Harper v. Evans

2008 UT App 66, 180 P.3d 1243, 2008 WL 597218
CourtCourt of Appeals of Utah
DecidedMarch 6, 2008
Docket20060984-CA
StatusPublished

This text of 2008 UT App 66 (Harper v. Evans) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harper v. Evans, 2008 UT App 66, 180 P.3d 1243, 2008 WL 597218 (Utah Ct. App. 2008).

Opinion

180 P.3d 1243 (2008)
2008 UT App 66

Sheila HARPER and Clayton Harper, Plaintiffs and Appellants,
v.
Keith H. EVANS, M.D.; Gary B. White, M.D.; and Uintah Basin Women's Health, Defendants and Appellees.

No. 20060984-CA.

Court of Appeals of Utah.

March 6, 2008.
Rehearing Denied April 23, 2008.

*1244 Cory B. Mattson, Sandy, for Appellants.

Robert G. Wright, Brandon B. Hobbs, and Zachary E. Peterson, Salt Lake City, for Appellees.

Before THORNE, Associate P.J., BENCH and ORME, JJ.

OPINION

THORNE, Associate Presiding Judge:

¶ 1 Sheila and Clayton Harper appeal from the district court's entry of summary judgment in favor of Keith H. Evans, M.D.; Gary B. White, M.D.; and Uintah Basin Women's Health (collectively, Defendants). We affirm.

BACKGROUND

¶ 2 In Fall 2002, Sheila Harper saw Evans for consultation and evaluation of several health issues, including excessive bleeding and cramping during her menstrual cycle. On November 15, 2002, Harper underwent a total abdominal hysterectomy performed by Evans and White.[1] As a part of the surgery, Evans and White reinforced Harper's bladder neck to prevent incontinence. Immediately following the surgery, Harper experienced pain radiating through her left flank. The cause of the pain was diagnosed as a blockage of the left ureter, and on November 16 Harper underwent a second surgery during which Evans performed a laparotomy and removed two sutures from Harper's left ureter. During the November 16 procedure, Evans also removed Harper's ovaries.

¶ 3 Harper continued to have pain and difficulty urinating, and she had multiple follow-up visits with Evans. Evans continued to inform Harper that her symptoms would resolve over time until April 7, 2003, when he first informed her that she was retaining urine after voiding. On April 14, Evans informed Harper that she may need to begin using a catheter. Evans referred Harper to Dr. Peggy Norton, and on May 12, 2003, Norton informed Harper that she had sustained nerve damage to her bladder. Further follow-up revealed that Harper's bladder had become distended in the months following the 2002 surgeries and would likely never *1245 regain normal function. In September 2003, Harper underwent bladder function tests and was informed by the treating nurse that had she received appropriate therapy from the time of the surgeries, her chances of a full recovery would have been very good.

¶ 4 On November 4, 2004, the Harpers served both the Utah Department of Occupational and Professional Licensing (DOPL) and Defendants with notice of their intent to commence a malpractice action. That same day, the Harpers requested a prelitigation panel review from DOPL. DOPL convened a panel on July 7, 2005, issued a panel opinion on July 14, 2005, and issued a certificate of compliance to the Harpers on July 18, 2005.

¶ 5 On January 17, 2006, the Harpers filed a complaint against Evans and Uintah Basin Women's Health, alleging negligence and failure to obtain informed consent to remove Harper's ovaries. The complaint identified the November 15 and 16, 2002 surgeries as the only treatment at issue performed by Evans. On February 1, 2006, the Harpers filed an amended complaint adding White as a defendant and asserting several new claims based on lack of informed consent. The amended complaint also identified the two November 2002 surgeries as the only treatment at issue provided by either Evans or White.

¶ 6 Defendants filed a motion for summary judgment, asserting that the Harpers' claims arising from the November 2002 surgeries were barred by the applicable statute of limitations. The Harpers opposed the motion, arguing for the first time in their opposition brief that Defendants' negligence occurred not during the original surgeries, but instead over the course of Evans's follow-up care.[2] The Harpers also argued that various statutory tolling provisions rendered their complaint timely even if their cause of action accrued in November 2002. The district court granted Defendants' motion, finding that the Harpers' claims accrued on November 16, 2002. Applying the statutory provisions identified by the Harpers, the district court found that the statute of limitations on the Harpers' claims expired on January 11, 2006. Accordingly, the district court found the Harpers' January 17 complaint to be untimely and entered summary judgment in favor of Defendants. The Harpers appeal.

ISSUE AND STANDARD OF REVIEW

¶ 7 The Harpers argue that the district court erred in granting summary judgment to Defendants on the ground that the Harpers' claims were barred by the applicable statute of limitations. We review a trial court's grant of summary judgment for correctness, according no deference to the trial court's legal conclusions. See Shaw Res. Ltd., L.L.C. v. Pruitt, Gushee & Bachtell, P.C., 2006 UT App 313, ¶ 20, 142 P.3d 560. In so doing, we view the facts and all reasonable inferences to be drawn therefrom in the light most favorable to the nonmoving party. See id. Further, "`[t]he applicability of a statute of limitations and the applicability of the discovery rule are questions of law, which we review for correctness.'" Moore v. Smith, 2007 UT App 101, ¶ 15, 158 P.3d 562 (quoting Russell Packard Dev., Inc. v. Carson, 2005 UT 14, ¶ 18, 108 P.3d 741), cert. denied, No. 20070404, 2007 Utah LEXIS 200 (Sept. 17, 2007).

ANALYSIS

¶ 8 The district court's order concluded that the two-year statute of limitations governing the Harpers' claims, see Utah Code Ann. § 78-14-4(1) (2002), as tolled or otherwise extended by statute, began running on November 16, 2002, and expired on January 11, 2006. The Harpers filed their complaint on January 17, 2006. On appeal, the Harpers raise three arguments that their complaint was actually timely filed. They invoke two judicial doctrines — the continuous negligent treatment rule and the discovery rule — in an attempt to establish that the statute of limitations on their claims should not have begun to run until as late as September 2003. And, they argue that even if the clock began running on November 16, 2002, proper application *1246 of the various relevant statutes results in a filing deadline of January 26, 2006. For the reasons stated herein, we reject each of the Harpers' arguments and affirm the order of the district court.

I. The Continuous Negligent Treatment Rule

¶ 9 The Harpers first argue that their negligence claim did not accrue until April 7, 2003, the last date that Evans provided treatment. Starting the statute of limitations clock on that date, the Harpers argue, would result in a February 15, 2006 deadline once applicable tolling statutes were applied. The Harpers base their argument for starting the limitations clock in April 2003 on the continuous negligent treatment rule first adopted in Peteler v. Robison, 81 Utah 535, 17 P.2d 244 (1932).

¶ 10 Under the continuous negligent treatment rule, where a patient is injured by a course of continuing negligent treatment by a health care provider, the cause of action does not accrue until the date of the final negligent act. See id. at 249; see also Schuurman v. Shingleton, 2001 UT 52, ¶ 20, 26 P.3d 227; Collins v. Wilson, 1999 UT 56, ¶ 11 n. 9, 984 P.2d 960 ("The continuous negligent treatment rule addresses a

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Bluebook (online)
2008 UT App 66, 180 P.3d 1243, 2008 WL 597218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harper-v-evans-utahctapp-2008.