Shah v. IHC , 314 P.3d 1079 ( 2013 )

2013 UT App 261_________________________________________________________
THE UTAH COURT OF APPEALS
ARUNA G. SHAH AND GHANSHYAM B. SHAH,
Plaintiffs and Appellants,
v.
INTERMOUNTAIN HEALTHCARE, INC.; KELLY MYERS; THOMAS D.
BAUMAN; GEORGE E. THOMSEN; JAMES ZEBRACK; AND
DAVID S. FEUER,
Defendants and Appellees.
Opinion
No. 20120402‐CA
Filed October 31, 2013
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 060903979
Kevin Sheff and Katherine L. Brim,
Attorneys for Appellants
Patrick L. Tanner, Attorney for Appellee
Intermountain Healthcare, Inc.
John D. Ference, Attorney for Appellee
Kelly Myers
Larry R. White and Paul D. Van Komen, Attorneys
for Appellee Thomas D. Bauman
George T. Naegle and Zachary E. Peterson,
Attorneys for Appellee George E. Thomsen
Catherine M. Larson and Peter J. Baxter, Attorneys
for Appellee James Zebrack
Shawn McGarry and Nan T. Bassett, Attorneys for
Appellee David S. Feuer
JUDGE JAMES Z. DAVIS authored this Opinion, in which JUDGES
CAROLYN B. MCHUGH and J. FREDERIC VOROS JR. concurred.
DAVIS, Judge:
Shah v. IHC
¶1 Aruna G. Shah and Ghanshyam B. Shah appeal the trial
court’s denial of their motion for leave to amend their complaint
against Intermountain Healthcare, Inc. (LDS Hospital), Dr. Kelly
Myers, Dr. Thomas D. Bauman, Dr. George E. Thomsen, Dr. James
Zebrack, and Dr. David S. Feuer (collectively, the Defendants). We
affirm.
BACKGROUND
¶2 The Shahs were involved in an automobile accident on
August 2, 2003, and Aruna was airlifted to LDS Hospital in Salt
Lake City for medical treatment. On the advice of Dr. Bauman,
Aruna underwent spinal stabilization surgery on August 8, 2003.
As a result of the accident, Aruna was suffering from a number of
health conditions at the time of surgery and experienced several
complications during the surgery, including heart failure.
Following the surgery, Aruna suffered from extensive muscle and
nerve dysfunction. On March 8, 2006, the Shahs filed a complaint
against LDS Hospital and Dr. Feuer, the vascular surgeon who
evaluated Aruna the day after her surgery, alleging medical
negligence and negligent infliction of emotional distress arising
from the treatment Aruna received at LDS Hospital following the
accident. The Shahs filed their First Amended Complaint on June
22, 2006, adding Dr. Myers, Dr. Bauman, Dr. Thomsen, and Dr.
Zebrack as defendants, and asserting claims of medical negligence
and negligent infliction of emotional distress against them as well.
¶3 On August 22, 2007, the Shahs moved for leave to file
another amended complaint and submitted a proposed Second
Amended Complaint to the court.1 This proposed complaint added
1. In fact, the proposed Second Amended Complaint was at least
the third in a series of attempts by the Shahs to amend their
complaint a second time and, according to the Defendants, was
(continued...)
20120402‐CA 2 2013 UT App 261Shah v. IHC
claims for racketeering against LDS Hospital and claims for breach
of fiduciary duty/fraudulent concealment,2 fraud, negligent
misrepresentation, breach of contract, breach of the implied
covenant of good faith and fair dealing, violation of the Utah
Consumer Sales Practices Act (UCSPA), intentional infliction of
emotional distress, res ipsa loquitur, civil conspiracy, quantum
meruit/unjust enrichment, and spoliation of evidence against all of
the Defendants. The Defendants opposed the Shahs’ motion to
amend on the ground that the newly alleged causes of action were
futile. The trial court heard oral argument on the Shahs’ motion on
November 30, 2007.
¶4 On December 11, 2007, the trial court denied the Shahs’
motion for leave to amend. In its written decision, the trial court
specifically rejected as futile the racketeering, quantum meruit,
breach of contract, breach of the covenant of good faith and fair
dealing, spoliation of evidence, “fraud‐based,” and UCSPA claims.
After completing its analysis of these claims, the court concluded
that “at least ten (10) of [the Shahs’] proposed claims would not
withstand a motion to dismiss” and that the court was “not
inclined to cherry pick the remaining claims that are potentially
adequately pled,” asserting that “presenting a proposed amended
complaint . . . is an all‐or‐nothing proposition.”
¶5 In July and August 2011, the Defendants moved for
summary judgment on the negligence claims, asserting that the
1. (...continued)
“nearly identical” to previous proposed amended complaints. The
trial court permitted oral argument on the Shahs’ August 22, 2007
motion for leave to amend because the Shahs claimed that the court
had failed to fully consider their prior motions. The proposed
Second Amended Complaint filed by the Shahs on August 22, 2007,
is the only one before us on appeal.
2. For simplicity, we refer to these claims simply as fraudulent
concealment.
20120402‐CA 3 2013 UT App 261Shah v. IHC
Shahs had failed to timely designate expert witnesses and that they
could not successfully prove their medical negligence claims
without expert testimony.3 The trial court granted summary
judgment in favor of the Defendants on April 10, 2012. On appeal,
the Shahs do not challenge the trial court’s summary judgment
ruling but assert only that the trial court erred in refusing to grant
them leave to amend their complaint with respect to the following
claims: “fraudulent concealment, fraud, negligent
misrepresentation, breach of contract, breach of the implied
covenant of good faith and fair dealing, and violations of the
UCSPA.”
ISSUE AND STANDARDS OF REVIEW
¶6 The Shahs assert that the trial court erred in denying them
leave to amend their complaint because it failed to individually
analyze the legal sufficiency of each of the Shahs’ claims and
because the claims were sufficient to withstand a motion to
dismiss. “The granting or denial of leave to amend a pleading is
within the broad discretion of the trial court, and we will not
disturb such a ruling absent a showing of an abuse of that
discretion.” Smith v. Grand Canyon Expeditions Co., 2003 UT 82, ¶ 31,
84 P.3d 1154. However, in this case, the trial court denied leave to
amend on grounds of futility because it determined that the
“proposed amendment would not withstand a motion to dismiss.”
See Jensen v. IHC Hosps., Inc. (Jensen II), 2003 UT 51, ¶ 139, 82 P.3d
1076 (citation and internal quotation marks omitted). Whether a
claim can withstand a motion to dismiss is a question of law, and
we therefore review the trial court’s underlying determination
regarding the legal sufficiency of the claim for correctness. See
Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1236 (11th Cir. 2008)
(holding that the trial court’s denial of a motion for leave to amend
based on futility is a legal conclusion reviewed de novo); Salt Lake
3. The Shahs previously abandoned their negligent infliction of
emotional distress claims.
20120402‐CA 4 2013 UT App 261Shah v. IHC
City Corp. v. Big Ditch Irrigation Corp., 2011 UT 33, ¶ 19, 258 P.3d 539(“Whether a court properly granted a 12(b)(6) motion to dismiss is
a question of law, which we review for correctness.”).
ANALYSIS
I. Sufficiency of the Trial Court’s Analysis
¶7 The Shahs first assert that the trial court erred in
determining that leave to amend was “an all‐or‐nothing
proposition” and rejecting their proposed Second Amended
Complaint in its entirety despite having analyzed the legal
sufficiency of only some of their claims. While it appears that we
have previously approved a trial court’s decision to deny a motion
for leave to amend in its entirety where one of three claims was
“potentially viable,” Francisconi v. Hall, 2008 UT App 166U, para.
15 (mem.), the trial court in that case had based its denial primarily
on its determination that the motion for leave to amend was
untimely, id. paras. 10–11. The likely futility of the claims was
merely an additional factor supporting the court’s decision. Id.para. 12. Rule 15 of the Utah Rules of Civil Procedure directs that
“leave [to amend] shall be freely given when justice so requires.”
Utah R. Civ. P. 15(a). Given that “[t]he purpose of [rule 15] is to
provide litigants the maximum opportunity for each claim to be
decided on its merits rather than on procedural niceties,” Minter v.
Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (emphasis
added) (citation and internal quotation marks omitted)
(interpreting the analogous rule 15 of the Federal Rules of Civil
Procedure), we are not convinced that the trial court’s all‐or‐
nothing approach was appropriate. Rather, in the absence of some
other justification for denying leave to amend, the trial court
should have analyzed the futility of each individual claim and then,
if there were no other grounds for precluding an amendment,
granted leave to amend as to those claims that were legally viable,
if any. Cf. Bartronics, Inc. v. Power‐One, Inc., 245 F.R.D. 532, 535–37,
539 (S.D. Ala. 2007) (denying the defendants’ motion to amend
20120402‐CA 5 2013 UT App 261Shah v. IHC
their answer and counterclaim in part on grounds of futility, but
rejecting the plaintiff’s argument that other claims were futile and
permitting amendment with respect to those claims); Plumley v.
Southern Container, Inc., 125 F. Supp. 2d 556, 560 n.2 (D. Me. 2000)
(suggesting that the best method for handling a situation where
only some claims asserted in a motion for leave to amend are
legally viable is “to allow amendment only of those claims for
which the proposed amendment would not be futile” and “for
counsel for a plaintiff [to] simply . . . file an appropriate amended
complaint after final disposition of the motion for leave to
amend”).
¶8 However, on appeal, the Shahs challenge the trial court’s
decision only with respect to their claims for “fraudulent
concealment, fraud, negligent misrepresentation, breach of
contract, breach of the implied covenant of good faith and fair
dealing, and violations of the UCSPA.”4 The trial court explicitly
4. The Shahs have only generally alluded to the remaining claims
that the trial court identified as “potentially adequately pled” and
have engaged in no analysis explaining why those specific claims
were well pled or asserting that they should be permitted to amend
their complaint as to those claims. The relevance of the Shahs’
argument regarding the trial court’s failure to specifically analyze
each claim appears to lie in their assertion that their fraudulent
concealment, fraud, and negligent misrepresentation claims were
among those that the trial court failed to specifically analyze in its
denial of their motion for leave to amend. They assert that “it is
impossible to know whether [the trial court] actually analyzed
these claims, or whether they were among those the court felt
justified in not evaluating.” However, the trial court explicitly
rejected all of the Shahs’ “fraud‐based” claims on the ground that
those claims lacked specificity. We therefore disagree with the
Shahs’ assertion that it is impossible to tell whether the court
analyzed their fraud‐based fraudulent concealment, fraud, and
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20120402‐CA 6 2013 UT App 261Shah v. IHC
addressed the futility of each of these claims. Specifically, the trial
court explained that the “breach of contract and breach of implied
covenant of good faith and fair dealing claims fail to identify an
underlying contract (be it implied or express)”; that the Shahs’
“fraud‐based claims . . . are lacking in specificity, including
connecting specific Defendants to specific fraudulent misconduct
or misrepresentations”; and that the UCSPA claim “is displaced by
the more specific malpractice act.” Thus, the trial court’s error in
declining to address the futility of the remaining claims does not
affect the outcome of this appeal. We therefore turn to the question
of whether the trial court correctly determined that the six claims
that are the subject of this appeal were legally insufficient and
therefore futile.
II. Legal Sufficiency of the Shahs’ Claims
¶9 “It is well settled that a court may deny a motion to amend
as futile if the proposed amendment would not withstand a motion
to dismiss . . . .” Jensen II, 2003 UT 51, ¶ 139 (omission in original)
(citation and internal quotation marks omitted). Rule 12(b)(6) of the
Utah Rules of Civil Procedure permits dismissal of a complaint for
“failure to state a claim upon which relief can be granted.” Utah R.
Civ. P. 12(b)(6). “[A] complaint does not fail to state a claim unless
it appears to a certainty that the plaintiff would be entitled to no
relief under any state of facts which could be proved in support of
the claim.” Mack v. Utah State Dep’t of Commerce, 2009 UT 47, ¶ 17,
221 P.3d 194 (citation and internal quotation marks omitted).
4. (...continued)
negligent misrepresentation claims—it is clear to us that the trial
court did so. They also vaguely suggest that the trial court’s lack of
analysis alone justifies reversal of its entire decision denying leave
to amend, regardless of whether the particular claims they appeal
were adequately analyzed. But again, the Shahs have failed to
provide any support for this argument.
20120402‐CA 7 2013 UT App 261Shah v. IHC
Having examined each of the Shahs’ proposed claims, we agree
that they are futile.
A. Fraudulent Concealment, Fraud, and Negligent
Misrepresentation
¶10 The trial court determined that the Shahs’ “fraud‐based
claims” lacked specificity and failed to “connect[] specific
Defendants to specific fraudulent misconduct or
misrepresentations.” Rule 9(b) of the Utah Rules of Civil Procedure
mandates that “circumstances constituting fraud . . . shall be stated
with particularity.” Utah R. Civ. P. 9(b). “[T]he mere recitation by
a plaintiff of the elements of fraud in a complaint does not satisfy
the particularity requirement.” Armed Forces Ins. Exch. v. Harrison,
2003 UT 14, ¶ 16, 70 P.3d 35. “The relevant surrounding facts must
be set forth with sufficient particularity to show what facts are
claimed to constitute such charges.” Id. (citations and internal
quotation marks omitted). Additionally, in order to plead fraud
with particularity, the plaintiff must “identify the offender” rather
than simply describe misrepresentations in the passive voice.
Coroles v. Sabey, 2003 UT App 339, ¶ 28, 79 P.3d 974; see also Webster
v. JP Morgan Chase Bank, NA, 2012 UT App 321, ¶ 19, 290 P.3d 930(“Rule 9 requires that a plaintiff not only allege facts to establish
the elements of a fraud claim but also recite [t]he relevant
surrounding facts, such as the identity of the person who made the
alleged misrepresentation[] and the time and location at which it
was uttered.” (citation and internal quotation marks omitted)); cf.
Dileo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990) (explaining
that the particularity requirement of the analogous rule 9 of the
Federal Rules of Civil Procedure requires that the complaint
include “the who, what, when, where, and how”). With respect to
the Shahs’ fraud‐based claims (fraudulent concealment, fraud, and
negligent misrepresentation) against most of the Defendants, we
agree with the trial court that the claims do not comply with the
particularity requirement.
¶11 “Fraudulent concealment requires that one with a legal duty
or obligation to communicate certain facts remain silent or
20120402‐CA 8 2013 UT App 261Shah v. IHC
otherwise act to conceal material facts known to him.” Jensen v. IHC
Hosps., Inc. (Jensen I), 944 P.2d 327, 333 (Utah 1997); see also Nixdorf
v. Hicken, 612 P.2d 348, 354 (Utah 1980) (“The relationship between
a doctor and his patient creates a duty in the physician to disclose
to his patient any material information concerning the patient’s
physical condition.”). Fraud requires proof
(1) that a representation was made (2) concerning a
presently existing material fact (3) which was false
and (4) which the representor either (a) knew to be
false or (b) made recklessly, knowing that there was
insufficient knowledge upon which to base such a
representation, (5) for the purpose of inducing the
other party to act upon it and (6) that the other party,
acting reasonably and in ignorance of its falsity, (7)
did in fact rely upon it (8) and was thereby induced
to act (9) to that party’s injury and damage.
Armed Forces Ins. Exch., 2003 UT 14, ¶ 16 (citation and internal
quotation marks omitted). The elements of negligent
misrepresentation are similar to those of fraud except that
negligent misrepresentation “does not require the intentional
mental state necessary to establish fraud.” Price–Orem Inv. Co. v.
Rollins, Brown & Gunnel, Inc., 713 P.2d 55, 59 n.2 (Utah 1986); see also
Smith v. Frandsen, 2004 UT 55, ¶ 9, 94 P.3d 919 (explaining that
negligent misrepresentation may be established where the false
representation is made “carelessly or negligently” with the
expectation that it will be relied on (citation and internal quotation
marks omitted)).
¶12 The Shahs assert generally that all of the Defendants failed
to provide them with complete and accurate information regarding
Aruna’s health and treatment after she received that treatment and
therefore breached their fiduciary duty to her and conducted acts
of fraud or negligent misrepresentation. However, as to all causes
of action other than fraud and negligent misrepresentation against
Dr. Bauman, see infra ¶ 13, the Shahs fail to explain which
20120402‐CA 9 2013 UT App 261Shah v. IHC
defendants had what knowledge, which defendants made what
statements, or how the Defendants specifically breached their
individual fiduciary duties. The Shahs assert that additional
discovery is necessary in order to identify which individuals did
what. But “a plaintiff alleging fraud must know what his claim is
when he files it.” Farlow v. Peat, Marwick, Mitchell & Co., 956 F.2d
982, 990 (10th Cir. 1992) (interpreting rule 9(b) of the Federal Rules
of Civil Procedure), overruled on other grounds by Central Bank v.
First Interstate Bank, 511 U.S. 164 (1994), as recognized by Seolas v.
Bilzerian, 951 F. Supp. 978, 982 (D. Utah 1997). “[A] complaint
alleging fraud should be filed only after a wrong is reasonably
believed to have occurred; it should serve to seek redress for a
wrong, not to find one.” Segal v. Gordon, 467 F.2d 602, 607–08 (2d
Cir. 1972); cf. Downtown Athletic Club v. Horman, 740 P.2d 275, 278
(Utah Ct. App. 1987) (explaining that in determining whether to
grant an extension to permit discovery prior to hearing a motion
for summary judgment, the trial court should consider whether the
facts sought through discovery are merely speculative). Thus, the
Shahs’ general assertion of wrongdoing against the Defendants
does not meet the particularity requirement as to the three fraud‐
based claims.
¶13 The Shahs do plead with particularity their claims of fraud
and negligent misrepresentation against Dr. Bauman. They cite a
number of allegedly knowing false statements made to them by Dr.
Bauman, which they maintain “induce[d them] to undergo the
expensive, elective spinal stabilization surgery at LDS Hospital
instead of deciding to transport [Aruna] to [a hospital near her
home in] Colorado or opting for a less expensive, non‐surgical
course of treatment such as bed rest.” Dr. Bauman argues that any
alleged falsity of his statements, particularly regarding Aruna’s risk
of paralysis, her stability prior to surgery, and the allergic reaction
she suffered during surgery were beyond the ken of a lay person
and needed to be established by expert testimony. We agree.5 See
5. The Shahs assert that the existence of “medical facts underlying
(continued...)
20120402‐CA 10 2013 UT App 261Shah v. IHC
Nixdorf, 612 P.2d at 352 (“[T]he nature of the [medical] profession
removes the particularities of its practice from the knowledge and
understanding of the average citizen.”). Dr. Bauman asserts that
the Shahs’ fraud and negligent misrepresentation claims required
expert testimony on the same facts that were the subject of the
negligence claims and that because the trial court prohibited expert
testimony on those facts due to the Shahs’ failure to timely disclose
experts, we should affirm the trial court’s determination that the
claims would have been futile.
¶14 The Shahs respond that summary judgment was granted
only as to the negligence claims and that it therefore did nothing to
preclude the proposed claims in the motion for leave to amend.
While the summary judgment resolved different claims than those
the Shahs now seek to bring, many of those claims are based on the
same underlying facts as the negligence claims. The trial court’s
ruling that the Shahs’ lack of expert testimony precluded them
from establishing facts necessary to their prima facie case of
negligence implicitly adjudicated the Shahs’ ability to establish
those same facts with respect to any other claims as well. Cf. Timm
v. Dewsnup, 851 P.2d 1178, 1182 (Utah 1993) (holding that the trial
court did not err in determining that the defendants’ motion to
amend their counterclaim was futile as to their reformation claim
because the trial court’s ruling that the defendants owed certain
amounts on a contract “implicitly and necessarily constituted an
adverse ruling” against the defendants on the issue of whether the
5. (...continued)
the amended claims . . . is objectively verifiable from the record,”
but fail to explain where in the record those facts are objectively
established. Their argument focuses primarily on their assertion
that the trial court precluded expert testimony only as to their
negligence claims. See infra ¶ 14. Thus, we do not further consider
the Shahs’ assertion that expert testimony was unnecessary to
establish their fraud claims. See generally State v. Garner, 2002 UT
App 234, ¶ 8, 52 P.3d 467 (“It is well established that Utah appellate
courts will not consider claims that are inadequately briefed.”).
20120402‐CA 11 2013 UT App 261Shah v. IHC
contract reflected their intentions, on which their reformation claim
depended). Thus, to the extent that the same factual issues that
were relevant to the negligence claims are relevant to the Shahs’
other claims, the propriety of the trial court’s denial of their motion
for leave to amend is moot; permitting the Shahs to amend their
complaint would be futile because they could not present expert
testimony pertaining to any factual issues that were necessary to
the negligence claims. See Jensen II, 2003 UT 51, ¶¶ 146–47, 82 P.3d
1076 (holding that a jury’s finding that a defendant doctor was not
negligent rendered moot a claim for fraudulent concealment based
on that negligence and that the plaintiff’s motion to amend to add
a claim imputing liability to the hospital for the doctor’s fraud was
therefore futile).
¶15 The negligence alleged against Dr. Bauman included
“[m]isleading [the Shahs] into believing that [Aruna] had
experienced an allergic reaction during the spinal surgery” and
“[f]ailing to disclose material information to [the Shahs].” These are
the same allegations on which the fraud and negligent
misrepresentation claims were based and would require the same
expert testimony to establish. Thus, the Shahs’ failure to timely
designate experts on these factual issues precludes them from
further pursuing their fraud and negligent misrepresentation
claims against Dr. Bauman.
B. Breach of Contract and Breach of the Implied Covenant of
Good Faith and Fair Dealing
¶16 “The elements of a prima facie case for breach of contract are
(1) a contract, (2) performance by the party seeking recovery, (3)
breach of the contract by the other party, and (4) damages.” Bair v.
Axiom Design, LLC, 2001 UT 20, ¶ 14, 20 P.3d 388. “An implied
covenant of good faith and fair dealing inheres in every contract,”
and a party breaches the covenant by intentionally injuring “the
other party’s right to receive the benefits of the contract.” Eggett v.
Wasatch Energy Corp., 2004 UT 28, ¶ 14, 94 P.3d 193.
20120402‐CA 12 2013 UT App 261Shah v. IHC
¶17 The trial court initially denied the Shahs’ motion to amend
with respect to their contract‐based claims because it determined
that the Shahs had “fail[ed] to identify an underlying contract (be
it implied or express).” We agree with the Shahs that the
physician–patient relationship is contractual insofar as it
constitutes an agreement to provide professional services in return
for financial compensation and that the Shahs’ complaint
specifically identified contractual relationships between Aruna and
LDS Hospital and between Aruna and Dr. Bauman.6 See Utah Code
Ann. § 78B‐3‐403(23) (LexisNexis Supp. 2013) (defining a patient as
“a person who is under the care of a health care provider, under a
contract, express or implied”); Sorensen v. Barbuto, 2006 UT App
340, ¶ 7, 143 P.3d 295 (rejecting a defendant’s claim that a
contractual relationship between a patient and a physician must
necessarily be demonstrated by a written contract), aff’d, 2008 UT
8, 177 P.3d 614.
¶18 To the extent that the Shahs’ claims allege that the
Defendants breached their contractual obligations to Aruna “by
failing to provide professional health care services in accordance
with generally accepted standards of professionalism and good
faith,” we agree with the Defendants that the proposed amendment
is simply an effort to clothe the negligence claims in contractual
language. See Utah Code Ann. § 78B‐3‐403(17) (“‘Malpractice action
against a health care provider’ means any action against a health
care provider, whether in contract, tort, breach of warranty,
wrongful death, or otherwise, based upon alleged personal injuries
relating to or arising out of health care rendered or which should
have been rendered by the health care provider.”); cf. McLaughlin
6. Given that the Shahs refer generally to contractual relationships
between Aruna and the other defendants and fail to specifically
identify how and when those contractual relationships arose, we
question whether their pleading was sufficient to allege contract
claims against those defendants. However, we need not resolve this
issue in light of our determination that the contract claims were
nevertheless futile. See infra ¶¶ 18–19.
20120402‐CA 13 2013 UT App 261Shah v. IHC
v. Schenck, 2009 UT 64, ¶¶ 39–41, 220 P.3d 146 (determining that a
plaintiff’s attempt to amend his complaint by adding parties and
recasting his contract‐based fiduciary duty claim as a tort‐based
claim was futile because both claims were based on the same
underlying facts). Because the same facts necessary to prove
medical negligence are necessary to prove breach of contract based
on the failure to provide adequate professional health services, the
Shahs’ failure to timely file their expert disclosures makes the trial
court’s denial of their motion to amend on this issue moot, and
amendment now would be futile.
¶19 To the extent that the Shahs’ claims are based on the
Defendants’ alleged contractual obligations to provide the Shahs
with Aruna’s complete medical chart and to inform them of
“material information concerning [her] physical condition,” the
Shahs have failed to allege that any contracts between the Shahs
and the Defendants gave rise to a duty to provide medical
information or complete medical records. The duty to provide such
information is a common law fiduciary duty arising out of the
physician–patient relationship and does not necessarily inhere as
a result of a contract to provide medical services. See Nixdorf v.
Hicken, 612 P.2d 348, 354 (Utah 1980) (explaining, in the context of
a negligence claim, that the physician–patient relationship “creates
a duty in the physician to disclose to his patient any material
information concerning the patient’s physical condition”); cf.
Sorensen, 2006 UT App 340, ¶ 10 (explaining that a physician’s
breach of the duty of confidentiality is actionable in tort, not
contract). Thus, even to the extent that the contract claims may not
require the excluded expert testimony, the Shahs have failed to
state a cause of action for which relief can be granted, rendering
their contract claims futile.
C. Violations of the UCSPA
¶20 Finally, we agree with the trial court that the Shahs’ UCSPA
claim is merely another attempt to litigate the negligence claims
under another name. The UCSPA establishes a cause of action for
20120402‐CA 14 2013 UT App 261Shah v. IHC
consumers against suppliers for deceptive and unconscionable acts
and practices in connection with consumer transactions. See Utah
Code Ann. §§ 13‐11‐4 to ‐5 (LexisNexis 2009 & Supp. 2013). The
Shahs’ proposed Second Amended Complaint asserts that the
“Defendants knowingly and intentionally engaged in deceptive
acts and fraudulent practices . . . by indicating to [the Shahs] that
the subject of the consumer transactions was of a particular
standard, quality and quantity, when it was not” and “by failing to
disclose material information concerning [Aruna’s] physical
condition.” In other words, the Shahs claim that the Defendants did
not provide them with appropriate and professional medical care.
This claim falls squarely within the purview of the medical
malpractice statute. See id. § 78B‐3‐403(17) (Supp. 2013). The Shahs
assert that they are entitled to bring a UCSPA claim even if it
overlaps with their negligence claims. See id. § 13‐11‐19(1), (3)
(indicating that “[w]hether he seeks or is entitled to damages or
otherwise has an adequate remedy at law,” a consumer may bring
an individual or class action “for declaratory judgment, an
injunction, and appropriate ancillary relief”). However, even
accepting this assertion as true, the Shahs’ lack of expert testimony
once again precludes them from establishing that the Defendants
provided Aruna with inadequate medical care.
CONCLUSION
¶21 Although we agree with the Shahs that the trial court should
have addressed the potential merit of each claim raised in their
proposed Second Amended Complaint, its failure to do so does not
affect the outcome of this appeal because the trial court did address
each of the claims raised by the Shahs on appeal. Because each of
those claims is futile, we affirm the trial court’s denial of the Shahs’
motion for leave to amend their pleadings.
20120402‐CA 15 2013 UT App 261