Utah Supreme Court Affirms Viability Of Fraudulent Concealment Medical Malpractice Claim

The Supreme Court of the State of Utah (“Utah Supreme Court”) held in its opinion dated February 18, 2020: “We affirm the denial of defendants’ motions to dismiss. In so doing we conclude that the statutory tolling provisions in Utah Code section 78B-3-404(2) apply to both the two-year limitations period and the four-year repose period in section 78B-3-404(1). We also hold that responses to affirmative defenses are not subject to the pleading requirements of rules 8 and 9 of the Utah Rules of Civil Procedure. And we hold that the “foreign object” exception in section 78B-3-404(2) does not apply here and that negligent credentialing claims are not foreclosed by retroactive application of section 78B-3-425. We accordingly remand for further proceedings consistent with this opinion.”

The Underlying Facts

The three Utah medical malpractice plaintiffs are former patients of Dr. Sherman Sorensen. The plaintiffs allege that Sorensen performed unnecessary heart surgery on them at Salt Lake City’s St. Mark’s Hospital and Murray’s Intermountain Medical Center between 2008 and 2011 (the plaintiffs were three of many similarly situated plaintiffs who filed similar claims against the defendants).

Around 2017, each of the plaintiffs saw advertising for a medical malpractice attorney who specializes in actions arising from similar surgeries. They sought review of their legal claims by the Utah Department of Occupational and Professional Licensing (DOPL) Prelitigation Review Panel, which found the claims meritorious and issued certificates of compliance. Each former patient then filed suit against Sorensen, his business entity, and either St. Mark’s Hospital or IHC Health Services, Inc., which operates the Intermountain Medical Center.

In each of the three cases, the defendants moved to dismiss on the ground that the plaintiffs’ claims were time-barred under the Utah Health Care Malpractice Act (the Act). Citing the Act’s two-year limitations period and its four-year repose period, UTAH CODE § 78B-3-404, defendants asserted that the claims were time-barred given that the latest surgery was performed in 2011 and the lawsuits were not filed until 2017. They also contended that the time bar was not tolled by either the “foreign object” or “fraudulent concealment” exceptions set forth in the statute. § 78B-3-404(2). The defendants opposed tolling under the latter exception on the ground that the plaintiffs had failed to allege fraudulent concealment with the “particularity” required by rule 9(c) of the Utah Rules of Civil Procedure. One of the defendants raised a separate challenge to the plaintiffs’ “negligent credentialing” claim, asserting that it was barred by retroactive
application of a statute enacted in 2011. UTAH CODE § 78B-3-425.

The motions to dismiss were denied in large part. All three district judges held that the defendants had failed to establish that the plaintiffs’ claims were time-barred as a matter of law. One of the three judges granted the motion to dismiss as to the negligent credentialing claim against St. Mark’s.

Utah Supreme Court Opinion

Fraudulent Concealment

The Utah Supreme Court held that “the discovery of a foreign object left in a patient or the fraudulent concealment of alleged misconduct may extend either the limitations period or the repose period by one year … The foreign object and fraudulent concealment provisions are not independent time bars; they are exceptions that may extend the otherwise “conflicting” limitations and repose periods found in Utah Code section 78B-3-404(1).”

“Under section 404(2)(b) the first question is whether plaintiffs were “prevented from discovering misconduct on the part of a health care provider because that health care provider has affirmatively acted to fraudulently conceal the alleged misconduct.” UTAH CODE § 78B-3-404(2)(b). If such fraudulent concealment is shown, an otherwise time-barred claim is timely if “commenced within one year after the plaintiff or patient discovers, or through the use of reasonable diligence, should have discovered the fraudulent concealment, whichever first occurs.””

Pleading Fraudulent Concealment

The Utah Supreme Court held: “we hold that a plaintiff has no obligation to plead fraudulent concealment under Utah Code section 78B-3-404(2) with particularity—or even at the level of “notice pleading” required by rule 8(a). Because fraudulent concealment under this statute is not an element of a defense, but just an anticipatory response to an expected affirmative defense, there is no pleading obligation on the plaintiff’s part. The plaintiff is entitled to ignore the question of fraudulent concealment altogether—to wait to see whether the defendant will raise a time-bar defense in an answer, and to address that defense through other procedural mechanisms as they present themselves later.” However, “a plaintiff who includes detailed allegations of relevance to an anticipated statute of limitations defense (and her anticipated response thereto) does so at her peril. Where a motion to dismiss is filed based on the anticipated defense, the district court is entitled to either rule on the pleadings or to allow the parties to convert the motion to a motion for summary judgment if further factual development is necessary.”

The Utah Supreme Court stated, “[b]ecause plaintiffs had no burden of pleading fraudulent concealment (with particularity or otherwise), the only question is whether they pleaded themselves out of court with the detail they chose to include in their complaints—by pleading detail that was not required, but that nonetheless established that their claims were time-barred as a matter of law. And we conclude that they did not.”

The Utah Supreme Court held: “Plaintiffs thus made all of the allegations that the Act requires in order to toll the statute of limitations period. Again, they had no obligation to plead the terms and conditions of fraudulent concealment.”

Source Bright v. Sorensen, 2020 UT 7.

If you or a loved one may have been injured as a result of medical malpractice in Utah or in another U.S. state, you should promptly find a Utah medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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