. [Dkt. 69-1]. Mr. Dayley told her that he was feeling better. [Id.]. He said he did not have health insurance and asked if there was “anything specific about coming back.” [Id.]. On December 30, 2005, Nurse Fuller notified Mr. Dayley that according to Dr. Bowcut, if he was feeling better and the “urine is looking better” follow up “may not be essential.” [Id.]. Otherwise, they needed “to make certain that his kidneys were not in danger.” [Id.].

         There is a disputed issue of fact as to what Mr. Dayley understood from Nurse Fuller about the need for him to follow up or receive further testing. [Dkt. 68, 88]. Mr. Dayley believed that his condition had improved and that if he no longer had blood in his urine, it was not necessary to obtain follow up lab work. [Dkt. 89-5]. Mr. Dayley did not follow-up with the Springville Clinic or a primary care physician. [Id.].

         In July, 2011, Mr. Dayley visited a voluntary care clinic for treatment of a fractured jaw and chronic fatigue. [Dkt. 15 ¶48]. The attending physician ordered a blood test. [Dkt. 15 ¶49]. The test results revealed a creatinine level of 1.9, marked with an “H” indicating high. [Dkt. 15 ¶51]. The lab also revealed a GFR level of 41, marked with a “L” indicating low. [Dkt. 15 ¶53]. Mr. Dayley received a letter from the clinic requesting that he come back to discuss the test results and the potential need for therapy and urinary monitoring. [Dkt. 15 ¶56]. Mr. Dayley did so and was told he had hyperlipidemia and was advised to eat a low fat diet and exercise. [Dkt. 15 ¶60]. He alleges he was never informed of his high creatinine levels or problems with his kidneys and that receiving therapy and urinary monitoring were never discussed. [Dkt. 15 ¶62-65].

         In 2014, Mr. Dayley visited Grandview Family Medical and was diagnosed with end stage kidney failure [88, 89-9]. His condition at that time suggested that he had suffered from glomerulonephritis for at least nine years. [88, 89-6].

         Mr. Dayley submitted a notice of intent to commence legal action on July 23, 2015. [Dkt. 68-13]. He filed his original complaint on March 29, 2016. [Dkt. 2]. The IHC Defendants seek dismissal from this action for two independent reasons. First, they contend that Mr. Dayley's claims are barred by the applicable statute of repose. Alternatively, they argue that their medical treatment of Mr. Dayley met the required standard of care. [Dkt. 68].

         Mr. Dayley opposes the motion, asserting that this action is timely because the continuing course of treatment doctrine tolled the statute of repose. Alternatively, Mr. Dayley argues that the statute of repose is unconstitutional under both the United States and Utah constitutions. [Dkt. 88].


         Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The Court must “examine the factual record and reasonable inferences therefrom in the light most favorable to ...

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