Appeal of Interlocutory Order Third District, Salt Lake The
Honorable Judge Barry G. Lawrence No. 150900735
Charles H. Thronson, Nicholas Bernard, Salt Lake City, for
L. Booher, Beth E. Kennedy, Alexandra Mareschal, Salt Lake
City, for appellants 
Justice Pearce authored the opinion of the Court in which
Chief Justice Durrant, Associate Chief Justice Lee, Justice
Himonas and Judge Toomey joined.
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. Justice Pearce, opinion of the Court:
1 On interlocutory appeal, we are asked to decide whether a
request for prelitigation review-a step the Utah Healthcare
Malpractice Act (UHMA) mandates a plaintiff take before
filing a medical malpractice suit-tolls one of the limitation
periods for filing that suit. The district court decided that
it did. We agree that it does and affirm.
2 The only facts relevant to this appeal are those that speak
to the chronology. Erik Jensen received surgical treatment
for abdominal pain and cramping on March 26, 2010. On April
1, 2010, Jensen suffered cardiac arrest. Jensen claims that
medical staff failed to properly resuscitate him and provided
negligent post-surgical care.
3 On March 21, 2014, Jensen filed a notice of intent to sue
and a request for prelitigation review. Jensen received a
certificate of compliance on December 26, 2014,
filed suit on February 2, 2015.
4 Intermountain Healthcare, Inc., IHC Health Services, Inc.
dba LDS Hospital, and IHC Health Services, Inc. dba
Intermountain Medical Group (collectively "IHC")
moved for summary judgment arguing that UHMA's four-year
limitation period for medical malpractice actions barred
Jensen's suit. The district court concluded that
Jensen's request for prelitigation proceedings tolled the
time to file during the period he spent waiting for the
prelitigation review to conclude. IHC appeals.
AND STANDARD OF REVIEW
5 The single question before us asks whether the district
court erred when it denied IHC's summary judgment motion.
This requires us to examine whether filing a request for
prelitigation review tolls the four-year period for filing
suit. This presents a statutory construction question that we
review for correctness. See Bishop v. GenTec Inc.,
2002 UT 36, ¶ 8, 48 P.3d 218.
6 To understand better the question this case presents, it is
helpful to appreciate UHMA and the hurdles it requires a
prospective plaintiff to clear before filing an action.
7 First, UHMA requires a plaintiff to file a "notice of
intent to commence an action." Utah Code §
78B-3-412(1)(a). This notice must be sent to the prospective
defendant and must include "(a) a general statement of
the nature of the claim; (b) the persons involved; (c) the
date, time, and place of the occurrence; (d) the
circumstances surrounding the claim; (e) specific allegations
of misconduct on the part of the prospective defendant; and
(f) the nature of the alleged injuries and other damages
sustained." Id. § 78B-3-412(1)(a), (2),
8 Second, a plaintiff must present the claim to a
prelitigation panel. Id. § 78B-3-416(2)(a).
UHMA requires that the plaintiff file the request for
prelitigation panel review within sixty days of filing the
notice of intent to commence action. Id. The
prelitigation panel proceedings are, in the statute's
words, "informal [and] nonbinding" but also
"compulsory as a condition precedent to
commencing litigation." Id. §
78B-3-416(1)(c) (emphasis added). The division has 180 days
after the request is filed to "complete a prelitigation
hearing," or longer if all parties agree. Id.
§ 78B-3-416(3)(b). After it completes its review, the
hearing panel issues an opinion and a certificate
acknowledging that the ...