United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER
BENSON UNITED STATES DISTRICT JUDGE.
the Court is the defendants' motion for partial summary
judgment seeking a ruling from the Court that the plaintiffs
are limited by the Utah Medical Malpractice Act (“the
Act”) from pursuing a combined total of noneconomic
damages in excess of $450, 000. [Dkt. 17]. The motion has
been fully briefed and the Court heard oral argument on
February 6, 2018. At the hearing, the Plaintiffs were
represented by Leonard McGee and Peter Mifflin. The
defendants were represented by Rodney Parker and Nathan
Skeen. 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.
plaintiffs, Tamra Olsen-Ivie and her two adult children,
Samantha and David Olsen, brought this action for damages
incurred when Ms. Olsen-Ivie was allegedly dispensed the
wrong medication by a K-Mart pharmacist in January 2015. The
Complaint asserts that in July, 2015 Ms. Olsen-Ivie began
suffering from back pain as a result of a slip and fall at a
Costco store in Salt Lake County. She was treated at St.
Mark's Hospital, where her physician prescribed flexeril
to alleviate her pain. On January 8, 2015, Ms. Olsen-Ivie had
the prescription filled at a K-Mart pharmacy. The pharmacist
gave Ms. Olsen-Ivie a prescription bottle containing
medication. Ms. Olsen-Ivie took the pills as noted on the
bottle. The bottle, however, did not contain flexeril as
prescribed, but rather dilaudid, a different medication. As a
result of taking dilaudid, Ms. Olsen-Ivie allegedly suffered
severe injuries, including an injury to her brain.
filing this action, the plaintiffs obtained a certificate of
compliance from the Utah Division of Occupational and
Professional Licensing indicating compliance with the
pre-litigation requirements of the Utah Medical Malpractice
Act (“the Act”). Dkt. 17 Ex. B. In March, 2017,
the plaintiffs filed their Complaint in Utah state court.
Dkt. 2-1. The action was removed to this Court on April 5,
Complaint asserts two causes of action. The first is brought
by Ms. Olsen-Ivie alleging that the defendants breached the
required standard of care in dispensing her medication. As a
result of their negligence, she suffered general and special
damages in an amount to be determined at trial. Dkt. 2-1. The
second is brought by Samantha and David Olsen, Ms.
Olson-Ivie's adult children, alleging loss of consortium
due to the injuries sustained by their mother in an amount to
be determined at trial. Id.
response to an interrogatory by the defendants directed at
the amount of damages claimed to have been suffered as a
result of this incident, the plaintiffs incorporated by
reference a prior comprehensive demand for settlement which
states that the plaintiffs intend to seek in excess of five
million dollars in noneconomic damages. Dkt. 17 Ex. D, E. The
plaintiffs do not dispute this. The defendants move the Court
for summary judgment on the issue that the plaintiffs'
claims fall within the Act and the plaintiffs therefore may
not recover an award of noneconomic damages in excess of the
Act's limit of $450, 000.
plaintiffs oppose the defendants' motion to the extent it
calls for a limit on the combined potential recovery of all
of the plaintiffs' noneconomic damages at $450, 000. They
argue that the adult children's loss of consortium claims
are based on common law and not subject to the Act's
limitation on noneconomic damages.
judgment is appropriate if the movant “shows that there
is no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
The Utah Health Care Malpractice Act Applies to this
Malpractice Act provides:
[I]n a malpractice action against a health care provider, an
injured plaintiff may recover noneconomic losses to
compensate for pain, suffering, and inconvenience. The amount
of damages awarded for ...