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Amundsen v. University of Utah

Supreme Court of Utah

August 15, 2019

Cheryl Amundsen, Appellant,
v.
University of Utah, Appellee.

          On Direct Appeal Third District, Salt Lake The Honorable Judge Patrick Coram No. 170900215

          Sherri L. Walton, Diana J. Huntsman, Russell D. Gray, Kristen R. Shill, Midvale, for appellant

          Troy 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.

          PEARCE JUSTICE.

         INTRODUCTION

         ¶1 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 State entity.

         ¶2 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.

         ¶3 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.

         BACKGROUND

         ¶4 "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.[1] We recite the facts consistent with this standard.

         ¶5 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.

         ¶6 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.

         ¶7 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 Health Care."

         ¶8 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.[2] 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.

         ¶9 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.

         ¶10 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 course.

         ¶11 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.

         ¶12 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."

         ¶13 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 time-barred.

         ¶14 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."

         ¶15 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.

         ¶16 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 Care";
• 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 ...

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