Charles H. Thronson, USB 3260 Nicholas Bernard, USB 15996 PARSONS BEHLE & LATIMER 201 South Main Street, Suite 1800 Salt Lake City, Utah 84111 Telephone: 801.532.1234 Facsimile: 801.536.6111 cthronson@parsonsbehle.com NBernard@parsonsbehle.com Attorneys for Plaintiff IN THE THIRD JUDICIAL DISTRICT COURT FOR THE COUNTY OF SALT LAKE, STATE OF UTAH ERIK JENSEN, vs. Plaintiff, IHC HEALTH SERVICES, INC. d/b/a LDS HOSPITAL, Defendant. PLAINTIFF'S SUBMISSION OF PROPOSED JURY INSTRUCTIONS Civil No. 150900735 Judge Barry Lawrence Tier 3 As set forth in the Jury Pretrial Order dated July 18, 2018, plaintiff, by and through counsel, hereby submits proposed Jury Instructions to be given at trial. The set of the proposed jury instructions with citations to authorities is attached as Exhibit A. A clean set of the proposed jury instructions is attached as Exhibit B. 4819-6994-7008v1
DATED this 20th day of November, 2018. /s/ Charles H. Thronson CHARLES H. THRONSON NICHOLAS N. BERNARD PARSONS BEHLE & LATIMER Attorneys for Plaintiff 4819-6994-7008v1 2
CERTIFICATE OF SERVICE I hereby certify that on this 20th day of November, 2018, I filed the foregoing PLAINTIFF'S SUBMISSION OF PROPOSED JURY INSTRUCTIONS with the Court through the ECF Greenfiling system, which caused a copy to be sent to the following: Brinton R. Burbidge bburbidge@burbidgewhite.com Paul Van Komen pvankomen@burbidgewhite.com BURBIDGE & WHITE, LLC Attorneys for Defendant IHC Health Services, Inc. dba LDS Hospital 102 East 200 South, Suite 600 Salt Lake City, Utah 84111 /s/ Charles H. Thronson 4819-6994-7008v1 3
EXHIBIT A Instructions with Citations to Authorities
Utah law requires a person who is the victim of medical malpractice to initiate a legal action within two years after he discovers, or should have discovered, his "legal injury." This is referred to as a statute of limitations. Discovering a "legal injury" means that the patient knows or should know of both the fact of injury and that the injury resulted from the Defendant's negligence. Daniels v. Gamma West, 2009 UT 9. Foil vs. Ballinger, 601 P.2d 144 (Utah 1979). Arnold v. Grigsby, 2012 UT 161, 289 P.3d 449 (Arnold IV). Arnold v. Grigsby, 2018 UT 14, 417 P.3d 606 (Arnold V). 2
Erik Jensen initiated a legal action against IHC Health Services, Inc., doing business as LDS Hospital (IHC), in this case on March 21, 2014. IHC claims that Erik Jensen discovered or should have discovered his legal injury on or before March 20, 2012, and, therefore, his claims against it are barred by the statute of limitations. IHC has the burden of proof to establish, by a preponderance of the evidence, that Erik Jensen should have discovered his legal injury on or before March 20, 2012. Utah Code 78B-3-404 Arnold IV Arnold V 3
The Utah Supreme Court has made prior rulings which are binding on you. Such prior rulings are that the following may be considered, but they are not, standing alone, sufficient to commence the running of the statute of limitations: (a) A patient merely suspecting that his injury may have resulted from the Defendant's negligence. (b) A patient's mere belief that something had gone wrong or something happened that shouldn't have happened. (c) A patient's knowledge that he has suffered complications from a medical treatment or procedure. This is because there often is a great disparity in the knowledge of those who provide healthcare services and those who receive the services with respect to the expected and unexpected side effects of a given procedure, as well as the nature, degree, and extent of expected after-effects. (d) The commencement of an investigation by an injured patient or his lawyer to determine whether his injury was a result of negligence. Such an investigation, by its nature, indicates that the plaintiff has not yet discovered his injury resulted from negligence and has thus not yet discovered his legal injury. Indeed, the purpose of an investigation is typically to uncover facts that might lead an ordinary person to conclude that a claim for negligence may exist. In other words, an injured patient cannot be charged with knowledge that his injury resulted from negligence on the date he begins his investigation to determine whether his injury resulted from negligence. Arnold IV Arnold V 4
The law considers Erik Jensen, Deon Jensen and Todd Jensen as separate individuals regardless of the fact that they are related. Accordingly, evidence that Dean or Todd had information, knowledge or suspicion about the events that caused Erik Jensen's injury, or who may have been at fault for that injury, should not be considered as evidence that Erik had such information or knowledge, unless there is evidence that Todd or Deon passed such information or knowledge on to Erik. Under Utah law, an agency relationship may not be presumed, but must be clearly demonstrated. 4845-2250-8672v I 5
"DISCOVERY OF INJURY" DEFINED "Discovery" of an injury from medical malpractice occurs when a patient through reasonable diligence knows or should know each of the following: (1) that he sustained an injury; (2) the cause of the injury; and (3) that the injury was caused by negligence. CV325 Daniels v. Gamma West, 2009 UT 26. Seale v. Gowans, 923 P.2d 1361 (Utah 1996). Chapman v. Primary Children's Hosp., 784 P.2d 1181 (Utah 1989). Brower v. Brown, 744 P.2d 1337 (Utah 1987). Hove v. McMaster, 621 P.2d 694 (Utah 1980). Foil v. Ballinger, 601 P.2d 144 (Utah 1979). McDougal v. Weed, 945 P.2d 175 (Utah App. 1997). MUJI 1St Instruction 6.37 Collins v. Wilson, 1999 UT 56, 24, 984 P.2d 960 Arnold IV Arnold V 6
"CAUSE OF INJURY" The "cause of an injury" means that the patient knows or should know all of the relevant facts that led to the injury. If the patient does not know all of the relevant facts that led to the injury, then the patient does not know the cause of an injury. Daniels v. Gamma West Arnold IV 7
The term "legal injury" means that: JURY INSTRUCTION "LEGAL INJURY" (a) the patient knows or should know that he sustained a physical injury, and the nature and extent of that injury; and (b) (c) the patient knows or should know the relevant facts that led to the injury; and that the injury was caused by negligence. CV325 Daniels v. Gamma West, 2009 UT 26. Seale v. Gowans, 923 P.2d 1361 (Utah 1996). Chapman v. Primary Children's Hosp., 784 P.2d 1181 (Utah 1989). Brower v. Brown, 744 P.2d 1337 (Utah 1987). Hove v. McMaster, 621 P.2d 694 (Utah 1980). Foil v. Ballinger, 601 P.2d 144 (Utah 1979). McDougal v. Weed, 945 P.2d 175 (Utah App. 1997). MUJI 1' Instruction 6.37 Collins v. Wilson, 1999 UT 56, 24, 984 P.2d 960 Arnold IV Arnold V 4845-2250-8672v I 8
"SUSTAINED AN INJURY" Knowledge by a patient that he sustained an injury means that the patient must know the nature and extent of the injury. CV325 Daniels v. Gamma West, 2009 UT 26. Seale v. Gowans, 923 P.2d 1361 (Utah 1996). Chapman v. Primary Children's Hosp., 784 P.2d 1181 (Utah 1989). Brower v. Brown, 744 P.2d 1337 (Utah 1987). Hove v. McMaster, 621 P.2d 694 (Utah 1980). Foil v. Ballinger, 601 P.2d 144 (Utah 1979). McDougal v. Weed, 945 P.2d 175 (Utah App. 1997). MUJI 1St Instruction 6.37 Collins v. Wilson, 1999 UT 56, 24, 984 P.2d 960 Arnold IV Arnold V 9
SPECIAL VERDICT FORM Instructions: As soon as six or more of you agree on the answer to the question, the foreperson should answer the question, sign and date the verdict form and tell the bailiff you have finished. The bailiff will escort you back to this courtroom; you should bring the completed Special Verdict with you. Question: Do you find that IHC has established by a preponderance of the evidence that Erik Jensen should have discovered by March 20, 2012 that he had an injury and that it was caused by the negligence of IHC? Yes No Signature of Foreperson Date 10
EXHIBIT B Instructions Clean Set 1 1
Utah law requires a person who is the victim of medical malpractice to initiate a legal action within two years after he discovers, or should have discovered, his "legal injury." This is referred to as a statute of limitations. Discovering a "legal injury" means that the patient knows or should know of both the fact of injury and that the injury resulted from the Defendant's negligence. 12
Erik Jensen initiated a legal action against IHC Health Services, Inc., doing business as LDS Hospital (IHC), in this case on March 21, 2014. IHC claims that Erik Jensen discovered or should have discovered his legal injury on or before March 20, 2012, and, therefore, his claims against it are barred by the statute of limitations. IHC has the burden of proof to establish, by a preponderance of the evidence, that Erik Jensen should have discovered his legal injury on or before March 20, 2012. 13
The Utah Supreme Court has made prior rulings which are binding on you. Such prior rulings are that the following may be considered, but they are not, standing alone, sufficient to commence the running of the statute of limitations: (a) A patient merely suspecting that his injury may have resulted from the Defendant's negligence. (b) A patient's mere belief that something had gone wrong or something happened that shouldn't have happened. (c) A patient's knowledge that he has suffered complications from a medical treatment or procedure. This is because there often is a great disparity in the knowledge of those who provide healthcare services and those who receive the services with respect to the expected and unexpected side effects of a given procedure, as well as the nature, degree, and extent of expected after-effects. (d) The commencement of an investigation by an injured patient or his lawyer to determine whether his injury was a result of negligence. Such an investigation, by its nature, indicates that the plaintiff has not yet discovered his injury resulted from negligence and has thus not yet discovered his legal injury. Indeed, the purpose of an investigation is typically to uncover facts that might lead an ordinary person to conclude that a claim for negligence may exist. In other words, an injured patient cannot be charged with knowledge that his injury resulted from negligence on the date he begins his investigation to determine whether his injury resulted from negligence. 14
The law considers Erik Jensen, Deon Jensen and Todd Jensen as separate individuals regardless of the fact that they are related. Accordingly, evidence that Dean or Todd had information, knowledge or suspicion about the events that caused Erik Jensen's injury, or who may have been at fault for that injury, should not be considered as evidence that Erik had such information or knowledge, unless there is evidence that Todd or Deon passed such information or knowledge on to Erik. Under Utah law, an agency relationship may not be presumed, but must be clearly demonstrated. 15
WRY INSTRUCTION "DISCOVERY OF INJURY" DEFINED "Discovery" of an injury from medical malpractice occurs when a patient through reasonable diligence knows or should know each of the following: (1) that he sustained an injury; (2) the cause of the injury; and (3) that the injury was caused by negligence. 16
"CAUSE OF INJURY" The "cause of an injury" means that the patient knows or should know all of the relevant facts that led to the injury. If the patient does not know all of the relevant facts that led to the injury, then the patient does not know the cause of an injury. 4845-2250-8672v I 17
The term "legal injury" means that: JURY INSTRUCTION "LEGAL INJURY" (a) the patient knows or should know that he sustained a physical injury, and the nature and extent of that injury; and (b) (c) the patient knows or should know the relevant facts that led to the injury; and that the injury was caused by negligence. 18
"SUSTAINED AN INJURY" Knowledge by a patient that he sustained an injury means that the patient must know the nature and extent of the injury. 19
SPECIAL VERDICT FORM Instructions: As soon as six or more of you agree on the answer to the question, the foreperson should answer the question, sign and date the verdict form and tell the bailiff you have finished. The bailiff will escort you back to this courtroom; you should bring the completed Special Verdict with you. Question: Do you find that IHC has established by a preponderance of the evidence that Erik Jensen should have discovered by March 20, 2012 that he had an injury and that it was caused by the negligence of IHC? Yes No Signature of Foreperson Date 20