United States District Court, D. Utah, Central Division
JARED K. DAYLEY, Plaintiff,
THE UNITED STATES OF AMERICA; INTERMOUNTAIN HEALTH CARE, INC., d.b.a. INTERMOUNTAIN SPRINGVILLE CLINIC; DON L. BOWCUT, M.D.; and DOES I-X, Defendants.
MEMORANDUM DECISION AND ORDER
Benson United States District Judge
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.
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.].
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.
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.].
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.
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].
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].
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].
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].
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