Jensen v. Intermtn. Healthcare , 424 P.3d 885 ( 2018 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2018 UT 27
IN THE
SUPREME COURT OF THE STATE OF UTAH
ERIK JENSEN,
Appellee,
v.
INTERMOUNTAIN HEALTHCARE, INC.,
IHC HEALTH SERVICES, INC., dba LDS HOSPITAL, and
IHC HEALTH SERVICES, INC., dba INTERMOUNTAIN MEDICAL GROUP,
Appellants.
No. 20160424
Filed June 26, 2018
On Appeal of Interlocutory Order
Third District, Salt Lake
The Honorable Judge Barry G. Lawrence
No. 150900735
Attorneys:
Charles H. Thronson, Nicholas Bernard, Salt Lake City, for appellee
Troy L. Booher, Beth E. Kennedy, Alexandra Mareschal,
Salt Lake City, for appellants 1
JUSTICE PEARCE authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS and JUDGE TOOMEY joined.
Due to her retirement, JUSTICE DURHAM did not participate herein;
COURT OF APPEALS JUDGE KATE A. TOOMEY sat.
_____________________________________________________________
1 Additional counsel listed on the briefing includes Brinton R.
Burbidge, Paul D. Van Komen, Nathan W. Burbidge, G. Wright,
Brandon B. Hobbs, Courtney Kochevar, Sean C. Miller, Salt Lake
City, for appellants.
JENSEN v. IHC
Opinion of the Court
JUSTICE PETERSEN became a member of the Court on
November 17, 2017, after oral argument in this matter
and accordingly did not participate.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶ 1 On interlocutory appeal, we are asked to decide whether a
request for prelitigation review—a step the Utah Healthcare
Malpractice Act (UHMA) mandates a plaintiff take before filing a
medical malpractice suit—tolls one of the limitation periods for filing
that suit. The district court decided that it did. We agree that it does
and affirm.
BACKGROUND
¶ 2 The only facts relevant to this appeal are those that speak to
the chronology. Erik Jensen received surgical treatment for
abdominal pain and cramping on March 26, 2010. On April 1, 2010,
Jensen suffered cardiac arrest. Jensen claims that medical staff failed
to properly resuscitate him and provided negligent post-surgical
care.
¶ 3 On March 21, 2014, Jensen filed a notice of intent to sue and
a request for prelitigation review. Jensen received a certificate of
compliance on December 26, 2014, 2 and filed suit on February 2,
2015.
¶ 4 Intermountain Healthcare, Inc., IHC Health Services, Inc.
dba LDS Hospital, and IHC Health Services, Inc. dba Intermountain
Medical Group (collectively “IHC”) moved for summary judgment
arguing that UHMA’s four-year limitation period for medical
malpractice actions barred Jensen’s suit. The district court concluded
that Jensen’s request for prelitigation proceedings tolled the time to
file during the period he spent waiting for the prelitigation review to
conclude. IHC appeals.
ISSUE AND STANDARD OF REVIEW
¶ 5 The single question before us asks whether the district court
erred when it denied IHC’s summary judgment motion. This
requires us to examine whether filing a request for prelitigation
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2The district court’s order states that the certificate was issued
October 26, 2014. Neither party argues that this is the correct date.
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Opinion of the Court
review tolls the four-year period for filing suit. This presents a
statutory construction question that we review for correctness. See
Bishop v. GenTec Inc., 2002 UT 36, ¶ 8, 48 P.3d 218.
ANALYSIS
¶ 6 To understand better the question this case presents, it is
helpful to appreciate UHMA and the hurdles it requires a
prospective plaintiff to clear before filing an action.
¶ 7 First, UHMA requires a plaintiff to file a “notice of intent to
commence an action.” UTAH CODE § 78B-3-412(1)(a). This notice must
be sent to the prospective defendant and must include “(a) a general
statement of the nature of the claim; (b) the persons involved; (c) the
date, time, and place of the occurrence; (d) the circumstances
surrounding the claim; (e) specific allegations of misconduct on the
part of the prospective defendant; and (f) the nature of the alleged
injuries and other damages sustained.” Id. § 78B-3-412(1)(a), (2), (3).
¶ 8 Second, a plaintiff must present the claim to a prelitigation
panel. Id. § 78B-3-416(2)(a). UHMA requires that the plaintiff file the
request for prelitigation panel review within sixty days of filing the
notice of intent to commence action. Id. The prelitigation panel
proceedings are, in the statute’s words, “informal [and] nonbinding”
but also “compulsory as a condition precedent to commencing
litigation.” Id. § 78B-3-416(1)(c) (emphasis added). The division has
180 days after the request is filed to “complete a prelitigation
hearing,” or longer if all parties agree. Id. § 78B-3-416(3)(b). After it
completes its review, the hearing panel issues an opinion and a
certificate acknowledging that the plaintiff has complied with
UHMA’s prelitigation requirements. Id. § 78B-3-418(1)(a). After
receipt of the certificate, a plaintiff can properly file the lawsuit.
¶ 9 UHMA provides multiple limitations on when a plaintiff
can file suit. Utah Code section 78B-3-404 reads, including the title:
Statute of limitations—Exceptions—Application
(1) A malpractice action against a health care provider
shall be commenced within two years after the plaintiff
or patient discovers, or through the use of reasonable
diligence should have discovered the injury, whichever
first occurs, but not to exceed four years after the date
of the alleged act, omission, neglect, or occurrence. 3
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3 Utah Code section 78B-3-404(2) details the exceptions.
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Opinion of the Court
During the prelitigation review detailed above, UHMA “tolls the
applicable statute of limitations until the later of: (i) 60 days following
the division’s issuance of . . . a certificate of compliance . . . or (ii) the
expiration of the time for holding a hearing . . . .” Id. § 78B-3-416(3)(a)
(emphasis added).
¶ 10 Tolling of the four-year period matters in this case because
Jensen’s four years to file expired while he was waiting for his
certificate from the prelitigation review panel. 4 The district court
concluded that Jensen’s request for prelitigation review tolled
UHMA’s four-year limitation on filing a malpractice action while the
panel reviewed his case. The district court concluded: (1) that IHC’s
argument is not supported by the statutory language; (2) that our
prior decisions, albeit in different contexts, suggested that both
provisions should be tolled; and (3) that IHC’s interpretation would
not square with the policies underlying the statute.
¶ 11 We can take a swifter path through the statute than the
district court did. To decide whether the district court correctly
concluded that Jensen’s suit was timely, we must answer two
questions: (1) is the four-year period a statute of limitations or a
statute of repose; and (2) if it is a statute of repose, did the
Legislature intend that period to be an “applicable statute of
limitations” as UHMA uses that term.
I. The Four-Year Period Is a Statute of Repose
¶ 12 As noted above, the Legislature provided that “[t]he filing
of a request for prelitigation panel review under this section tolls the
applicable statute of limitations until the later of: (i) 60 days following
the division’s issuance of . . . a certificate of compliance . . . or (ii) the
expiration of the time for holding a hearing . . . .” UTAH CODE
§ 78B-3-416(3)(a) (emphasis added).
¶ 13 That raises the question of what the Legislature intended
the reference to the “applicable statute of limitations” to mean. And,
more specifically, does “applicable statute of limitations,” UTAH
CODE § 78B-3-416(3)(a), include the period “not to exceed four years
after the date of the alleged act, omission, neglect, or occurrence,”
UTAH CODE § 78B-3-404(1).
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4 We have already decided that filing a notice of intent to file suit
tolls the four-year period. Forbes v. St. Mark’s Hosp., 754 P.2d 933, 935
(Utah 1988).
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Opinion of the Court
¶ 14 For obvious reasons, the parties disagree about how to
label section 78B-3-404’s limitation periods. If the latter half of that
section describes a statute of limitations, it falls squarely within
section 78B-3-416’s reference to “applicable statute of limitations.” If
the four-year period is a statute of repose, we are presented with a
trickier statutory interpretation question.
¶ 15 We are presented with a trickier statutory interpretation
question. Although the district court pointedly did not decide
whether the latter half of section 78B-3-404(1)’s limitation is better
described as a statute of limitations or a statute of repose, we have
repeatedly said that the limitation functions as a statute of repose.
See Arnold v. Grigsby, 2012 UT 61, ¶ 13, 289 P.3d 449 (“The Utah
Health Care Malpractice Act provides . . . a four-year statute of
repose for the filing of medical malpractice actions.”); Lee v. Gaufin,
867 P.2d 572, 574 (Utah 1993) (referring to the same four-year period
in UHMA as a “statute of repose”); Sorensen v. Larsen, 740 P.2d 1336,
1336 (Utah 1987) (same). Jensen urges us to reconsider what we said
in these cases because, he claims, we have not had any reason “to
consider how a ‘statute of repose’ would operate in conjunction with
other provisions of [UHMA], as compared with a statute of
limitations.” But Jensen does nothing more than invite us to
reconsider those conclusions; that is, he provides us with no
argument that the language in question constitutes a statute of
limitations.
¶ 16 In Berry ex rel. Berry v. Beech Aircraft Corp., we limned the
distinction between statutes of limitations and those of repose:
A statute of limitations requires a lawsuit to be filed
within a specified period of time after a legal right has
been violated or the remedy for the wrong committed
is deemed waived. A statute of repose bars all
actions after a specified period of time has run from the
occurrence of some event other than the occurrence of
an injury that gives rise to a cause of action.
717 P.2d 670, 672 (Utah 1985).
¶ 17 Berry involved a fatal plane crash. Plaintiffs alleged that the
plane suffered from a manufacturing defect. Id. at 671–72. The case
concerned a statutory limitation on the commencement of an action
that barred “all legal actions for death, personal injury, or damage to
property caused by a defective product, if the action is filed more
than six years after the date of first sale for ‘use or consumption,’ or
ten years after the date of manufacture.” Id. at 672–73 (citation
omitted). We concluded that this operated as a statute of repose that
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Opinion of the Court
began to run from “the date of first sale, or the date of manufacture,
of a product alleged to be defective.” Id. at 672.
¶ 18 UHMA operates in a similar way. Take, for example, a
medical malpractice action based on a surgical error that does not
manifest itself until years later. This resembles the manufacturing
defect at issue in Berry. In both examples, the action that will
eventually result in injury has occurred; it has just yet to be
discovered. The defect was there from the date of
surgery/manufacture, but will not come to light until later. Thus,
without the benefit of any meaningful argument to the contrary, we
continue to believe that the four-year period in UHMA functions as a
statute of repose and this case hinges on whether the Legislature
intended section 78B-3-404(1)’s four-year limitation period to be one
of the “applicable statutes of limitations” that section 78B-3-416
references.
II. “Statute of Limitations,” as Used in the Utah Healthcare
Malpractice Act, Is an Ambiguous Term
¶ 19 IHC argues that this is the simplest of cases because the
statute only tolls “the applicable statute of limitations” and the
relevant time period is a statute of repose, not a statute of limitations.
IHC’s argument prevails if we agree that, by using the term
“applicable statute of limitations” in Utah Code section 78B-3-416,
the Legislature intended to draw a distinction between statutes of
limitations and statutes of repose.
¶ 20 We are not convinced that the Legislature uses the term
statute of limitations as precisely as IHC’s argument assumes. “It is
the duty of this court, according to its best knowledge and
understanding, to declare the law as it finds it, and determine the
intent and purpose thereof from the language used by the
Legislature in expressing such purpose and intention.” Cox v.
Laycock, 2015 UT 20, ¶ 42 n.47, 345 P.3d 689 (citation omitted). And
we can observe that the Legislature sometimes uses the term “statute
of limitations” to mean limitation periods generally and does not
always employ it to draw a distinction between statutes of
limitations and statutes of repose.
¶ 21 For example, the Legislature labeled chapter 2 of title 78B of
the Utah Code “Statutes of Limitations.” Yet the Legislature
acknowledged, later in that same chapter, that chapter 2 contains
both statutes of limitations and repose by referring to the “periods of
limitation and repose provided in this chapter . . . .” UTAH CODE
§ 78B-2-225(2)(e). And, indeed, chapter 2 contains both statutes of
limitations and repose. Chapter 2 contains a “statute of repose . . . to
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lay at rest claims against tax titles,” Frederiksen v. LaFleur, 632 P.2d
827, 829 (Utah 1981) (citation omitted) (referencing what is now
UTAH CODE § 78B-2-205(2)), and a “builders statute of repose,”
Craftsman Builder’s Supply, Inc. v. Butler Mfg. Co., 1999 UT 18, ¶ 13,
974 P.2d 1194 (referencing what is now UTAH CODE § 78B-2-225).
Chapter 2 also contains statutes of limitations, including “a six
month statute of limitations . . . to recover [against] . . . ‘a collector of
taxes,’” Stevensen v. Monson, 856 P.2d 355, 357 (Utah 1993) (citing
what is now UTAH CODE § 78B-2-301), a three-year “statute of
limitations for conversion,” Ockey v. Lehmer, 2008 UT 37, ¶ 35, 189
P.3d 51 (citing UTAH CODE § 78B-2-305(2)), and a three-year statute of
limitations for fraud, Hill v. Allred, 2001 UT 16, ¶ 16, 28 P.3d 1271
(citing what is now UTAH CODE § 78B-2-305(3)). Thus, it appears that
the Legislature sometimes uses the term statutes of limitations as a
generic term for limitation periods generally.
¶ 22 It is not just us. The United States Supreme Court has
recognized that the United States Congress has been similarly
imprecise with the labeling of limitation periods, sometimes “us[ing]
the term ‘statute of limitations’ when enacting statutes of repose.”
CTS Corp. v. Waldburger, 134 S. Ct. 2175, 2185 (2014). The Court has
noted that “[w]hile the term ‘statute of limitations’ has acquired a
precise meaning, distinct from ‘statute of repose,’ and while that is
its primary meaning, it must be acknowledged that the term ‘statute
of limitations’ is sometimes used in a less formal way. In that sense,
it can refer to any provision restricting the time in which a plaintiff
must bring suit.” Id.
¶ 23 Academics have also noted that those who make and
interpret the law are not consistent in the use of the term statute of
limitations.
In the most general sense, a statute of repose and a
statute of limitation are identical—“legislative
enactments prescribe the periods within which actions
may be brought.” Older treatise writers and judges
often used “repose” and “limitation” interchangeably.
A second definition suggests that statute of repose is a
general term that encompasses various statutes,
including statutes of limitation. . . . A third approach
indicates that a statute of repose is merely one type of
statute of limitation. . . . The fourth definition holds
that a statute of repose is distinct from a statute of
limitations . . . .
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Opinion of the Court
Francis E. McGovern, The Variety, Policy and Constitutionality of
Product Liability Statutes of Repose, 30 AM. U. L. REV. 579, 582–84
(1981) (footnote omitted).
¶ 24 In response to this line of thinking, IHC points out that the
Legislature used the markedly different phrase “applicable time
period” in UHMA’s provision that tolls the statute for the period
necessary to provide pre-filing notice. See UTAH CODE § 78B-3-412(4)
(“If the notice is served less than 90 days prior to the expiration of
the applicable time period, the time for commencing the malpractice
action against the health care provider shall be extended to 120 days
from the date of service of notice.”). In Forbes v. St. Mark’s Hospital,
we interpreted that phrase to mean both statutes of limitations and
repose. 754 P.2d 933, 934 (Utah 1988). IHC argues that this shows
that the Legislature knew how to use a broader phrase but
deliberately chose a different, more limited one in section 78B-3-404.
¶ 25 IHC also cites a number of places elsewhere in the code
where the Legislature uses the phrase “statute of repose.” We
generally “assume[] that each term in the statute was used
advisedly,” Savage Indus., Inc. v. Utah State Tax Comm’n, 811 P.2d 664,
670 (Utah 1991), and sometimes find that the use of a term elsewhere
shows that the Legislature knows how to use those terms, and
would have used them again if it intended the same effect, see
Gottling v. P.R., Inc., 2002 UT 95, ¶ 11, 61 P.3d 989 (“The legislature
could have used the phrase ‘discriminatory or prohibited
employment practices’ [as it did elsewhere in the statute] and
thereby have limited the [statute’s] preemptive effect to common law
actions for discrimination against large employers. Nevertheless, it
chose to use the undefined, more expansive term. That choice,
combined with the use of the word ‘exclusive’ and the lack of any
other qualifying language, explicitly reveals the legislature’s intent
to preempt all other state law causes of action for employment
discrimination.”).
¶ 26 However, “[i]t is usually quite beside the point that the
legislature ‘knows how’ to speak more explicitly. That is another
way of saying that the legislature could have spoken more clearly.
And typically that gets us nowhere.” Craig v. Provo City, 2016 UT 40,
¶ 38, 389 P.3d 423 (footnote omitted). And evidence that the
Legislature has used “statute of repose” elsewhere shows just that:
that the Legislature “‘knows how’ to speak more explicitly.” See id.
But the code is festooned with compelling evidence that the
Legislature may not speak that clearly when it comes to limitation
periods. See id.; supra ¶¶ 19–21; see also Irving Place Assocs. v. 628 Park
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Opinion of the Court
Ave., LLC, 2015 UT 91, ¶ 16, 362 P.3d 1241 (“[T]he legislature’s failure
to speak more clearly tells us little or nothing about its intent in
using terms that are less clear.”); In re Estate of Hannifin, 2013 UT 46,
¶ 25, 311 P.3d 1016 (“In any matter of statutory construction of any
consequence, it will almost always be true that the legislature could
have more clearly repudiated one party’s preferred construction.”);
In re Adoption of Baby E.Z., 2011 UT 38, ¶ 75, 266 P.3d 702 (Lee, J.,
concurring in part and concurring in the judgment) (“Whenever a
statute is susceptible of two plausible interpretations, it will always
be the case that the legislature could have spoken more clearly if it
had anticipated the precise question before the court. But that fact is
hardly ever material, since one can almost always imagine clarifying
amendments cutting both ways.”).
¶ 27 Therefore, because of the inconsistency in usage of the
phrase “statute of limitations,” we conclude that the phrase
“applicable statute of limitations” is ambiguous. The Legislature
could have used it as a specific reference to those deadlines that are
truly statutes of limitations or as an umbrella term covering “any
provision restricting the time in which a plaintiff must bring suit.”
CTS Corp., 134 S. Ct. at 2185.
III. Filing a Request for Prelitigation
Review Tolls the Statute of Repose
¶ 28 Once we determine the statute is ambiguous, the question
simplifies because the section in which the statute of repose is found
bears the title, “Statute of Limitations.” This strongly suggests that
the Legislature was either using the term statute of limitations to
mean limitation periods generally, or that it believed that the statute
of repose in section 78B-3-404 was actually a statute of limitations
subject to section 78B-3-416 and not the statute of repose we later
found it to be.
¶ 29 We have stated that “[t]he title of a statute is not part of the
text of a statute, and absent ambiguity, it is generally not used to
determine a statute’s intent.” Blaisdell v. Dentrix Dental Sys., Inc., 2012
UT 37, ¶ 10, 284 P.3d 616 (quoting State v. Gallegos, 2007 UT 81, ¶ 16,
171 P.3d 426). We stand by that proposition, but, as explained above,
here there is ambiguity. See supra ¶¶ 19–27. And we have noted that
when we need help understanding an ambiguous provision, titles
are “persuasive and can aid in ascertaining [the statute’s] correct
interpretation and application.” Blaisdell, 2012 UT 37, ¶ 10 (alteration
in original) (quoting Gallegos, 2007 UT 81, ¶ 16).
¶ 30 Once we look to the title of Utah Code section 78B-3-404, it
appears the Legislature intended that the request for prelitigation
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Opinion of the Court
review would toll the four-year period. The statute of repose is
found in a section entitled “Statute of limitations—Exceptions—
Application.” UTAH CODE § 78B-3-404. Reading the title in tandem
with the statute, “the applicable statute of limitations” logically
refers to both periods that Utah Code section 78B-3-404(1) labels
statutes of limitations, and does not exclude the one that we later
interpreted as a statute of repose. See UTAH CODE § 78B-3-416(3)(a).
In other words, because the Legislature placed the four-year period
under the heading “Statute of limitations—Exceptions—
Application[,]” it follows that the Legislature intended it to be one of
the “applicable statute of limitations” that is tolled by the filing of a
prelitigation panel request. UTAH CODE §§ 78B-3-404,
78B-3-416(3)(a). 5
¶ 31 This reading also has the advantage of creating a system
that works harmoniously. Under Jensen’s interpretation, the
potential plaintiff files notice, tolling the statute of repose and statute
of limitations. Then, within sixty days, the plaintiff files a request for
prelitigation review. While that review is pending, the statute of
limitations and statute of repose are tolled until the panel issues a
certificate of compliance. Once the panel is finished with its review,
the plaintiff has sixty days to file suit.
¶ 32 Under the reading that IHC advocates, a plaintiff might
have to file a placeholder suit 6—a suit UHMA forbids until the
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5 IHC points out that statutes of repose cannot be equitably tolled.
This is true. See CTS Corp. v. Waldburger, 134 S. Ct. 2175, 2183 (2014)
(“Statutes of limitations, but not statutes of repose, are subject to
equitable tolling, a doctrine that ‘pauses the running of, or “tolls,” a
statute of limitations when a litigant has pursued his rights
diligently but some extraordinary circumstance prevents him from
bringing a timely action.’” (citation omitted)). But statutes of repose
can be tolled by statute. See Forbes v. St. Mark’s Hosp., 754 P.2d 933,
935 (Utah 1988) (holding that the filing of a notice of intent tolls
UHMA’s statute of repose).
6 IHC argues that “[b]oth [UHMA] and opinions from this court
have recognized that, in some cases, a [plaintiff] may file a
premature lawsuit to avoid the effect of the limitation or repose
period.” In support of this proposition, IHC relies partly on our
decision in McBride-Williams v. Huard, 2004 UT 21, 94 P.3d 175.
There, we decided that the requirement that a plaintiff first proceed
with prelitigation proceedings
(continued . . .)
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prelitigation review process is completed—if the statute of repose
will expire while the panel is reviewing the case. Instead of requiring
such a placeholder suit, tolling both the statute of limitations and
repose harmonizes the notice and request for prelitigation review
such that plaintiffs can proceed in a logical fashion with their
medical malpractice suits.
¶ 33 The statute’s ambiguous language, together with the
relative clarity of its title, causes us to conclude that filing a request
for prelitigation review tolls the “applicable statute of limitations.”
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does not erect a barrier at the courthouse door, barring
entry to medical malpractice claimants who have failed
to comply with compulsory prelitigation procedures.
Claimants are at liberty to commence an action . . .
irrespective of whether they have heeded the
preconditions imposed by the Malpractice Act. We
adopt this position without endorsing the McBrides’
apparent wholesale disregard of the prelitigation
procedures mandated by the Malpractice Act.
Id. ¶¶ 10–11. But just because plaintiffs can file a placeholder suit
does not mean that this is the system the Legislature envisioned, as
we recognized when we refused to “endorse[] the McBrides’
apparent wholesale disregard of the prelitigation procedures . . . .”
Id. ¶ 11.
IHC also points to Utah Code section 78B-3-423(6), which
provides that, “[i]f a claimant or the claimant’s attorney does not file
an affidavit of merit as required by this section, the division may not
issue a certificate of compliance for the claimant and the malpractice
action shall be dismissed by the court.” IHC urges that the reference
to the malpractice action being dismissed by the court means that
“[UHMA] expressly contemplates that a claimant can file a
malpractice action in court before completing the requisite
procedures; otherwise, there would be no malpractice action to
dismiss.” But this, at most, recognizes that some litigants might
disregard UHMA’s requirements and instructs the court what to do
in that instance. It does not inform whether the Legislature
envisioned that a plaintiff would file a placeholder suit, knowing it
would be dismissed as having been improperly filed, in order to toll
the statute of repose while the plaintiff participates in the
prelitigation panel process.
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Opinion of the Court
UTAH CODE § 78B-3-416(3)(a). Therefore, the statute of repose does
not bar Jensen’s claim.
CONCLUSION
¶ 34 We conclude that the phrase “statute of limitations” as
used in Utah Code section 78B-3-416(3)(a) is ambiguous. Looking at
the title of Utah Code section 78B-3-404—which includes the phrase
“[s]tatute of limitations” in reference to the four-year time period—
we resolve that ambiguity by concluding that the four-year time
period is an “applicable statute of limitations” and is therefore tolled
by filing a request for prelitigation review. UTAH CODE §§ 78B-3-404,
78B-3-416(3)(a). Because the statute of repose was tolled during the
period Jensen sought prelitigation panel review, it does not bar his
claim. We affirm.
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