Utah doctors could face more liability lawsuits

A Utah Supreme Court opinion could open the door to a rush on the courts and expose physicians to liability they were not expecting.

If a patient who can prove a current injury resulted from negligence ever wants to collect damages for future medical problems that could arise, he or she must ask for the money in the initial lawsuit, the state's high court said in its November decision in Medved v. Glenn.

The opinion reinforces Utah's one-action rule, said R. Chet Loftis, general counsel for the Utah Medical Assn. Under the rule, causes of action cannot be split, leaving plaintiffs with one chance to bring claims for a current injury and any future related damages at the same time. After the statute of limitations runs out, the plaintiff won't be allowed to sue again for that injury. Previously, patients could sue only for future damages after an injury reoccurred.

Although lawyers cannot estimate how many new claims may ensue, they do expect more filings against physicians as patients who have not sought future damages look to file cases before the statute of limitations runs out. This ruling means that in the short term, physicians could face more medical liability suits, as "the statute of limitations pushes cases to be brought now," Loftis said.

But Loftis added that the ruling is still limited, because patients must show that they have a current injury that resulted from physician negligence. The more speculative a claim is, the more difficult it might be to seek damages, he said.

"Both sides will have benefits in arguing their cases," Loftis said.

Meanwhile, plaintiff attorneys are generally pleased with the decision. There is now an urgency to evaluate claims that were not brought under the previous court interpretation.

"These are not easy cases in the first place," said Michael Richman, an attorney with the Murray, Utah-based firm Siegfried & Jensen, which represents plaintiff Jamie Medved in the lawsuit the Utah Supreme Court ruled upon. "Lawyers sitting on cases had better take a look at them right now before they may expire."

Medved's case involved a breast cancer diagnosis. Although the ruling is not exclusive to breast cancer patients, attorneys agree that because of the prevalence and nature of the disease, the ruling likely will have a heavier impact on those claims.

A new interpretation

The Utah Supreme Court decision reversed rulings at both the trial and appellate level in the case of Medved, a cancer patient seeking actual and possible future damages stemming from an alleged misdiagnosis of her breast cancer. Those rulings were based on a 1996 court decision, Seale v. Gowans, which lower Utah courts historically relied upon to throw out cases against doctors in which patients tried to bring lawsuits for the possibility of future risk if they hadn't actually had a recurrence of the injury.

In the Medved opinion, the Supreme Court spelled out its original intentions in Seale, stating that the widely held interpretation was applicable only in cases where a plaintiff is trying to sue for future damages without sustaining a current injury upon which to base a claim. The court did not intend for cases for future damages to be dismissed if a plaintiff could show a present negligent injury.

As a result, the court extended the two-year statute of limitations for "individuals who may have delayed filing suit due to the widely accepted, but erroneous interpretation of our holding in Seale," Justice Jill N. Parrish wrote.

The two-year period began on the Nov. 15 opinion date.

The new ruling stems from Medved's lawsuit accusing gynecologist C. Joseph Glenn, MD, and plastic surgeon Blayne L. Hirsche, MD, of malpractice for failing to diagnose Medved's breast cancer. She alleges she was forced to undergo more severe treatment than would have been necessary. She also alleges she is more likely to encounter future problems because of the misdiagnosis.

When she first discovered a lump in her breast in 1997, Medved visited Dr. Glenn, who she said failed to order a mammogram even after he noticed abnormalities. In 1998, Medved consulted Dr. Hirsche about removing the lump and about a breast augmentation, according to court documents. Dr. Hirsche proceeded with the augmentation surgery without removing the lump that turned out to be malignant, the documents show.

The physicians' attorneys were not available for comment.

Medved filed her lawsuit in 2001, but the lower courts dismissed it, relying on the Seale decision. Her attorneys pushed the lawsuit to the high court, arguing that the law should be interpreted differently than it traditionally had been.

In the Seale case, Beverley Seale, also a breast cancer patient, filed suit against radiologist Donald Gowans, MD, in 1996 when she experienced a relapse three years after her diagnosis. Seale sought damages solely for a heightened risk of recurrence, alleging that the recurrence resulted from a misdiagnosis.

In that instance, the court ruled that the increased risk alone was not sufficient for a cause of action and that there was no proof of legal injury.

Unlike Seale, the Nov. 15 opinion said Medved could pursue her cause of action for damages relating to a possible increased risk of recurrence because she was able to plead a current legal injury at the same time. Her case now will go back to trial court.