Scott v. Wingate Wilderness Therapy , 2021 UT 28 ( 2021 )

2021 UT 28IN THE
SUPREME COURT OF THE STATE OF UTAH
JACOB M. SCOTT,
Appellant,
v.
WINGATE WILDERNESS THERAPY, LLC,
Appellee.
No. 20190953
Heard November 17, 2020
Filed July 9, 2021
On Certification from the
United States Court of Appeals for the Tenth Circuit
The Honorable Timothy M. Tymkovich
No. 19–4052
United States District Court for the District of Utah
The Honorable David Nuffer
No. 4:18-CV-00002-DN
Attorneys:
John D. Luthy, Brandon J. Baxter, Logan, for appellants
Andrew M. Morse, Nathan A. Crane, Dani N. Cepernich,
Salt Lake City, for appellees
JUSTICE PEARCE authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PETERSEN joined.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 The United States Court of Appeals for the Tenth Circuit has
a question about the reach of the Utah Health Care Malpractice Act
(Malpractice Act or Act), UTAH CODE §§ 78B-3-401 through 426. See
Scott v. Wingate Wilderness Therapy, LLC, 792 F. App’x 590, 591 (10th
Cir. 2019). The Tenth Circuit wants to know if the Act applies to a
claim that Jacob Scott brought seeking relief for injuries he sustained
as a minor while rock climbing during a “wilderness therapy” hiking
SCOTT v. WINGATE WILDERNESS THERAPY
Opinion of the Court
excursion. See id. The Tenth Circuit certified the question to this
court, and we agreed to answer.
¶2 We conclude that an injury sustained while climbing a rock
formation during a “wilderness therapy” excursion can, depending
on the circumstances, “relat[e] to or aris[e] out of health care
rendered . . . by [a] health care provider.” See UTAH CODE § 78B-3-
403(17). And we conclude that the injury at the heart of the claims
here related to or arose out of treatment a health care provider
rendered. As such, the Act applies to the claims the plaintiff asserts.
BACKGROUND
¶3 We state the facts and procedural history as the United
States District Court and Tenth Circuit described them. See Scott v.
Wingate Wilderness Therapy, LLC (Scott II), 792 F. App’x 590 (10th Cir.
2019); Scott v. Wingate Wilderness Therapy, LLC (Scott I), No. 4:18-CV-
0002-DN, 2019 WL 1206901 (D. Utah Mar. 14, 2019).
¶4 The plaintiff-appellant in the underlying federal case, Jacob
M. Scott (Jacob), was injured while rock climbing under the
supervision of the defendant-appellee, Wingate Wilderness Therapy,
LLC (Wingate).1 Scott II, 792 F. App’x at 591. At the time, Jacob was a
participant in Wingate’s “wilderness therapy” program. Id.Wingate’s Program
¶5 Wingate provides “wilderness therapy” to adolescents. Id.Wingate operates as an “outdoor youth program” licensed by the
Utah Department of Human Services to provide “behavioral,
substance abuse, [and] mental health services” to minors. See Scott I,
2019 WL 1206901, at *1–3 (alteration in original) (citing UTAH CODE
§ 62A-2-101);2 see also UTAH ADMIN. CODE r. 501-8.3
1 We note that Wingate, in its briefing to us, refers to itself as
“WinGate.” Both the Tenth Circuit and the district court used the
spelling, “Wingate.” We adopt the courts’ spelling here for
consistency. See Scott II, 792 F. App’x 590; Scott I, 2019 WL 1206901.
2 The statute in effect during the relevant time, March 2015,
permitted such “youth program[s]” to “provide behavioral,
substance abuse, or mental health services to minors” who are
“adjudicated or nonadjudicated.” UTAH CODE § 62A-2-101(32) (2014).
These services could be “in the outdoors” and the programs could
“limit or censor access to parents or guardians” and “prohibit[] or
restrict[] a minor’s ability to leave the program at any time.” Id. The
(continued . . .)
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¶6 Persons enrolled in Wingate’s program “live in the
wilderness during their time at Wingate” and participate in “hiking
and camping, as well as individual and group therapy.” Scott II, 792
F. App’x at 591.4 State regulations require Wingate, as an “outdoor
youth program,” to employ “clinical and therapeutic personnel,” and
require those personnel to be licensed or working under a state-
certified training program. See UTAH ADMIN. CODE r. 501-8-6(8).
Wingate employs “various professionals, including licensed
therapists and psychologists,” who conduct therapy sessions and
create “treatment plan[s]” for participants. Scott II, 792 F. App’x at
591–92.
¶7 Wingate also employs field staff who lead hiking and
wilderness activities. See id. at 592. Wingate’s briefing asserts that its
field staff “implement the treatment plans prepared for the patient-
residents by licensed health care providers.” Both parties agree that
Wingate‘s “field staff are not licensed therapists or medical doctors.”
Both parties also agree that the field staff are nevertheless subject to
Utah Department of Human Services regulations, which require that
all field staff, at a minimum, be: “annually trained and certified in
CPR and currently certified in standard first aid,” UTAH ADMIN.
legislature amended the statute in 2021 to define “outdoor youth
program[s]” as providing “regular therapy, including group,
individual, or supportive family therapy” in “a 24-hour outdoor
group living environment” to minors who have “a chemical
dependency” or a “dysfunction or impairment that is emotional,
psychological, developmental, physical, or behavioral.” UTAH CODE
§ 62A-2-101(33) (2021). We analyze and cite to the statute in effect in
March 2015.
3 The regulations define “Outdoor Youth Program,” as “a 24-hour
intermediate outdoor group living environment with regular formal
therapy including group, individual, and the inclusion of supportive
family therapy.” UTAH ADMIN. CODE r. 501-8-3(1)(d).
4 Jacob describes Wingate’s program as bifurcated into a
“wilderness experience” and “traditional counseling,” with the two
components being operated by different staff—“field staff” and a
“clinical team.” Wingate, on the other hand, asserts that its
“wilderness therapy therapeutic process” encompasses not only
“traditional” counseling with psychologists and licensed counselors,
but also the “immersive experience in the wilderness,” including
hiking.
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SCOTT v. WINGATE WILDERNESS THERAPY
Opinion of the Court
CODE r. 501-8-6(3)(h), (4)(c), (5)(d), (6)(e); experienced in “recreational
therapy,” id. 501-8-6(2)(d), (3)(d); and trained and demonstrate
“proficiency” in “counseling, teaching and supervisory skills,”
“conflict resolution[] and behavior management,” as well as “safety
procedures and safe equipment use,” “wilderness medicine,” “CPR,”
and “standard first aid.” Id. 501-8-8(2).
Jacob’s Treatment Plan
¶8 When Jacob was seventeen, his parents enrolled him in
Wingate’s wilderness therapy program. Scott II, 792 F. App’x at 592.
Toward the beginning of his stay, Jacob met with a licensed marriage
and family therapist Wingate employed (Therapist or Wingate’s
Therapist). Id. The Therapist created a written “treatment plan” for
Jacob:
Jacob [will] participate in weekly individual and group
therapy as well as daily psychoeducational and process
groups. He will be immersed in wilderness principles
and experiences, and will have the opportunity to learn
& apply ‘Leave No Trace’ principles throughout his
outdoor experience at WinGate. He will have the
opportunity to learn outdoor survival skills as well as a
variety of methods for making and utilizing primitive
tools, instruments, and shelters. Jacob will be
introduced to new philosophies and strategies to assist
him in creating a more effective path for himself and
for his family relationships.
Id. Later, in a sworn statement, the Therapist “described the
treatment plan as providing for, ‘among other things, weekly
individual and group therapy sessions, daily psychoeducational and
process groups, hiking (exercise), and recommended a stay in the
therapeutic program for eight weeks.’” Id. (citation omitted). Neither
the written treatment plan nor the Therapist’s deposition testimony
mention climbing as a component of Jacob’s therapy.
The Climbing Accident and Injury
¶9 Two weeks into Wingate’s program, Jacob and six other
youths went hiking, accompanied by two Wingate staff members. Id.
During the hike, the lead staff member temporarily left the group.5
State regulations require Wingate to have “at least two staff
5
members” supervising each “youth group” “at all times,” UTAH
(continued . . .)
4
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Id. The remaining staff member let the youth, at their request, climb a
“seventy-foot-tall, snow-dusted rock formation.” Id. at 591. The staff
member provided no climbing gear, training, or physical assistance.
Id. at 591–92. Jacob and three others reached the top, “but Jacob and
at least one other boy found it much more difficult to climb back
down.” Id. at 592. While Jacob was struggling to descend the rock
formation, the lead staff member rejoined the group. Id. “Neither
staff member offered Jacob any physical assistance, but one of them
advised Jacob to follow a certain route down. As Jacob tried to do so,
he slipped on the snow and fell approximately twenty-five feet to the
ground, landing on his left knee.” Id. Jacob’s knee shattered. Id.
at 591.
The Negligence Claim
¶10 Three years after the accident and more than two years after
Jacob’s eighteenth birthday, Jacob filed a lawsuit against Wingate in
federal district court. Id. at 592–93. Jacob alleged that Wingate
breached its duty of care to him by:
(i) allowing the youth to take a detour from the
designated route; (ii) allowing the lead staff member to
leave the group with only one staff member remaining
with the group; (iii) not doing anything to determine
whether the climbing of the rock formation would be
safe for the youth; (iv) not properly assessing the
danger of allowing the youth to climb the rock
formation; (v) allowing the youth to climb the
dangerous rock formation without supervision;
(vi) allow[ing] the youth to climb the dangerous rock
formation without any safety gear; (vii) not assisting
Jacob with his descent down the rock formation[;] and
(viii) instructing [Jacob] to climb down the rock
formation when and where it was dangerous to do so.
Id. at 593 (alterations in original) (quoting Scott I, 2019 WL 1206901,
at *2).
District Court Dismissal
¶11 The federal district court granted Wingate’s motion to
dismiss. Scott I, 2019 WL 1206901, at *5. The court concluded that the
Malpractice Act applied to Jacob’s claims and that Jacob had failed to
ADMIN. CODE r. 501-8-7(1), and meet certain specifications for the
provision of clothing and protective equipment. Id. 501-8-5(5)–(6).
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SCOTT v. WINGATE WILDERNESS THERAPY
Opinion of the Court
file his action within the two-year statute of limitations. Id. Nor had
Jacob complied with the Act’s procedural hurdles. Id. The court
arrived at this conclusion after finding that, under the Act, Wingate
is a “health care provider” and Jacob’s alleged injury “relates to or
arose out of health care” Wingate rendered or should have rendered.
Id.
¶12 The district court found that Wingate is a “health care
provider” under the Act because Wingate employs “several licensed
medical and mental health professionals, including clinical social
workers, certified social workers, mental health counselors and a
psychologist,” as well as a “licensed marriage and family therapist”
who, the court assumed, “provide[] services that [are] similar to
those provided by” health care providers expressly listed in the Act.
Id. at *3 (citing UTAH CODE § 78B-3-403(12)); see also id. at *5. The
court also reasoned that Wingate provides “behavioral or mental
health services” and, therefore, its services must “relat[e] to or aris[e]
out of the health needs of persons or groups of persons.” Id. at *3
(alterations in original) (citing UTAH CODE § 78B-3-403(12)).
¶13 The district court further found Jacob’s alleged injury
“relates to or arises out of health care” because Jacob’s complaint
alleges that, at the time of the injury, Wingate was “attempting to
provide behavioral or mental health services” to him. Id. at *3
(citation omitted). The court therefore implicitly determined that
Jacob’s lawsuit constituted a “malpractice action against a health care
provider”—an action which is subject to the Act’s procedural
requirements. See id. at *3–5; see also UTAH CODE § 78B-3-403(17).
The Tenth Circuit’s Certified Question to the Utah Supreme Court
¶14 Jacob appealed to the Tenth Circuit, “arguing the district
court erred in finding his injuries arose out of health care provided
by Wingate.” Scott II, 792 F. App’x at 591. The Tenth Circuit
determined that “the disposition of this appeal turns on an important
and unsettled question of Utah law.” Id. That court noted that
“[w]hether and to what extent an injury sustained in the course of
‘wilderness therapy’ ‘relat[es] to or aris[es] out of health care
rendered,’ within the meaning of the [Act] has yet to be addressed by
a Utah state court.” Id. at 595 (first two alterations in original) (citing
UTAH CODE § 78B-3-403(17)).6
6 We agree with the Tenth Circuit’s observation. Although we
have examined whether various claims constituted “malpractice
action[s] against a health care provider” under the Act, see Dowling v.
(continued . . .)
6
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¶15 The Tenth Circuit certified the following question to us:
Where Wingate is a “health care provider” under Utah
Code § 78B-3-403(12), does an injury sustained by a
plaintiff while climbing a rock formation during a
“wilderness therapy” program operated by Wingate
“relat[e] to or aris[e] out of health care rendered or
which should have been rendered by [a] health care
provider” within the meaning of the [Malpractice Act]?
Scott II, 792 F. App’x at 595 (first three alterations in original).
¶16 In its certification order, the Tenth Circuit clarified the
parties’ stipulations and the scope of the court’s question:
The parties do not dispute that Jacob failed to satisfy
the [Act]’s procedural requirements prior to filing suit.
Nor do they dispute that Wingate is a health care
provider. The only issue remaining for appeal is
whether Jacob’s injuries “ar[ose] out of health care
rendered or which should have been rendered” by
Wingate.
Id. at 594 (second alteration in original) (citations omitted).
¶17 The Tenth Circuit further clarified that, although Jacob
conceded Wingate is a “health care provider” and provides “health
care” when conducting traditional “counseling services,” Jacob
argued that “wilderness therapy” was “not intended by the Utah
Legislature to be treated as health care.” Id. at 594–95. Jacob
alternatively argued that “even if wilderness therapy were included”
under the Act’s definition of “health care,” “unassisted rock climbing
is not wilderness therapy,” nor is it “health care,” nor is it more than
“tangentially related to [Wingate’s] provision of health care
services.” Id. (alteration in original). Wingate, on the other hand,
argued that “Jacob was receiving health care in the form of
‘wilderness therapy’ when he was injured and therefore his claim
plainly falls within the Act’s reach.” Id. at 594.
Bullen, 2004 UT 50, 94 P.3d 915; Smith v. Four Corners Mental Health
Ctr., Inc., 2003 UT 23, 70 P.3d 904; Platts v. Parents Helping Parents, 947
P.2d 658, 663 (Utah 1997), we have not yet ruled on the question the
Tenth Circuit sent our way.
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SCOTT v. WINGATE WILDERNESS THERAPY
Opinion of the Court
STANDARD OF REVIEW
¶18 When answering a question a federal court certifies to us,
“‘[t]raditional standards of review do not apply’ because we are not
asked ‘to affirm or reverse a lower court’s decision.’” Fundamentalist
Church of Jesus Christ of Latter-Day Saints v. Horne, 2012 UT 66, ¶ 7, 289
P.3d 502 (quoting U.S. Fid. & Guar. Co. v. U.S. Sports Specialty Ass’n,
2012 UT 3, ¶ 9, 270 P.3d 464).7 Ultimately, “resolution of the parties’
competing claims and arguments will be up to the federal courts,
which of course retain jurisdiction to decide [the] case.” Id. ¶ 10. Our
role in such a matter “is to resolve disputed questions of state law in
a context and manner useful to the resolution of [the] pending
federal case.” Id. ¶ 8. This may require us to “reformulate” the
question or provide a “more expansive answer than a literal reading
of the certified question.” Id. ¶ 9 n.2 (citations omitted). Or it may
entail “merely answer[ing] the question presented.” Garfield Cnty. v.
United States, 2017 UT 41, ¶ 6, 424 P.3d 46.
ANALYSIS
¶19 The Tenth Circuit asks us to interpret certain provisions of
the Utah Health Care Malpractice Act, UTAH CODE §§ 78B-3-401
through 426. Scott v. Wingate Wilderness Therapy, LLC (Scott II), 792 F.
App’x 590 (10th Cir. 2019). In its simplest form, the Tenth Circuit’s
question asks whether Jacob’s lawsuit against Wingate is a
“malpractice action against a health care provider,” such that the suit
is subject to the Act’s procedural requirements and statute of
limitations. See id. at 594–95.
¶20 Specifically, the Tenth Circuit’s question asks us to presume
that Wingate is a “health care provider,” and asks us to answer
whether “an injury sustained . . . while climbing a rock formation
during a ‘wilderness therapy’ program operated by Wingate
‘relat[es] to or aris[es] out of health care rendered or which should
have been rendered by [a] health care provider’ within the meaning
of the [Act].” Id. at 595 (third alteration in original) (citation omitted).
¶21 This is a question of statutory interpretation, and so we
march down the well-trod path we take when we hope to
understand the meaning of statutory language. We look first to the
Act’s plain language. See, e.g., Olsen v. Eagle Mountain City, 2011 UT
10, ¶ 9, 248 P.3d 465; Dowling v. Bullen, 2004 UT 50, ¶ 8, 94 P.3d. 915.
7 Article VIII, section 3 of the Utah Constitution vests us with
jurisdiction to hear cases certified by the federal courts.
8
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“In [some] cases, the statutory text may not be ‘plain’ when read in
isolation, but may become so in light of its linguistic, structural, and
statutory context.” Olsen, 2011 UT 10, ¶ 9 (citing Kimball Condos.
Owners Ass’n v. Cnty. Bd. of Equalization, 943 P.2d 642, 648 (Utah
1997)). “[S]ubsections of a statute should not be construed in a
vacuum but must be read as part of the statute as a whole.” Dowling,
2004 UT 50, ¶ 8 (citation omitted). Likewise, “we do not interpret the
‘plain meaning’ of a statutory term in isolation. Our task, instead, is
to determine the meaning of the text given the relevant context of the
statute (including, particularly, the structure and language of the
statutory scheme).” Olsen, 2011 UT 10, ¶ 12.
I. THE UTAH HEALTH CARE MALPRACTICE ACT
¶22 The Utah Health Care Malpractice Act requires plaintiffs to
overcome a set of hurdles before filing a “malpractice action against a
health care provider.” See UTAH CODE §§ 78B-3-401 through 426. In
pertinent part, plaintiffs must meet three requirements: First,
plaintiffs must give the prospective defendant ninety days’ notice of
intent to commence the action. Id. § 78B-3-412. Second, plaintiffs
must present their case to a prelitigation panel, id. § 78B-3-416(2)(a),8
who determines whether the claims have “merit” or “no merit.” Id.
§ 78B-3-418(2).9 Third, plaintiffs must file their complaint within the
Act’s two-year statute of limitations, unless one of the exceptions
applies. Id. § 78B-3-404.10
8 The Division of Occupational and Professional Licensing
provides a panel that must ordinarily consist of a lawyer, a “lay
panelist,” and one or more “licensed health care providers listed
under [the definitions section of the Act], who are practicing and
knowledgeable in the same specialty as the proposed defendant.”
UTAH CODE § 78B-3-416(1)(a), (4).
9 In 2010, the legislature added a requirement that the plaintiff,
prior to filing a complaint, receive a “certificate of compliance” from
the Division of Occupational and Professional Licensing. Vega v.
Jordan Valley Med. Ctr., LP, 2019 UT 35, ¶ 3, 449 P.3d 31. In 2019, this
court concluded that the 2010 amendments violated Utah
Constitution Article VIII, section I. Id. ¶¶ 22–24. We left intact the
remaining portions of the Act, including the notice and prelitigation
panel requirements. Id. ¶ 24.
10 The notice requirement and statute of limitations have been
requirements since the Act was first adopted in 1976. See Utah Health
Care Malpractice Act, ch. 23, H.B. 35, §§ 4, 8, 1976 Utah Laws 90, 93–
(continued . . .)
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Opinion of the Court
¶23 The Malpractice Act applies to any “malpractice action
against a health care provider.” The Act defines a malpractice action
as
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.
Id. § 78B-3-403(17) (emphases added). In other words, the Act applies
when a plaintiff files suit against a “health care provider,” and the
alleged injuries “relat[e] to or aris[e] out of health care rendered . . .
by the health care provider.” Id.
¶24 In turn, the Act defines “health care” as
any act or treatment performed or furnished, or which
should have been performed or furnished, by any
health care provider for, to, or on behalf of a patient
during the patient’s medical care, treatment, or
confinement.
Id. § 78B-3-403(10).11 Breaking that down, “health care” is: an “act or
treatment” that was or should have been “performed or furnished”:
(1) “for, to, or on behalf of a patient”; (2) “during the patient’s
medical care, treatment, or confinement”; and (3) by a “health care
provider.” Id.
¶25 The Act further defines “health care provider” as
any person, partnership, association, corporation, or
other facility or institution who causes to be rendered
or who renders health care or professional services as a
hospital, health care facility, physician, physician
assistant, registered nurse, licensed practical nurse,
nurse-midwife, licensed direct-entry midwife, dentist,
94, 96–97. The prelitigation panel requirement was not a part of the
1976 Act but has been in place since 1985. See Prelitigation Panel
Requirement for Medical Malpractice Claims, ch. 238, S.B. 153, 1985
Utah Laws 652.
11 The Act defines “[m]alpractice action against a health care
provider” and “[h]ealth care” the same now as in the original 1976
Act. Cf. Utah Health Care Malpractice Act, § 3, 1976 Utah Laws at 91–
93.
10
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dental hygienist, optometrist, clinical laboratory
technologist, pharmacist, physical therapist, physical
therapist assistant, podiatric physician, psychologist,
chiropractic physician, naturopathic physician,
osteopathic physician, osteopathic physician and
surgeon, audiologist, speech-language pathologist,
clinical social worker, certified social worker, social
service worker, marriage and family counselor,12
practitioner of obstetrics, licensed athletic trainer, or
others rendering similar care and services relating to or
arising out of the health needs of persons or groups of
persons and officers, employees, or agents of any of the
above acting in the course and scope of their
employment.
Id. § 78B-3-403(12).13 Stated differently, a “health care provider” is
any of the individuals or entities specifically listed, as well as the
unspecified “others rendering similar care and services relating to or
arising out of the health needs of persons.” Id. This further includes
any “partnership, association, corporation, or other facility or
institution” thereof, as well as their “officers, employees, or
agents . . . acting in the course and scope of their employment.” Id.
¶26 Puzzling these pieces together, to constitute a “malpractice
action against a health care provider,” a claimant’s alleged injuries
must:
12 The Act defines “marriage and family therapist” as “a person
licensed to practice as a marriage therapist or family therapist under
Sections 58-60-305 and 58-60-405.” UTAH CODE § 78B-3-403(18).
Although subsection 18 uses the term “marriage and family
therapist,” while subsection 12 uses “marriage and family counselor,”
it is clear the Act uses those terms interchangeably. See id. § 78B-3-
403(12), (18) (emphases added).
13 The 1976 Act’s definition of “health care provider” was largely
the same as it is today, except that “health care facility” was not in
the 1976 definition, nor were “licensed direct-entry midwife,”
“clinical social worker,” “licensed athletic trainer,” and “physical
therapist assistant.” See § 3, 1976 Utah Laws at 91–92. “Social service
aide” was in the 1976 Act but has since been deleted. Id.
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Opinion of the Court
(1) “relat[e] to or aris[e] out of”
(2) “health care,” i.e., “any act or treatment performed
or furnished, or which should have been performed or
furnished”:
(a) “for, to, or on behalf of a patient”;
(b) “during the patient’s medical care, treatment, or
confinement”; and
(c) by a listed “health care provider” or others
“rendering similar care and services,” or their
“officers, employees, or agents . . . acting in the
course and scope of their employment.”
See id. § 78B-3-403(10), (12), (17).
¶27 The Tenth Circuit’s certified question asks us to assume
Wingate is a “health care provider.” Scott II, 792 F. App’x at 591.
Therefore, the fate of Jacob’s claim hinges on the meaning of the
terms “health care” and “relating to or arising out of.”
A. Broadly Stated, “Health Care” Consists of Acts a “Health Care
Provider” Furnishes to a Patient During the Patient’s Treatment
¶28 Jacob argues, and Wingate agrees, that not every act a
“health care provider” performs is “health care” within the
Malpractice Act’s meaning. We agree.
¶29 The statute cabins what can be considered health care in the
definition. “Health care” constitutes “any act or treatment performed
or furnished . . . by any health care provider for, to, or on behalf of a
patient during the patient’s medical care, treatment, or confinement.”
UTAH CODE § 78B-3-403(10). Thus, actions a health care provider
takes are not “health care” if they are not “for, to, or on behalf of a
patient” or if they do not occur “during the patient’s medical care,
treatment, or confinement.” Id.
¶30 Likewise, the definition of “malpractice action against a
health care provider” indicates that the Malpractice Act does not
apply to every act a health care provider might perform. That
definition requires not only that the defendant be a “health care
provider,” but also that the alleged injuries “relat[e] to or aris[e] out
of health care rendered . . . by the health care provider.” Id. § 78B-3-
403(17). As Jacob rightly notes, this presupposes that health care
providers will engage in some activities that qualify as “health care”
and some activities that do not.
¶31 This reading comports with our prior interpretation of the
Malpractice Act. For example, in Smith v. Four Corners Mental Health
Center, Inc., the defendant allegedly provided both “mental health
12
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services,” which the parties agreed constituted “health care,” and
foster care supervision services, which the court impliedly assumed
did not qualify as “health care.” See 2003 UT 23, ¶¶ 29–31, 70 P.3d
904. Although it was undisputed that the defendant provided at least
some health care, our analysis did not stop there. Rather, to
determine whether the Act applied, we examined whether the
injuries and breaches of duties the plaintiff alleged “mostly” “related
to or arose out of” the defendant’s provision of mental health
services or its non-health care foster services. See id. ¶¶ 31, 35–36.
¶32 A year after Four Corners, we examined the Malpractice Act
in Dowling v. Bullen and expressly rejected the notion that the Act
applies to “any” and “every” act a health care provider performs.
2004 UT 50, ¶ 11, 94 P.3d 915. In Dowling, we emphasized that
“health care” is expressly limited to “only those services rendered by
a health care provider ‘for, to, or on behalf of a patient during the
patient’s medical care, treatment, or confinement.’” Id. ¶ 10(emphasis omitted) (quoting the Act’s definition of “health care”).
We also hypothesized that theft of a patient’s wallet by a physician,
while the patient was in the physician’s office for an examination,
would not constitute “health care,” nor would the patient’s tort claim
for conversion “relat[e] to or aris[e] out of” health care under the Act.
See id. ¶ 11. Simply stated, the Act does not apply to every action a
health care provider may take.
¶33 Although Jacob and Wingate agree that not every act of a
“health care provider” is “health care,” they diverge on where to
draw the line. Wingate posits that any act qualifies as “health care”
so long as it “has something more than a tangential relationship to”
or is done “in furtherance” of the patient’s medical care, treatment, or
confinement. (Emphasis added.)
¶34 Jacob, on the other hand, asserts that an act or treatment is
not “health care” unless it “require[s] the exercise of medical
judgment or expertise,” or is performed by persons with “medical
licenses,” or is a type of act or treatment performed by other health
care providers listed in the Malpractice Act. In other words, Wingate
offers a broad interpretation of what acts can be considered “health
care,” while Jacob advocates for a narrower interpretation of “health
care,” largely limited by who performs the acts.
¶35 Both Wingate’s and Jacob’s suggested interpretations suffer
from the same defect: they break faith with the statute’s text. The
legislature defined “health care” as
any act or treatment performed or furnished, or which
should have been performed or furnished, by any
13
SCOTT v. WINGATE WILDERNESS THERAPY
Opinion of the Court
health care provider for, to, or on behalf of a patient
during the patient’s medical care, treatment, or
confinement.
UTAH CODE § 78B-3-403(10). Thus, by its plain language, “health
care” includes those acts or treatments which were or should have
been “performed or furnished”: (1) by a “health care provider”;
(2) “for, to, or on behalf of a patient”; and (3) “during the patient’s
medical care, treatment, or confinement.” Id. § 78B-3-403(10)
(emphases added).
¶36 Wingate’s suggestion that “health care” applies to any act
“in furtherance of” the patient’s care ignores the statute’s
requirements that an act or treatment be done “during” the patient’s
care and be “for, to, or on behalf of” a patient. Determining whether
an act was done “for, to, or on behalf of a patient during the patient’s
medical care [or] treatment” requires examining the scope of the care
or treatment that the health care provider prescribed, ordered, or
designed for the patient. It also requires examining whether the act
from which the injury arose occurred during that treatment or care—
that is, whether that act occurred “in the course of” the treatment. See
During, MERRIAM-WEBSTER, https://www.merriam-
webster.com/dictionary/during (last updated June 20, 2021).
Wingate’s invitation to interpret “health care” as applying to any act
“in furtherance of” the patient’s care would take away the limitations
that “during” injects into the statute. And it would rewrite the
Malpractice Act in a way that broadens the text’s reach. We therefore
decline to adopt Wingate’s interpretation.
¶37 Accepting Jacob’s arguments would likewise require us to
add language to the Act. Jacob’s position that “health care” includes
only those acts that “require the exercise of medical judgment or
expertise” or are performed by persons with a “medical license”
ignores and narrows the Malpractice Act’s plain language defining
“health care” and “health care provider.”
¶38 Under the Malpractice Act, “health care provider” includes
“any person, partnership, association, corporation, or other facility or
institution who . . . renders health care or professional services as”
any of the expressly listed providers. UTAH CODE § 78B-3-403(12). It
also captures “others rendering similar care and services,” as well as
their “officers, employees, or agents . . . acting in the course and
scope of their employment.” Id. In other words, if a person is an
employee or agent of a listed health care provider, or of an unlisted
provider “rendering similar care and services,” or of a provider’s
association or corporation, then that employee or agent falls under
14
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the Act’s definition of “health care provider” while she is “acting in
the course and scope of [her] employment” and rendering “health
care,” i.e., performing an act “for, to, or on behalf of a patient during
the patient’s medical care, treatment, or confinement.” See id. § 78B-3-
403(10), (12). The Act’s plain language does not require that the
agent/employee health care provider have specific medical expertise
nor does it require a medical license. And, in fact, it contemplates
that some may not.14
¶39 Further, although the Malpractice Act uses the word
“medical” when defining “health care” as an act or treatment
“during the patient’s medical care, treatment, or confinement,” id.
§ 78B-3-403(10) (emphasis added), the Act repeatedly uses the terms
“medical” and “health” interchangeably.15 When read in the context
of the Act as a whole—including the flexible definition of “health
care provider” that encompasses many actors who are not
specifically “medical” providers, as well as those rendering “similar
14 While the Act requires one type of listed “health care provider”
to have a medical license—physicians—the Act also includes a long
list of individuals who qualify as “health care providers” without
having medical licenses, though they may need other types of
licenses. See UTAH CODE § 78B-3-403. And, again, “health care
provider” also includes employees or agents of listed and “other”
health care providers who are acting in the scope of employment,
and the Act does not expressly require those employees or agents to
have specific licenses. See id. § 78B-3-403(12).
15 For example, the Act’s purpose section is concerned with the
cost of “health care,” “medical malpractice insurance,” “health-
related malpractice insurance,” and “professional liability
insurance.” UTAH CODE § 78B-3-402. These terms have been included
since the Act was adopted in 1976. See § 2, 1976 Utah Laws at 91.
Similarly, the Act’s statute of limitations and notice requirements
apply to any “malpractice action against a health care provider,” see
UTAH CODE § 78B-3-404; id. § 78B-3-412, while the prelitigation
“medical review panel” hearing requirements apply to “medical
liability cases against health care providers.” Id. § 78B-3-416. The
1985 amendment adding the prelitigation panel requirements used
the term “medical malpractice” case or action, even though it
referred to the section of the Act in which “[m]alpractice action
against a health care provider” is used. See § 1, 1985 Utah Laws at
653.
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Opinion of the Court
care and services relating to or arising out of the health needs of
persons,” id. § 78B-3-403(12) (emphasis added)—it is evident that the
legislature intended a broader meaning. See generally Barneck v. Utah
Dep’t of Transp., 2015 UT 50, ¶¶ 41–44, 353 P.3d 140 (holding that two
different phrases could mean the same thing where they were “not
obviously ‘materially different’” from one another and where the
context in which the different phrases were used in the statute
indicated they mean the same thing).
¶40 In short, the statute’s plain language does not require the
“exercise of medical judgment or expertise.”16 This does not mean
that “health care” under Utah’s Malpractice Act never requires
professional expertise or judgment. It only means the Act requires
what the statutory language says when read in context. And neither
“health care” nor “health care provider” invariably require
specialized medical expertise or a “medical license” in the narrow
sense Jacob contends.
¶41 Jacob also attempts to whittle down the definition of “health
care” by arguing that an act or treatment cannot constitute “health
care” under the Malpractice Act unless it is “of a type performed or
furnished by the health care providers listed in the Act.” Jacob
supports this theory by selectively weaving certain clauses from the
definitions of “health care” and “health care provider” together with
the Malpractice Act’s prelitigation medical review panel
requirements. Specifically, Jacob highlights that the Act requires
“health care” to be performed by a “health care provider,” UTAH
CODE § 78B-3-403(10), and “health care provider” includes a list of
specific types of providers, plus “others rendering similar care and
services relating to or arising out of the health needs of persons.” Id.
§ 78B-3-403(12). Jacob then highlights that the Act requires potential
claimants to undergo a prelitigation review by a panel whose
members include a “health care provider[] . . . practicing and
knowledgeable in the same specialty as the proposed defendant.” Id.
16 Jacob supports his interpretation with other states’ cases. But
they are not helpful because of the differences between Utah’s statute
and the statutes of other states. For example, Indiana’s definition of
“malpractice” uses the phrase “based on” health care rather than the
more expansive phrase “relating to or arising out of health care,”
which Utah’s Malpractice Act uses. Compare B.R. ex rel. Todd v. State,
1 N.E.3d 708, 713 (Ind. Ct. App. 2013), with UTAH CODE § 78B-3-
403(17).
16
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§ 78B-3-416(4)(b)(i). Threading these provisions together, Jacob
concludes that an act or treatment—even if ordered or performed by
a “health care provider” the Act lists, such as a marriage and family
counselor—cannot constitute “health care” if it differs from acts or
treatments performed by other health care providers. We disagree
with Jacob’s conclusion for a few reasons.
¶42 First, in the definition of “health care provider,” the phrase
“rendering similar care and services” modifies only the unspecified
“other[]” providers, not the listed providers. Id. § 78B-3-403(12).
Therefore, a listed “health care provider,” such as a “marriage and
family counselor,” need not perform care and services similar to
other health care providers in order for that person to be considered
a “health care provider” or for their services to constitute “health
care” under the Act. So long as an expressly listed “health care
provider” performs an act or treatment “for, to, or on behalf of a
patient during the patient’s medical care, treatment, or confinement,”
then that act or treatment is “health care” under the Malpractice Act.
Id. § 78B-3-403(10).
¶43 Second, even if the actor is not a listed health care provider
but instead falls into the unspecified “others” category, that person
must only render care “similar” to, not the same as, listed providers,
to be considered a “health care provider” and for their actions to be
considered “health care.” See id. § 78B-3-403(12), (10). We laid out this
interpretation in Platts v. Parents Helping Parents, where we held that
“the statute . . . means what it says. All those identified in the statute
are ‘health care providers.’ All others rendering care and services
similar to those so explicitly identified are also ‘health care
providers.’” 947 P.2d 658, 663 (Utah 1997).
¶44 Third, while the Malpractice Act requires prelitigation
review by a panel that includes a member in the “same specialty” as
the defendant, it does not require a panelist to be in same sub-
specialty. See UTAH CODE § 78B-3-416(4)(b)(i). The statute’s definition
of “health care provider” includes a long list of generalized
specialties (e.g., “registered nurse,” “physician”), as well as some
sub-specialties (e.g., “practitioner of obstetrics”). See id. § 78B-3-
403(12). The fact that a health care provider practices within an
unlisted sub-specialty of a listed general specialty does not mean that
person is not a “health care provider” or does not provide “health
care.” For example, a physician practicing dermatology is
unquestionably a “physician” and thus a “health care provider”
under the Act, even though the statute lists only “physicians,” not
dermatologists, as health care providers. Likewise, a “marriage and
family counselor” practicing counseling or therapy focused on
17
SCOTT v. WINGATE WILDERNESS THERAPY
Opinion of the Court
wilderness experiences is still a “marriage and family therapist” and
a “health care provider” under the Act. See id.
¶45 Jacob’s argument resembles the argument we rejected in
Platts—that an entity qualifies as a health care provider only if their
services are “so similar to those listed as to leave no reasonable doubt
as to their status.” See Platts, 947 P.2d at 660–63 (citation omitted). We
repeat what we said in Platts, the statute “means what it says.” Id.
at 663. Persons and entities expressly listed in the statute are “health
care providers,” as are all “others” rendering care and services
“similar” to—even if not precisely the same as—that of expressly
listed providers. See id. And so long as a person or entity who
qualifies as a “health care provider” performs or should have
performed an “act or treatment” “for, to, or on behalf of a patient
during the patient’s medical care, treatment, or confinement,” then
that act, treatment, or omission qualifies as “health care” under the
Malpractice Act. UTAH CODE § 78B-3-403(10).
¶46 The final tool Jacob uses to prop up his narrow
interpretation of “health care” is a 2002 discussion from the floor of
the Utah Senate. In 2002, the Utah Senate debated, but did not adopt,
an amendment to the Act that would have expressly narrowed the
Act’s application. In Jacob’s words, the amendment would have
made the Act apply “only to claims of professional malpractice and
not to claims of ordinary negligence.” Jacob explains that this
particular amendment was not adopted after some senators
“explained their understanding that the Act already applied only to
claims of professional malpractice” and not to a “slip-and-fall or a
non-malpractice issue.”
¶47 Jacob contends this 2002 debate supports his theory that the
Act and its definition of “health care” were intended only to apply
where the treatment or care at issue involves “the exercise of
professional medical judgment.” We find this discussion far less
helpful than Jacob does for multiple reasons.
¶48 First, what a handful of individual legislators thought the
Act meant is not powerful interpretive evidence. This is especially
true when the debate occurred twenty-six years after the 1976
enactment of the language we are interpreting.
¶49 Second, it is hard to derive meaning from a decision not to
expressly narrow the Act’s scope. That could mean that some
senators thought that the Act already had—and should continue to
have—narrow applicability. It could also mean that some senators
thought that the Act did and should apply more broadly. And, of
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course, we are just hearing from a handful of members of only one of
the bodies necessary to enact legislation.
¶50 Further, and perhaps more importantly, when we find the
plain language of the statute is clear, we need not reach for legislative
history to aid our understanding. See Wilson v. Valley Mental Health,
969 P.2d 416, 418 (Utah 1998) (“When examining a statute, we look
first to its plain language as the best indicator of the legislature’s
intent and purpose in passing the statute. Only if that language is
ambiguous do we then turn to a consideration of legislative history
and relevant policy considerations.”); State v. Bess, 2019 UT 70, ¶ 25,
473 P.3d 157 (“We do not look to other interpretive tools unless we
conclude that the statute is ambiguous.”). Suffice it to say, Jacob’s
legislative history argument does not persuade us to adopt his
narrow interpretation of “health care.”
¶51 Based on the plain language of the statute, we conclude that
“health care” constitutes acts or treatments which were or should
have been “performed or furnished”: (1) “by any health care
provider”; (2) “for, to, or on behalf of a patient”; and (3) “during the
patient’s medical care, treatment, or confinement.” UTAH CODE § 78B-
3-403(10) (emphases added).
B. “Relating to or Arising Out of” Requires More than a Tangential
Relationship But Does Not Require Proximate Causation
¶52 To answer the question that the Tenth Circuit asked, we also
need to decide what the Act means when it requires that a plaintiff’s
alleged injuries “relat[e] to or aris[e] out of” health care. See UTAH
CODE § 78B-3-403(17).
¶53 Jacob’s briefing focuses almost entirely on the scope of
“health care” and not the phrase “relating to or arising out of.” But
Jacob appears to argue that the latter phrase means the claim or
injury must be more than “tangentially related to” health care. See
Dowling, 2004 UT 50, ¶ 11. Wingate argues for a “proximate cause”
requirement but asserts that the health care need only be “a”
proximate cause, not the “sole” cause, to come within the Act’s grip.
We conclude that “relating to or arising out of” casts a wider net than
“proximate cause” but is not so wide as to catch claims and injuries
that are only tangentially related to the provision of health care. And
we find additional limits on the application of the Act by reading
“relating to or arising out of” in context.
¶54 We agree with Jacob that the Act does not apply when a
health care professional’s “alleged transgressions are only
tangentially related to their provision of health care services.” See
Dowling, 2004 UT 50, ¶ 11. The defendant in Dowling, a marriage
19
SCOTT v. WINGATE WILDERNESS THERAPY
Opinion of the Court
counselor who qualified under the Malpractice Act as a “health care
provider,” provided marriage counseling (health care) to the
plaintiff, as well as separately to the plaintiff’s then-husband. Id. ¶ 2.
After the marriage counselor and the plaintiff’s husband proceeded
to have a sexual relationship, the plaintiff sued the marriage
counselor for alienation of affection. Id. ¶¶ 3–5. The marriage
counselor invoked the Act as a defense, arguing the claims arose out
of her provision of health care. Id. ¶ 5.
¶55 The Dowling court concluded the plaintiff’s alleged injuries
related to or arose out of the defendant’s provision of health care to
the husband, not treatment rendered by the defendant to the plaintiff,
and therefore the Act did not apply. Id. ¶ 13. The court held that the
plaintiff must be the “complaining patient” because the Act’s
definition of “health care” applies to treatment rendered during “the
patient’s medical care, treatment, or confinement,” and the plaintiff’s
injuries must “relat[e] to or aris[e] from” that care in order to
constitute a “malpractice action against a health care provider.” See
id. ¶¶ 10–13 (citations omitted). Further, even though the Act
repeatedly uses the word “any” in the definitions of “health care,”
“health care provider,” and “malpractice action against a health care
provider,” and even though the latter also uses the phrase “relating
to or arising out of,” the court rejected the defendant’s overbroad
interpretation of the Act’s applicability. Id. ¶ 11 (citations omitted).
Instead, we held that the Act does not shield a health care
professional whose “alleged transgressions are only tangentially
related to their provision of health care services.” Id.
¶56 We agree and reiterate that an injury does not “relat[e] to or
aris[e] out of” health care where a health care provider’s “alleged
transgressions are only tangentially related to their provision of
health care services.” Id. But while Dowling describes one of the
definition’s boundaries, it does not capture the full meaning of the
phrase “relating to or arising out of.”
¶57 Wingate argues that we should interpret the phrase “relating
to or arising out of health care” to equate to a proximate causation
relationship between the provision of health care and the injury.
Wingate supports its “proximate cause” theory by citing cases that
interpret the then-undefined phrase, “arises out of, in connection
with, or results from,” found in the Utah Government Immunity Act
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(UGIA).17 We find the reasoning used in those cases does not transfer
to the Malpractice Act’s use of the phrase “relating to or arising out
of.”
¶58 The most relevant UGIA case Wingate cites is Barneck v. Utah
Department of Transportation, 2015 UT 50. In Barneck, this court
interpreted “competing provisions” of the UGIA—one provision that
waived governmental immunity for “any injury caused by . . . a
defective, unsafe, or dangerous condition of any highway [or] . . .
culvert,” and another provision creating an exception to such waiver
(i.e., reinstating immunity) where “the injury arises out of, in
connection with, or results from . . . the management of flood waters” or
the “repair, or operation of [a] flood or storm system[].” Id. ¶ 2(alterations in original) (emphasis added) (quoting UTAH CODE
§ 63G–7–301 (2015)). We first held that the waiver of immunity for
“any injury caused by . . . a defective, unsafe, or dangerous condition”
requires an element of reasonable foreseeability, because we found the
waiver sounded in premises liability in tort, which incorporates a
reasonable foreseeability requirement. See id. ¶¶ 14–17 (emphasis
added). We then held the phrase “arises out of, in connection with, or
results from,” which appears in the exception to the waiver, is
properly interpreted in context to apply “only where a plaintiff’s
injury is proximately caused by” the type of conduct specified in the
statute. Id. ¶¶ 39, 43–44 (emphasis added) (citation omitted).
¶59 To reach this conclusion, we reasoned that, “in the context of
a statute aimed at waiving governmental immunity,” it made “little
sense” to interpret the exception to the waiver of immunity to be
broader than the actual waiver. Id. ¶ 43.
¶60 Using similar logic as we used in Barneck, we reach the
opposite conclusion here. The Malpractice Act is designed to
“expedite early evaluation and settlement” of professional
malpractice claims against health care providers by applying certain
hurdles and statutes of limitations to health care malpractice actions.
See UTAH CODE § 78B-3-402(3). Interpreting the reach of the Act too
narrowly would threaten to undermine the protections the Act
17 In 2017, subsequent to this court’s 2015 decision in Barneck v.
Utah Department of Transportation, 2015 UT 50, 353 P.3d. 140, the
legislature defined this phrase in a way that differs from our
interpretation in Barneck. See Governmental Immunity Amendments,
H.B. 399, ch. 300, § 2, 2017 Utah Laws 1463 (codified at UTAH CODE
§ 63G-7-102(1)).
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Opinion of the Court
affords health care providers. And interpreting the phrase “relating
to or arising out of” as equating to “proximate cause” would do
exactly that—it would narrow the potential universe of
circumstances where the Act might otherwise apply. It would make
little sense to constrict the Act’s reach in that way, given the Act’s
goal of expediting and facilitating settlement of claims against health
care providers.
¶61 Further, the way the legislature designed the Malpractice
Act also indicates that “relating to or arising out of” does not mean
“proximate cause.” An argument that the Malpractice Act applies is
one inevitably made by the defendant, not the plaintiff, and one
likely made on a motion to dismiss. Therefore, although a plaintiff
will need to eventually prove that the defendant’s act or omission
proximately caused the alleged injury in order to succeed on the
merits, it makes little sense to force the defendant to prove proximate
causation to establish that the Act ensnares the claim.
¶62 Consider, for example, if the statute of limitations had not
yet run, but the plaintiff had not complied with the Act’s notice or
prelitigation panel requirements. In such a case, the defendant would
move to dismiss, arguing that the plaintiff had not complied with the
Act. And if the court granted that dismissal, it might do so without
prejudice—that is, the court might allow the plaintiff to refile her
case after having complied with the notice and prelitigation panel
requirements. If the defendant had to prove that her own acts or
omissions proximately caused the plaintiff’s alleged injuries in order
to win the initial dismissal, the defendant will have essentially made
part of the plaintiff’s case for when the plaintiff comes back to court
after following the Act’s procedures. This kind of burden shifting
makes little sense in this context.
¶63 Moreover, if the legislature wanted to adopt “proximate
cause” as the standard, they knew how to use that phrase. The
Malpractice Act uses the phrase “proximate cause” in multiple places
and has done so since its 1976 enactment.18 Yet, in the definition of
18 The 1976 Act defines “[t]ort” as “any legal wrong, breach of
duty, or negligent or unlawful act or omission proximately causing
injury or damage to another.” Utah Health Care Malpractice Act, ch.
23, H.B. 35, § 3(28), 1976 Utah Laws at 90, 93 (emphasis added)
(currently codified at UTAH CODE § 78B-3-403(38)). The 1976 Act also
included the phrase “proximate cause” when setting the requirement
for recovery of damages in an action based on a health care
(continued . . .)
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“[m]alpractice action against a health care provider,” the legislature
chose to use the phrase “relating to or arising out of,” not “proximate
cause.” See UTAH CODE § 78B-3-403(17). Taken together, we conclude
that this is ample textual evidence to reject Wingate’s argument that
the legislature meant “proximately caused” when it said “relating to
or arising out of.”
¶64 Once again, we find the Act’s plain language instructive.
There is no magic, nor hidden meaning, in the phrase “relating to or
arising out of.” “Arising” out of means to “originate from.” See Arise,
MERRIAM-WEBSTER, https://www.merriam-
webster.com/dictionary/ arise (last updated June 23, 2021).
“Relating to” means to have a connection with. See Relate To,
MERRIAM-WEBSTER, https://www.merriam-
webster.com/dictionary/relate%20to (last visited June 15, 2021).
When read in context, it becomes evident that the terms “health care”
and “health care provider” do the heavy lifting in defining when the
Act applies.
C. A “Malpractice Action Against a Health Care Provider”
Requires That the Patient’s Injuries “Relate to or Arise Out of”
“Health Care” Rendered by a “Health Care Provider”
¶65 As discussed above, see supra ¶¶ 23–26, the Malpractice
Act applies to any “malpractice action against a health care
provider.” See e.g., UTAH CODE §§ 78B-3-404, -412. The Act defines
“[m]alpractice action against a health care provider,” id. § 78B-3-
403(17), “[h]ealth care,” id. § 78B-3-403(10), and “[h]ealth care
provider.” Id. § 78B-3-403(12). Reading these definitions together, the
Act applies only if the injuries:
(1) “relat[e] to or aris[e] out of”
(2) “health care,” i.e., “any act or treatment performed
or furnished, or which should have been performed or
furnished”:
“provider’s failure to obtain informed consent,” requiring the
plaintiff to prove that the “unauthorized part of the health care
rendered was the proximate cause of personal injuries suffered by the
patient.” § 5(1)(g), 1976 Utah Laws at 95 (emphasis added) (currently
codified at UTAH CODE § 78B-3-406(1)(b)(vii)). More recently, the
legislature added the phrase “proximately” into yet another section
of the Act. See UTAH CODE § 78B-3-426(3)(c) (requiring a “nonpatient
plaintiff” to show their “injury was proximately caused by an act or
omission of the health care provider” (emphasis added)).
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Opinion of the Court
(a) “for, to, or on behalf of a patient”;
(b) “during the patient’s medical care, treatment, or
confinement”; and
(c) by a listed “health care provider” or others
“rendering similar care and services,” or their
“officers, employees, or agents” who “render[]
health care” while “acting in the course and scope of
their employment.”
See id. § 78B-3-403(10), (12), (17); see also supra ¶¶ 23–26.
¶66 If any one of the elements is not met, the Act does not
apply. Determining whether there was “health care” requires
examining: who performed (or should have performed) the acts in
question; what was the scope of the care or treatment the health care
provider prescribed, ordered, designed, or carried out for the patient;
and whether a particular act occurred during that treatment or care
for the patient—that is, whether the act explicitly or implicitly falls
within the scope, and in the course of, the treatment or care
prescribed, designed, or ordered for the patient. See supra ¶¶ 35–51.
¶67 Once we determine that “health care” was rendered (or
should have been rendered) by a “health care provider,” we then
look to the relationship between that health care and the patient’s
injuries. The patient’s injuries must “relat[e] to or aris[e] out of” the
health care rendered by the health care provider. UTAH CODE § 78B-
3-403(17). That is, the injury must originate from or be connected to
something a health care provider did or should have done in the
course of providing health care to that patient. See supra ¶ 64.
¶68 A useful way to conceptualize how these provisions and
requirements fit together to fence in the Act’s applicability is through
hypotheticals which rise or fall on one or more of these statutory
requirements.
¶69 For example, the Dowling court hypothesized that the Act
would not apply to a patient’s tort claim for conversion against their
doctor who stole money from the patient’s wallet during a medical
examination. See Dowling, 2004 UT 50, ¶ 11. We agree. Even if the
doctor is a “health care provider” and had provided “health care”
during the patient’s visit, the patient’s loss of cash is not an injury
that originated from the provision of health care. Theft cannot
reasonably be said to be an act or treatment “for, to, or on behalf of”
the patient, nor in the course of or “during the patient’s medical care,
treatment, or confinement.” See UTAH CODE § 78B-3-403(10). Even
using the broadest view of “medical care, treatment, or
confinement,” there is no conceivable medical or health purpose of
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theft; nor is theft an omission of or a negligent version of an act that
does have a medical or health purpose. Thus, the patient’s loss of the
wallet does not “relat[e] to or aris[e] out of heath care.” See id. § 78B-
3-403(17).
¶70 Jacob forwarded a number of hypotheticals in which he
argues the Act should not apply.19 For example, Jacob posits that if a
plaintiff slipped and fell in a hospital hallway on a puddle of soda, it
would be “absurd” to require that plaintiff to get a “cardiologist’s
opinion that [the] unaddressed soda spill in the hospital hallway
caused the fall.” Jacob’s assertion misses the point—whether the Act
applies depends on whether the precise situation and claims meet the
definition of a “malpractice action against a health care provider,”
which requires examining whether the injuries “relat[e] to or aris[e]
out of” “health care” performed by a “health care provider.” See
UTAH CODE § 78B-3-403(17); see also supra ¶¶ 35–51, 65–67. There is
some overlap in these questions—act or treatment is not “health
care” unless it was furnished by a “health care provider,” see id.
§ 78B-3-403(10); and a person is not a “health care provider” unless
they render “health care.” See id. § 78B-3-403(12). But these questions
must nevertheless be answered for the lawsuit to be a “malpractice
action against a health care provider.” And the answers may be
highly fact-dependent.
19 Although we find that the Act would not apply in some of the
hypotheticals Jacob advances, we do so using a different rationale
than Jacob does. Jacob argues it would be “absurd” to apply the Act
to several hypotheticals because of the Act’s requirement that
plaintiffs must, before filing a health care malpractice action in
district court, have their claims evaluated by a prelitigation medical
review panel that includes a “licensed health care provider[]” who is
“practicing and knowledgeable in the same specialty as the proposed
defendant.” UTAH CODE § 78B-3-416(4)(b)(i). In so arguing, Jacob
alludes to the absurdity doctrine, which permits this court to read a
statute contrary to its plain meaning when “the operation of the plain
language” is “so overwhelmingly absurd that no rational legislator
could have intended the statute to operate in such a manner.” Bagley
v. Bagley, 2016 UT 48, ¶ 28, 387 P.3d 1000 (citation omitted). We agree
the Act doesn’t apply to some versions of Jacob’s hypothetical
situations—not because it would be “absurd” to do so, but because
his hypotheticals fail one or more of the statute’s definitional
requirements. See supra ¶ 65.
25
SCOTT v. WINGATE WILDERNESS THERAPY
Opinion of the Court
¶71 If the slip-and-fall claim Jacob envisions arises from a
janitor’s failure to remove the soda spill in the hallway, we would
examine whether the failure to clean was “health care” and whether
the janitor was a “health care provider.” The cleaning or failure to
clean is “health care” only if it was “for, to, or on behalf of [the]
patient during the patient’s medical care, treatment, or confinement”
and done by a “health care provider.” See id. § 78B-3-403(10). And
because a janitor is not a listed “health care provider,” we would
examine whether the janitor was “render[ing] health care as” an
“employee[] or agent[] of” a listed health care provider while “acting
in the course and scope of [the janitor’s] employment.” See id. § 78B-
3-403(12); see also supra ¶ 38.20 The failure to clean the hallway is
likely within the janitor’s scope of employment with the hospital but
would likely not have been “for, to, or on behalf of the patient during
the patient’s medical care, treatment, or confinement.”
¶72 That is not to say that a hospital’s custodial staff might never
undertake an action that could be considered health care. If a janitor
is tasked to do something “for, to, or on behalf of a patient during the
patient’s medical care” and those acts are “in the course and scope of
[the custodian’s] employment,” the Act could apply. For example, if
a cardiologist orders a frail post-operative patient to walk down a
hallway assisted by a janitor as a part of physical rehabilitation, and
if that janitor failed to protect the patient from a dangerous condition
upon which the patient was injured, then the patient’s claim in that
case might be within the Act. Even if that staffer was not a listed
health care provider or one of the “others rendering similar care and
services,” if that staffer was an “employee” or “agent” of such a
provider, and “acting in the course and scope of their employment,”
and furnishing an “act or treatment . . . for, to, or on behalf of a
patient during the patient’s medical care, treatment, or confinement”
prescribed by the cardiologist, then that staffer was acting as a
“health care provider,” see UTAH CODE § 78B-3-403(12), and
furnishing “health care.” See id. § 78B-3-403(10); see also supra ¶¶ 25,
38. And the patient’s claim for the staffer’s negligent assistance
would “relat[e] to or aris[e] out of health care” because the injury
20 For the purpose of this hypothetical, we assume that the
hospital where the injury occurs employs the janitor. A hospital is a
listed health care provider under the Malpractice Act. See UTAH CODE
§ 78B-3-403(12).
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originated out of the provision of that care. See UTAH CODE § 78B-3-
403(17).21
¶73 Similarly, we agree with Jacob that the Act would likely not
apply if the plaintiff were injured in an ambulance because of a
mechanical failure. Although we agree with Jacob’s conclusion that it
would be absurd to “obtain a paramedic’s opinion that missing lug
nuts caused the accident,” that’s not why the Act wouldn’t apply.
Rather, if the claim is that the patient’s injury arose from a
mechanic’s negligent installation of the ambulance’s lug nuts, the
injury did not arise from “health care” rendered by a “health care
provider.” That’s because the mechanic’s general auto-mechanic
maintenance work could not reasonably be considered “for, to, or on
behalf of” that patient and within the course of or “during” that
patient’s “medical care, treatment, or confinement.” See UTAH CODE
§ 78B-3-403(10); see also supra ¶ 36.
¶74 But if, on the other hand, the plaintiff alleged that a
paramedic negligently chose a detour that delayed the patient’s
arrival at the hospital, and the plaintiff’s injuries arose from that
delay, the plaintiff’s claims might very well “relate to or arise out of”
health care. Cf. Carter v. Milford Valley Mem’l Hosp., 2000 UT App 21,
¶¶ 4–6, 20–21, 996 P.2d 1076 (explaining that paramedics are more
than “chauffeur[s]” and are called upon to render emergency care
and make decisions to preserve the life of the patient during
transportation).
¶75 In sum, we reiterate that the meaning of “malpractice
action[s] against a health care provider” comes not from reading
individual words or phrases in isolation, but in looking at “health
care,” “health care provider,” and “relating to or arising out of” read
together in the context in which the statute presents them.
21 To Jacob’s assertion that it would be “absurd” to have a
cardiologist opine on a slip-and-fall case as part of the prelitigation
review panel—a reasonable legislator could design a system where a
health care provider familiar with the duties and safety protocols
involved in post-operative physical rehab would sit on the
prelitigation review panel and opine on the plaintiff’s claim that a
health provider breached the standard of care in maintaining a safe
environment for post-operative rehabilitation.
27
SCOTT v. WINGATE WILDERNESS THERAPY
Opinion of the Court
II. JACOB’S INJURIES “RELAT[E] TO OR ARIS[E] OUT OF
HEALTH CARE RENDERED OR WHICH SHOULD HAVE
BEEN RENDERED BY A HEALTH CARE PROVIDER”
¶76 The Tenth Circuit asked us to not only opine on the Act’s
meaning, but to analyze whether the Act applied to the claims Jacob
raises. We conclude that (A) at least part of the wilderness therapy
Wingate provided to Jacob was health care and (B) Jacob’s injuries
relate to or arise out of that health care.
A. The Relevant Part of Jacob’s “Wilderness Therapy”
Excursion Was “Health Care”
¶77 Jacob argues that that the particular acts which resulted in
his injuries—hiking and rock climbing—do not constitute “health
care.” Jacob contends that Wingate’s program consists of “two
separate components”—the “traditional counseling” component
performed by Wingate’s Therapist and the “wilderness experience”
component performed by Wingate’s field staff—and that only the
former qualifies as “health care.” Jacob reaches that conclusion by
explaining that “[t]raditional counseling qualifies as health care
because it is an act or treatment performed by social workers and
marriage and family counselors, both of whom are among the health
care providers listed in the Act.” Jacob contends that “wilderness
therapy is not ‘health care’” in part because the field staff who
provide the wilderness experiences do not have “medical licenses”
and do not exercise “professional medical judgment.” He further
reasons that “[n]o provider listed in the Act furnishes back-country
travel, wilderness living, adventure experiences, the application of
primitive skills, or other similar services.”
¶78 Wingate, on the other hand, argues that the “group hike
during which [Jacob’s] injury occurred . . . cannot be divorced from
the treatment WinGate was providing.” Wingate explains that
hiking, camping, and “continuous interactions with the wilderness
more generally[] are therapeutic by design and intention.” Wingate
further explains it was “implementing [Jacob’s] treatment plan at the
time of Jacob’s injury” and was “performing or furnishing to Jacob
the very type of activities [the Therapist] had identified as part of
Jacob’s eight-week therapeutic program: hiking and immersive
wilderness experiences designed to provide increased confidence
and develop problem solving and self-care skills.”
¶79 We agree with Wingate that it was acting as a “health care
provider” and providing “health care” when Jacob was hiking and
rock climbing. Contrary to Jacob’s assertion, the fact that Wingate’s
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field staff, and not the Therapist, directly supervised the hike does
not change this conclusion.
¶80 Our path to this conclusion starts from the premise that
Wingate’s Therapist is a “health care provider” and provided
counseling or mental health treatment that constituted “health
care.”22 We examine the scope of the care or treatment Wingate’s
Therapist prescribed, ordered, or designed for Jacob; and we
examine whether the acts giving rise to Jacob’s injuries (hiking and
rock climbing) fall within the scope of that treatment or care. See
supra ¶¶ 36, 66–67. Or, to use the language of the Act, we examine
whether hiking and rock climbing opportunities were furnished “for
. . . or on behalf of” Jacob and “during [his] medical care, treatment,
or confinement.” See UTAH CODE § 78B-3-403(10).
¶81 Wingate’s Therapist created a written “treatment plan” for
Jacob that included not only “individual and group therapy,” but
also called for Jacob to be “immersed in wilderness principles and
experiences,” “learn outdoor survival skills,” and “be introduced to
new philosophies and strategies to assist him in creating a more
effective path for himself and for his family relationships.” Scott v.
Wingate Wilderness Therapy, LLC (Scott II), 792 F. App’x 590, 592 (10th
Cir. 2019). The Therapist’s affidavit also described Jacob’s treatment
plan as including “hiking (exercise).” Id. Thus, the scope of the
treatment prescribed indicates that the group hike and the rock
climbing during that hike were done “for . . . or on behalf of” Jacob,
22 By way of reminder, the district court determined that Wingate
is a “health care provider,” and the Tenth Circuit has not asked us to
review that determination. See Scott v. Wingate Wilderness Therapy,
LLC (Scott II), 792 F. App’x 590, 591, 594–95 (10th Cir. 2019). The
district court based its determination on the fact Wingate employs
“several licensed medical and mental health professionals,”
including a “licensed marriage and family therapist,” who provide
“behavioral or mental health services.” Scott v. Wingate Wilderness
Therapy, LLC (Scott I), No. 4:18-CV-0002-DN, 2019 WL 1206901, at *3–
5 (D. Utah Mar. 14, 2019). We also note that a “marriage and family
therapist” is an expressly listed “health care provider” under the Act.
UTAH CODE § 78B-3-403(12), (18). Jacob concedes that the “traditional
counseling” provided by Wingate’s Therapist “does qualify as
‘health care.’”
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SCOTT v. WINGATE WILDERNESS THERAPY
Opinion of the Court
“during [his] medical care, treatment, or confinement” and therefore
constitutes “health care.” See UTAH CODE § 78B-3-403(10).23
¶82 We next examine who carried out the acts that gave rise to
Jacob’s injuries: Wingate’s field staff. See supra ¶ 66. We reject Jacob’s
argument that the hike and wilderness therapy component of
Wingate’s program cannot be deemed “health care” because it was
operated by Wingate’s field staff who lack “medical licenses” and
“exercised no professional medical judgment when they allowed
Jacob to climb” the rock formation. As discussed above, the Act does
not require a “health care provider” to exercise “medical judgment or
expertise” or have a “medical license” in the way Jacob posits. See
supra ¶¶ 37–40. Also as discussed above, “health care provider”
includes any “association, corporation, or other facility or institution”
that renders health care or professional services as any of the listed
providers or “others rendering similar care.” UTAH CODE § 78B-3-
403(12). “Health care provider” also includes the “officers,
employees, or agents of any of the above acting in the course and
scope of their employment.” Id. Therefore, in this case, Wingate’s
field staff qualify as “health care providers” under the Act because
Wingate employs a “marriage and family therapist”—a listed “health
care provider” under the Act—and because Wingate’s field staff
acted within the “course and scope of their employment” when
carrying out the treatment plan the Therapist created. See supra ¶ 38.
¶83 We also reject Jacob’s contention that “wilderness therapy”
cannot be considered “health care” because “[n]o [health care]
provider listed in the Act furnishes back-country travel, wilderness
living, adventure experiences, the application of primitive skills, or
23 An astute observer might note that Jacob’s injury took place
while climbing a rock formation, and “climbing” was not listed in
Jacob’s treatment plan—neither in the written plan nor the
Therapist’s subsequent affidavit. See Scott II, 792 F. App’x at 592. In
response we would note that the treatment plan included not only
hiking (and thus encompassed the ordinary or planned part of the
group hike), it also included the broader goals of “immers[ion] in
wilderness principles and experiences,” and “learn[ing] outdoor
survival skills,” id., which could implicitly encompass climbing. We
pass no judgment on the merits of such a broad treatment plan. And
we note that a challenge to the creation of such a broad treatment
plan would, if brought in the form of a lawsuit, constitute a challenge
to the provision of health care and thus would need to comply with
the Act.
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other similar services.” First, as discussed above, each individual
sub-specialty or sub-type of service need not be listed in the Act to
fall within the bounds of “health care provider” and “health care.”
See supra ¶¶ 41–45. A “marriage and family counselor” practicing
counseling or therapy that is focused on wilderness experiences is
still a “marriage and family therapist” and a listed “health care
provider” under the Act, even though their practice may be sub-
specialized. See supra ¶¶ 41–45. And again, so long as that health care
provider—or their agents or employees acting within the scope of
employment—performed an act or omission “for, to, or on behalf of”
Jacob, “during [his] medical care, treatment, or confinement,” the
Malpractice Act deems that to be “health care.” See UTAH CODE
§ 78B-3-403(10), (12); see also supra ¶ 38.
¶84 Further, Jacob provides no support for the proposition that
“[n]o provider listed in the Act furnishes” wilderness therapy. The
fact that “outdoor youth programs” such as Wingate are licensed
under a detailed set of state regulations to provide therapy in the
wilderness, and those rules require employment of specific clinical
and therapeutic personnel including, but not limited, to a “licensed
marriage and family counselor,” militates against Jacob’s
proposition. See UTAH ADMIN. CODE r. 501-8-1–23; see also UTAH CODE
§ 62A-2-101(33) (2014); id. § 62A-2-101(33) (2021).
¶85 To the extent Jacob believes it is improper for Wingate’s
Therapist to use “wilderness therapy” and a broad set of “wilderness
experiences” as a health treatment tool, or to the extent Jacob believes
it was improper for the Therapist to delegate implementation of that
care to field staff, such arguments squarely challenge the Therapist’s
professional judgment and thus sound in malpractice. We
acknowledge that Jacob describes his claims as not based on the
Therapist’s recommendation to hike or experience wilderness
activities, and instead as “based on Wingate’s field staff members’
decision to allow him and others to detour from a designated hiking
route to climb a dangerous rock formation unattended and without
assistance.” In other words, Jacob doesn’t challenge the treatment
that was prescribed, but the way that treatment was carried out or
implemented. But that distinction doesn’t let his claims escape the
Act’s grip. Improper implementation of a health care treatment is still
“health care,” because the Act defines “health care” to include not
only affirmative acts, but also those acts or treatments that “should
have been performed or furnished.” UTAH CODE § 78B-3-403(10).
31
SCOTT v. WINGATE WILDERNESS THERAPY
Opinion of the Court
B. Jacob’s Claim “Relat[es] to or Aris[es] Out of” the Treatment
Prescribed and Rendered by Wingate
¶86 Sticking with his theory that only the traditional counseling
part of Wingate’s services constitute “health care,” Jacob argues that
the Therapist’s “counseling was not the proximate cause of his
injury” and, therefore, his rock climbing injury does not “relat[e] to
or aris[e] out of health care.” Jacob reasons that the persons directly
responsible for his injuries are Wingate’s field staff—who Jacob
contends are not “health care providers”—and those field staff broke
the causal chain with the Therapist. Wingate, on the other hand,
contends that its provision of “health care”—i.e., all of Jacob’s
wilderness experiences— is “a proximate cause” of Jacob’s injuries as
alleged, and therefore the injuries “relat[e] to or aris[e] out of health
care.”
¶87 Jacob claims Wingate breached its duty of care to him by
(i) allowing the youth to take a detour from the
designated route [of the group hike]; (ii) allowing the
lead staff member to leave the group with only one
staff member remaining with the group; (iii) not doing
anything to determine whether the climbing of the rock
formation would be safe for the youth; (iv) not properly
assessing the danger of allowing the youth to climb the
rock formation; (v) allowing the youth to climb the
dangerous rock formation without supervision;
(vi) allow[ing] the youth to climb the dangerous rock
formation without any safety gear; (vii) not assisting
Jacob with his descent down the rock formation[;] and
(viii) instructing [Jacob] to climb down the rock
formation when and where it was dangerous to do so.
Scott II, 792 F. App’x at 592–93 (last three alterations in original)
(quoting Scott v. Wingate Wilderness Therapy, LLC (Scott I), No. 4:18-
CV-0002-DN, 2019 WL 1206901, at *2 (D. Utah Mar. 14, 2019)).
¶88 In other words, Jacob claims that Wingate negligently
implemented and negligently supervised the group hike—which was
part of Jacob’s treatment plan—by allowing Jacob to participate in an
unplanned and unsafe rock climbing activity, which ultimately
resulted in Jacob’s knee injury. These all “relat[e] to” and “aris[e] out
of” Wingate’s provision of mental health care because they occurred
during Jacob’s treatment. That is, the climbing injury arises or
originates from Wingate’s staff’s implementation of the wilderness
therapy treatment plan the Therapist created for Jacob—a treatment
plan that called for Jacob to hike and have wilderness experiences.
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¶89 That Wingate’s staff may have negligently implemented
Jacob’s treatment does not mean that negligent treatment escapes the
Act’s grip. This is precisely what the Act ensnares. A “malpractice
action against a health care provider” applies to tort claims against
any health care provider for “injuries relating to or arising out of
health care rendered or which should have been rendered by the health
care provider.” UTAH CODE § 78B-3-403(17) (emphasis added).
Likewise, “health care” applies not only to affirmative acts or
treatments, but also to those “which should have been performed or
furnished.” Id. § 78B-3-403(10) (emphasis added).
¶90 Jacob’s suggestion that the Act does not apply because
Wingate failed to protect him from unsafe conditions is reminiscent
of arguments made by the plaintiff in Smith v. Four Corners Mental
Health Center, Inc.—arguments we rejected. See 2003 UT 23, 70 P.3d
904. In Four Corners, the plaintiff argued that, during the defendant’s
provision of foster care services (which were not considered health
care), the defendant “negligently supervised” the plaintiff and
another foster child, who harmed the plaintiff, and that this negligent
foster care supervision was the cause of the plaintiff’s injuries, not
the defendant’s provision of mental health services (which was
undisputedly health care). See id. ¶¶ 31–32. We disagreed,
concluding the plaintiff’s “allegations all arise out of [the
defendant’s] provision of mental health services” because the
complaint alleged the defendant knew or should have known of the
third party assailant’s “violent character” and “fail[ed] to supervise
the preparation and implementation of [the plaintiff’s] treatment
plan.” Id. ¶ 35.
¶91 Similarly, here, Jacob essentially alleges that Wingate failed
to properly supervise the implementation of his mental health
treatment plan. Jacob’s treatment plan broadly included
“immers[ion] in wilderness principles,” “learn[ing] outdoor survival
skills,” and hiking so that he will be “introduced to new philosophies
and strategies to assist him in creating a more effective path for
himself and for his family relationships.” Scott II, 792 F. App’x at 592.
In other words, Jacob’s treatment plan included not only traditional
notions of mental health counseling, but also testing physical skills in
the wilderness. Taking this treatment plan and its purported
therapeutic value on its face, we conclude that Jacob’s rock climbing
injuries reasonably “relat[e] to or aris[e] out” the health care Wingate
was providing.
¶92 Jacob pushes back against this conclusion, arguing that it
yields absurd results. Jacob contends that because “the only licensed
health care provider to interact with Jacob during his time at Wingate
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SCOTT v. WINGATE WILDERNESS THERAPY
Opinion of the Court
was . . . a licensed marriage and family counselor,” it would be
“absurd” to apply the Act’s prelitigation panel review requirement
because that would “requir[e] Jacob to have obtained a marriage and
family counselor’s opinion that the rock formation was unsafe to
climb.”
¶93 Jacob’s argument seems to be premised on a notion that
another marriage and family counselor, or another mental health
provider, would and could not be versed in wilderness therapy and
the proper implementation thereof. This is one of the rationales Jacob
supplies for his assertion that wilderness therapy is not “health care,”
because “no provider listed in the Act furnishes” wilderness therapy.
As we highlighted when we rejected this argument the first time
around, see supra ¶¶ 83–84, “outdoor youth programs” such as
Wingate are licensed under a detailed set of state regulations to
provide therapy in the wilderness, and are required by those rules to
employ specific clinical and therapeutic personnel including, but not
limited, to a “licensed marriage and family counselor.” See UTAH
ADMIN. CODE r. 501-8-1–23; see also UTAH CODE § 62A-2-101(33). It
would not be absurd for the legislature to believe that there are other
therapists or counselors practicing in wilderness therapy who could
sit on the prelitigation panel to opine on the safe implementation of
such therapy, including the extent to which Wingate’s staffer should
have protected Jacob from unsafe conditions during therapeutic
activities.
CONCLUSION
¶94 An injury sustained while climbing a rock formation during
a “wilderness therapy” excursion operated by the defendant
“relat[es] to or aris[es] out of health care rendered . . . by a health care
provider” within the meaning of the Act, where the defendant is or
employs a health care provider who prescribed hiking, wilderness
experiences, and learning outdoor survival skills as part of the
plaintiff’s therapeutic treatment plan, that plan was carried out by the
defendant’s staff, and the plaintiff’s injuries occurred during the
plan’s execution. Such is the case here and the Act applies to Jacob’s
claims.
34