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Arnold v. Grigsby

Supreme Court of Utah

April 11, 2018

Gina M. Arnold, Appellant and Cross-appellee,
David Grigsby, M.D., Appellee and Cross-appellant.

          On Direct Appeal Eighth District Court, Duchesne The Honorable Samuel P. Chiara No. 020800066

          Roger P. Christensen, Scott Evans, Sarah E. Spencer, Gabriel K. White, Salt Lake City, for appellant and cross-appellee

          Larry R. White, Paul D. Van Komen, Patrick L. Tanner, Salt Lake City, for appellee and cross-appellant

          Justice Himonas authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Pearce, and Judge Toomey joined.

          Due to her retirement, Justice Durham did not participate herein; Court of Appeals Judge Kate A. Toomey sat.

          Justice Petersen became a member of the Court on November 17, 2017, after oral argument in this matter and accordingly did not participate.




         ¶1 Gina Arnold went in for a routine colonoscopy and ended up with a potentially fatal condition when her bowel was perforated during the procedure. She subsequently filed a medical malpractice claim against Dr. David Grigsby. This appeal is from a medical malpractice suit where the jury concluded that Ms. Arnold's lawsuit against Dr. Grigsby was time-barred. In particular, the jury found that Ms. Arnold's cause of action against Dr. Grigsby had accrued-that she should have known of her injury and that it was caused by Dr. Grigsby's negligence-more than two years before she filed suit. Because of this, the jury concluded that the Utah Medical Malpractice Act's two-year statute of limitations barred Ms. Arnold's claim.

         ¶2 On appeal, Ms. Arnold argues that the trial court committed four errors. First, she argues that the trial court erroneously denied her motion for summary judgment on the issue of whether she should have known that she had a cause of action more than two years before she filed suit. Second, Ms. Arnold argues that the trial court made a variety of evidentiary errors: it erred in admitting two pieces of evidence that she says were impermissible hearsay-(1) her husband's statement that a nurse had told him Ms. Arnold had received substandard care, and (2) a document on which a nurse had noted that Ms. Arnold said she intended to sue her doctors-and it also erred in excluding evidence Ms. Arnold had proffered. Third, she argues that the trial court erred in denying her motion for a directed verdict regarding whether she should have known of her cause of action more than two years before she filed suit. Finally, Ms. Arnold argues that the trial court gave the jury several misleading instructions pertaining to what Dr. Grigsby had to show to prove she should have known about her cause of action more than two years before she filed suit. Dr. Grigsby cross-appealed the trial court's entry of summary judgment for Ms. Arnold on the issue of whether she actually knew of her cause of action more than two years before she filed suit.

         ¶3 We affirm. We hold that a jury could permissibly find for Dr. Grigsby based on the evidence before it. We hold that the trial court's decision not to grant summary judgment isn't reviewable- and we further explain why an earlier decision by this court, Arnold v. Grigsby, 2012 UT 61, 289 P.3d 449, in which we affirmed the court of appeals reversal of a grant of summary judgment to Dr. Grigsby on this same issue, isn't to the contrary. We hold that the trial court's evidentiary decisions weren't in error: it wasn't an abuse of discretion for the court to admit Ms. Arnold's husband's testimony, and the nurse's report was admissible under the business records exception to the bar on hearsay; similarly, the court correctly excluded all the evidence Ms. Arnold proffered. We hold that a directed verdict isn't warranted here where sufficient evidence was offered to sustain a jury verdict in favor of Dr. Grigsby. And, finally, we hold that, read as a whole, the jury instructions in this case weren't misleading. And because we affirm, we dismiss the cross-appeal as moot.


         ¶4 In July 1999, Dr. Gary White performed an outpatient colonoscopy on Ms. Arnold. During the procedure, Dr. White unknowingly perforated Ms. Arnold's colon when removing a small polyp. The next day, Ms. Arnold, experiencing symptoms, went to the emergency room where Dr. White diagnosed the perforation and admitted her to Uintah Basin Medical Center hospital (UBMC), a small rural hospital in Roosevelt, Utah. Initially, she was unsuccessfully treated with antibiotics. Dr. White and Dr. Grigsby subsequently performed four laparoscopic procedures to treat the infection caused by the perforation. Their efforts were unsuccessful. Mr. Arnold testified that before his wife was transferred to St. Mark's Hospital, a nurse had told him that she needed to be transferred or she'd die, and the nurse was critical of the physician's care. At her husband's request, she was transferred on August 16, 1999, to St. Mark's Hospital in Salt Lake City, where major surgery (a colostomy) commenced within hours to treat her perforation and infection.

         ¶5 On August 26, 1999, a home health care nurse, Denice Vernieuw, recorded on a sticky note attached to the intake form that Ms. Arnold had crossed out portions of the form because she'd been told by her lawyer not to sign papers agreeing to pay. This note was entered into her record and recorded in Ms. Arnold's electronic patient notes by office staff five days later. Ms. Arnold's friend, daughter of attorney Harold Hintze, visited and assisted Ms. Arnold frequently after she returned home to Roosevelt. After some form of consultation, Ms. Arnold signed an authorization and request for release of medical information in September 1999. Mr. Hintze sent a request to UBMC for her medical records on November 16, 1999. Mr. Hintze has no recollection of receiving Ms. Arnold's records, and by November 1999, began other legal work in Panama. And Ms. Arnold, not having heard back from Mr. Hintze, hired another attorney the next spring.

         ¶6 Ms. and Mr. Arnold filed their initial complaint on December 4, 2001, against three defendants: Dr. Gary White, Dr. David Grigsby, and the UBMC. This appeal only encompasses the action against Dr. Grigsby. In 2005, Dr. Grigsby moved for summary judgment because he purported that the two-year statute of limitations had expired. The trial court granted summary judgment. The Arnolds subsequently appealed, arguing that the statute of limitations had been tolled when Dr. Grigsby left the state in July 2000. The court of appeals reversed the trial court, a decision Dr. Grigsby appealed. Arnold v. Grigsby, 2008 UT App 58, ¶ 24, 180 P.3d 188, rev'd, 2009 UT 88, 225 P.3d 192. We reversed the court of appeals holding that the tolling provision didn't apply to the statute of limitations period that governed medical malpractice actions under the Health Care Malpractice Act, Utah Code section 78-14-4 (2002), and remanded the case to the court of appeals to review the trial court's grant of summary judgment. Arnold v. Grigsby, 2009 UT 88, ¶¶ 25-26, 225 P.3d 192. The court of appeals reversed summary judgment. Arnold v. Grigsby, 2010 UT App 226, ¶ 24, 239 P.3d 294, aff'd on other grounds, 2012 UT 61, 289 P.3d 449. Dr. Grigsby again appealed, and we affirmed the court of appeals in part, holding that the facts presented couldn't establish as a matter of law that her claim was barred by the statute of limitations, and remanded the case to the trial court "so that a jury [could] determine whether Ms. Arnold filed her claim more than two years after she discovered, or should have discovered, her legal injury." Arnold v. Grigsby, 2012 UT 61, ¶ 32, 289 P.3d 449.

         ¶7 Upon remand to the trial court, Ms. Arnold filed a motion for summary judgment, which the court granted in part: finding that Ms. Arnold didn't actually know of her legal injury two-years prior to the date she filed her complaint; and denied in part: finding that a genuine issue of material fact remained as to whether Ms. Arnold should have discovered her legal injury through reasonable diligence more than two years prior to filing her claim. After several hearings on the admissibility of evidence, the remaining issue was tried to a jury in November 2015. After both sides had presented their evidence to the jury, Ms. Arnold moved for a directed verdict on the grounds that the evidence admitted at trial established as a matter of law that the court should find in her favor. The trial court denied the motion, finding that "what a reasonable person should have known" according to the evidence "is always a jury question." The issue of whether Ms. Arnold should have known of her legal injury then went to the jury for deliberation, and the jury returned a unanimous verdict in favor of Dr. Grigsby. We have jurisdiction under Utah Code section 78A-3-102(3)(j).


         ¶8 Summary judgment is only appropriate "if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Utah R Civ. P. 56(a);[1] see also Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 ("An appellate court reviews a trial court's legal conclusions and ultimate grant or denial of summary judgment for correctness . . . ." (citation omitted) (internal quotation marks omitted)). "We do not review on appeal, however, whether a dispute of material fact existed at the summary judgment stage of a litigation if the trial court denies summary judgment." Kerr v. City of Salt Lake, 2013 UT 75, ¶ 29, 322 P.3d 669 (citations omitted).

         ¶9 With regard to the admission of evidence, most decisions involve a threshold statement of the legal principle governing admission or exclusion, findings of facts pertinent to a determination, and the application of the legal principle to the facts at hand with regard to admissibility. "We review the legal questions to make the determination of admissibility for correctness. We review the questions of fact for clear error. Finally, we review the [trial] court's ruling on admissibility for abuse of discretion." State v. Workman, 2005 UT 66, ¶ 10, 122 P.3d 639 (citations omitted).

         ¶10 A directed verdict is only appropriate "[i]f a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." Utah R. Civ. P. 50(a)(1).[2] This court reviews trial court rulings on motions for directed verdict for correctness. State v. Gonzalez, 2015 UT 10, ¶ 21, 345 P.3d 1168 ("We review a trial court's ruling on a motion for directed verdict for correctness." (citation omitted)).

         ¶11 "A trial court's ruling concerning a jury instruction is reviewed for correctness, " without deference to its interpretation of the law. Butler v. Naylor, 1999 UT 85, ¶ 10, 983 P.2d 41 (citation omitted). "A new trial will not be granted unless any error of the trial court was prejudicial, meaning that it misadvised or misled the jury on the law." Id. (citation omitted).


         ¶12 The statute of limitations on a medical malpractice suit is tolled by the discovery rule until it's time-barred by the four-year statute of repose. "A malpractice action against a health care provider shall be commenced within two years after the plaintiff or patient discovers, or through the use of reasonable diligence should have ...

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