Direct Appeal Third District, Salt Lake The Honorable Judge
Patrick Coram No. 170900215
L. Walton, Diana J. Huntsman, Russell D. Gray, Kristen R.
Shill, Midvale, for appellant
L. Booher, Beth E. Kennedy, Bradley R. Blackham, Timothy J.
Bywater, Salt Lake City, for appellee
Justice Pearce authored the opinion of the Court in which
Chief Justice Durrant, Associate Chief Justice Lee, Justice
Himonas, and Justice Petersen joined.
Cheryl Amundsen wants to bring a medical malpractice claim
against the University of Utah for, among other things,
injuries she suffered during a surgery performed at LDS
Hospital by a University of Utah School of Medicine
professor. The University is a State entity for purposes of
the Utah Governmental Immunity Act (UGIA). And the UGIA is a
deliberately stingy piece of legislation that outlines strict
requirements a plaintiff must satisfy to file suit against a
The UGIA requires a plaintiff to give notice of her claim to
the State within one year of the date the plaintiff knew, or
through the exercise of reasonable diligence should have
known, that she had a claim against a State entity or
employee. Amundsen argues that her notice of claim was timely
because she filed it within a year of when she knew or should
have known that she had a claim against the University. The
district court disagreed and dismissed her case.
We side with the district court. Although Amundsen's
surgery took place at LDS Hospital, Amundsen had consulted
with her surgeon at a University clinic multiple times and
received an itemization from the University for his services.
This was sufficient information to put a reasonable person on
notice that her claim might be against the State. And because
Amundsen had reason to inquire long before she filed her
notice of claim, her notice was untimely. Amundsen's
arguments to the contrary, including those based on the
doctrine of res judicata and the Open Courts provision of the
Utah Constitution, are without merit. Accordingly, we affirm.
"On appeal from a district court's decision granting
a motion to dismiss, we view the facts pled in the complaint
and all reasonable inferences from them in the light most
favorable to the plaintiff." Scott v. Universal
Sales, Inc., 2015 UT 64, ¶ 4, 356 P.3d 1172. Where
appropriate, we also consider materials submitted in relation
to the motion. We recite the facts consistent with this
Cheryl Amundsen visited the University of Utah Avenues Clinic
three times between August 2011 and October 2013. On each
visit she saw Dr. Mark Dodson, who worked as a professor in
the University's Department of Obstetrics and Gynecology.
Dr. Dodson was a full-time employee of the University, and in
that role he provided clinical services to patients at the
University of Utah Avenues Clinic.
On October 30, 2013, Dr. Dodson performed surgery on
Amundsen. The surgery took place at LDS Hospital, pursuant to
privileges the hospital granted Dr. Dodson. Amundsen alleges
that during the surgery, Dr. Dodson injured her colon. As a
result of that injury and the complications that followed,
Amundsen underwent additional procedures and several months
of intensive wound care.
On October 2, 2014, pursuant to the Utah Health Care
Malpractice Act, Utah Code § 78B-3-401 et seq., which is
a statutory scheme separate and apart from the UGIA, Amundsen
served a notice of intent to commence action on several
entities including University of Utah Health Care, Dr.
Dodson, and LDS Hospital, see id. §
78B-3-412(1)(a) (requiring a notice of intent to commence
action before filing a malpractice action against a health
care provider). In that notice, Amundsen identified Dr.
Dodson as "a gynecological oncologist who works at
OB-GYN Avenues Clinic, which is part of University of Utah
Amundsen subsequently dismissed her allegations against
University of Utah Health Care and LDS Hospital, but she
obtained a certificate of compliance with respect to Dr.
Dodson. She then filed suit against him; and in
May 2016, Dr. Dodson moved to dismiss on the basis that he
was employed by the University and entitled to immunity under
the UGIA. See Utah Code § 63G-7-101 et seq.
Amundsen did not oppose the motion, and the claims against
Dr. Dodson were dismissed.
Amundsen then filed an amended complaint naming the
University as a defendant. The University moved to dismiss,
asserting in part that Amundsen had not timely filed a notice
of claim as the UGIA requires. See id. §
63G-7-401. Amundsen conceded that the case should be
dismissed based on her failure to comply with the UGIA's
notice requirement. But she sought dismissal without
prejudice, asserting she had not known Dr. Dodson was an
employee of the University until he filed his motion to
dismiss. Although the moving papers are not in the record on
appeal, it appears that Amundsen claimed that prior to
receiving Dr. Dodson's motion, she did not have reason to
know about his employment with the University. And it appears
that she argued that the period for her to file a notice of
claim had not expired. The University, in contrast, argued
that the dismissal should be with prejudice.
The district court dismissed the case without prejudice. The
court ruled it could not conclude, as a matter of law, which
Amundsen knew prior to May 2016 that Dr. Dodson was an
employee of the University and that the period for filing a
notice of claim had therefore elapsed. Because the district
court could not draw this conclusion as a matter of law, it
decided a dismissal without prejudice was the appropriate
Shortly thereafter, in September 2016, Amundsen filed a
notice of claim informing the State of Utah of her potential
claims against the University. She then initiated this
lawsuit against the University. She asserted claims of
negligence and loss of consortium predicated on the services
Dr. Dodson provided and the surgery he performed.
The University again moved to dismiss, asserting in part that
Amundsen had failed to serve a notice of claim on the State
of Utah within the one-year time period the UGIA requires.
The University argued that Amundsen had served her
"notice of claim nearly three years after the medical
treatment and care at issue in this case was provided and
nearly two years after serving a notice of intent to commence
legal action against the University." And while Amundsen
"may not have known [until May 2016] whether Dr. Dodson
was employed by the University” Amundsen was, by
October 2014, "aware of facts that would lead an
ordinary person, using reasonable diligence, to conclude that
a claim for negligence may exist."
Amundsen raised three main points in opposition. First, she
noted that in her prior suit against the University, the
district court had stated it was unable to "conclude as
a matter of law that [she] knew prior to ... [May] 2016 
that Dr. Dodson was an employee of the University and that
the one-year statutory notice requirements under the UGIA had
not [been] tolled." (Emphasis omitted.) On that basis,
Amundsen argued the University was collaterally estopped from
reasserting, in this proceeding, that her claims were
Second, Amundsen contended that her notice of claim had been
timely filed. Acknowledging that a notice of claim must be
filed "within one year after the claim arises,"
UTAH CODE § 63G-7-402, she noted that the one-year
period does not begin to run "until [the] claimant knew,
or with the exercise of reasonable diligence should have
known ... that the claimant had a claim against the
governmental entity or the governmental entity's
employee; and ... the identity of the governmental entity or
the name of the employee," id. §
63G-7-401(1)(b). According to Amundsen, she did not know Dr.
Dodson was an employee of the University until he filed his
motion to dismiss in May 2016, and prior to that time she
"did not have information sufficient to put a reasonable
person on inquiry notice that she had a cause of action
against the University."
Third, Amundsen argued that "[t]he extension of immunity
to non-governmental medical services violates the Open
Court[s] provision of the Utah Constitution."
See Utah Const, art. I, § 11. Amundsen asserted
that, by extending immunity to "all functions of
government, no matter how labeled," see Utah
Code § 63G-7-101(2)(a), the legislature had abrogated a
cause of action without providing an effective or reasonable
alternative remedy. Amundsen also asserted that the
University received too little governmental funding to
receive immunity under the UGIA, and that the State had
waived any claim of immunity by failing to create a
searchable database of State entities.
The district court reviewed the evidence before deciding
whether Amundsen had timely filed her notice of claim. That
evidence included documents the University submitted in
support of its motion to dismiss. The record before the court
thus included the following:
• the allegations in Amundsen's complaint asserting
that, between 2011 and 2013, she had multiple visits with Dr.
Dodson at the University of Utah Avenues Clinic;
• Amundsen's October 2014 notice of intent to
commence action, in which she identified Dr. Dodson as
"a gynecological oncologist who works at OB-GYN Avenues
Clinic, which is part of University of Utah Health
• a consent to service form Amundsen signed in October
2013, in connection with her surgery at LDS Hospital, which
indicated that "some of the physicians ... providing
health care services to [her] [were] independent
contractors," she would "consider them independent
contractors unless [she] receive[d] written notice" to
the contrary, "[s]ome of those independent contractors
may be employees of the State of Utah, University of Utah
faculty, University of Utah School of Medicine, or other
training programs," and the UGIA "controls all
claims of liability or malpractice against University or
State employees"; and
• a December 2014 itemization of services form on
University of Utah Health Care letterhead, addressed to
Amundsen, which covered services provided ...