                This opinion is subject to revision before final
                     publication in the Pacific Reporter

                                2020 UT 57

                                   IN THE
      SUPREME COURT OF THE STATE OF UTAH

                        ERIK JENSEN,
                          Appellant,
                              v.
          IHC HEALTH SERVICES, INC. dba LDS HOSPITAL,
                          Appellee.

                            No. 20190026
                        Heard March 9, 2020
                        Filed August 17, 2020

                           On Direct Appeal

                    Third District, Salt Lake
                The Honorable Barry G. Lawrence
                        No. 150900735

                          Attorneys:
        Charles H. Thronson, Salt Lake City, for appellant
  Nathan W. Burbidge, Paul D. Van Komen, Patrick L. Tanner,
                 Salt Lake City, for appellee

  JUSTICE PETERSEN authored the opinion of the Court, in which
      CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
          JUSTICE HIMONAS, and JUSTICE PEARCE joined.


   JUSTICE PETERSEN, opinion of the Court:
                          INTRODUCTION
   ¶1 Erik Jensen suffered a cardiac arrest after undergoing
abdominal surgery at LDS Hospital. His heart did not beat for
over fifteen minutes, and he suffered brain damage as a result.
Just under five years later, he filed this medical malpractice claim
against LDS Hospital.
   ¶2 LDS Hospital requested a bifurcated trial to first
determine if Jensen had missed the applicable two-year statute of
limitations. The jury found that he had. And the trial court
entered judgment against Jensen.
                  JENSEN v. IHC HEALTH SERVICES
                       Opinion of the Court

    ¶3 Jensen appeals the judgment, arguing that the trial court
erred in its jury instruction defining the “discovery of legal
injury,” which starts the running of the statute of limitations in
medical malpractice actions.
    ¶4 We conclude the instructions as a whole were correct. We
affirm.
                         BACKGROUND
    ¶5 On March 26, 2010, Erik Jensen went to the emergency
room at LDS Hospital, an IHC Health Services facility, “with
complaints of abdominal pain that had been going on for a few
hours.” After undergoing a computed tomography,1 Jensen was
prepared for and sent to “the operating room for a diagnostic
laparoscopy, which [was] subsequently converted to an open
laparotomy because he had an unusual inflammatory reaction in
his abdomen.” After the surgery, Jensen remained in the hospital
to recover. He did “fairly well” for the first few days. But then he
experienced complications and was transferred to the intensive
care unit.
    ¶6 The hospital staff conducted a second surgery to ensure
there was nothing wrong with Jensen’s abdomen, after which he
returned to the intensive care unit. On the morning of April 1,
2010, Jensen experienced cardiac arrest and for “15 to 17 minutes”
his heart did not beat. As a result, Jensen suffered brain damage.
He was then transferred to a different IHC Health Services
facility.
    ¶7 On April 26, 2010, Jensen signed a power of attorney
authorizing his mother to act on his behalf. Jensen and his mother
met with Colin King, a medical malpractice attorney, to discuss a
potential malpractice action. As part of his investigation into the
potential claim, King requested Jensen’s medical records from
LDS Hospital and sent them to two different experts. After more
than a year of investigation, King declined to represent Jensen.
King advised Jensen’s mother that while LDS Hospital may have
provided substandard care in some respects, it would be difficult
to prove that this made any difference to Jensen's outcome.
   ¶8 After being turned away by King, Jensen’s mother met
with another law firm, Siegfried and Jensen, to discuss potential

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   1   Also known as a CT or CAT scan.


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                      Opinion of the Court

representation. Three days later, Siegfried and Jensen also
declined to represent Jensen. After her meetings with King and
Siegfried and Jensen, Jensen’s mother concluded that her son’s
injury “was not due to medical mistake or negligence.” She
instructed Siegfried and Jensen to destroy the medical records.
    ¶9 Jensen’s father met Charles Thronson, a medical
malpractice attorney, at a social event in March 2014. Jensen’s
father and Thronson discussed Jensen’s injury and Thronson
offered “to look at [Jensen’s] case but needed to get medical
records as soon as possible to avoid the running of the four-year
statute [of repose].” Thronson shared Jensen’s medical records
with an expert who concluded that the cardiac arrest was caused
by several breaches of the standard of care. Thronson called
Jensen to inform him of the reported breaches and offered to
represent him.
    ¶10 Jensen retained Thronson. And on March 21, 2014, Jensen
served the defendants with notice of his intent to commence an
action pursuant to Utah Code section 78B-3-412(1)(a). Jensen
received a certificate of compliance from the Division of
Occupational and Professional Licensing (DOPL), as was required
at the time under section 78B-3-412(1)(b),2 and he filed suit on
February 2, 2015.
    ¶11 In the trial court, LDS Hospital moved for summary
judgment, arguing that the four-year statute of repose had expired
before Jensen filed his complaint. Jensen responded that both the
statute of repose and the two-year statute of limitations should
have been tolled during the period of prelitigation review. The
trial court agreed and denied the motion.
   ¶12 LDS Hospital then moved for a bifurcated trial to first
determine only whether Jensen’s lawsuit was barred by the
applicable two-year statute of limitations. The trial court granted
the motion.
    ¶13 At trial, the parties advocated for different jury
instructions on the meaning of a plaintiff’s “discovery of legal


__________________________________________________________
    2 We have since held unconstitutional the requirement that a

plaintiff obtain a certificate of compliance from DOPL in order to
initiate a malpractice action against a health care provider. See
Vega v. Jordan Valley Med. Ctr., LP, 2019 UT 35, ¶ 24, 449 P.3d 31.


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                      Opinion of the Court

injury,” which triggers the running of the statute of limitations.
Ultimately, the trial court instructed the jury that
      [d]iscovery of a “legal injury” in this context occurs
      when a patient knows, or through reasonable
      diligence should know, each of the following:
      (1) that he sustained an injury; (2) the cause of the
      injury; and (3) that the injury may have been caused
      by a negligent act of a medical provider.
   ¶14 After a three-day trial, the jury found that Jensen
discovered or should have discovered his legal injury more than
two years before he commenced the action. Thus, the action was
barred by the statute of limitations, and the trial court entered
judgment against Jensen.
   ¶15 Jensen timely appealed. He challenges the correctness of
the trial court’s jury instruction on “discovery of legal injury.”
                   STANDARD OF REVIEW
    ¶16 We review “‘[a] trial court’s ruling concerning a jury
instruction . . . for correctness,’ without deference to its
interpretation of the law.” Arnold v. Grigsby (Arnold V), 2018 UT
14, ¶ 11, 417 P.3d 606 (citation omitted). “A new trial will not be
granted unless any error of the trial court was prejudicial,
meaning that it misadvised or misled the jury on the law.” Id.
(citation omitted).
                           ANALYSIS
   ¶17 Jensen argues that during the bifurcated trial, the trial
court erred in its instruction defining a plaintiff’s “discovery of
legal injury.” In a medical malpractice action, this discovery
commences the running of the statute of limitations.
    ¶18 Under the Utah Health Care Malpractice Act (Malpractice
Act), a malpractice action must be “commenced within two years
after the plaintiff or patient discovers, or through the use of
reasonable diligence should have discovered the injury.” UTAH
CODE § 78B-3-404(1). In Foil v. Ballinger, we interpreted the word
“injury” to encompass both “discovery of injury and the
negligence which resulted in the injury.” 601 P.2d 144, 148 (Utah
1979). We referred to this as a plaintiff’s “legal injury,” and we
held that “the statute begins to run when an injured person knows
or should know that he has suffered a legal injury.” Id. at 147
(emphasis added).



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    ¶19 Jensen argues that the trial court’s instruction was
erroneous for two reasons. First, with regard to the patient’s
discovery of negligence, Jensen argues that it was erroneous to
instruct the jury that a patient’s discovery occurs when the patient
knows “that the injury may have been caused by a negligent act of a
medical provider,” rather than “that the injury was caused by a
negligent act” of a medical provider. (Emphases added.)
    ¶20 Second, he argues that the trial court erroneously
instructed the jury that discovery of a legal injury occurs when a
patient “knows, or through reasonable diligence should know” each
of the elements of his legal injury, rather than “when a patient
discovers, or through reasonable diligence should discover” each
element.3 (Emphases added.)
          “May Have Been Caused” Versus “Was Caused”
    ¶21 Jensen’s first argument pertains to the third element of
the disputed instruction. He argues it was error to instruct the
jury that he had discovered the negligence element of his legal
injury when he knew “that the injury may have been caused by a
negligent act of a medical provider,” rather than when he knew
that the injury “was caused” by a negligent act of a medical
provider. (Emphases added.) Fundamentally, this argument
relates to how certain Jensen must have been that negligence
caused his injury before he is considered to have “discovered”
that component of his “legal injury.” Jensen argues that a
plaintiff’s knowledge that an injury “may have been caused” by
negligence is synonymous with a mere suspicion of negligence,
which we have said is legally insufficient. See Arnold v. Grigsby
(Arnold IV), 2012 UT 61, ¶ 17, 289 P.3d 449. Conversely, LDS
Hospital argues that this verbiage is an accurate reflection of our
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   3 Jensen makes two additional arguments that we do not

resolve. First, he argues that the knowledge of his mother and his
various attorneys should not be imputed to him. But LDS
Hospital asserts that he did not preserve this argument at trial,
and in fact stipulated to jury instructions explaining that the
knowledge of those individuals would be imputed to him. Jensen
does not dispute LDS Hospital’s representations. Second, Jensen
proposes what he views as an optimal jury instruction. But this is
not the instruction he proposed at trial, so this argument also is
not preserved. Accordingly, we do not further address either
argument.


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                       Opinion of the Court

case law. And it contends this is so even if the language is
substantively equivalent to a suspicion of negligence.
    ¶22 As Jensen correctly observes, we have used both
formulations in our case law. In Foil, we held that legal injury
“means discovery of injury and the negligence which resulted in
the injury.” 601 P.2d at 148 (emphasis added). We have used
similar language repeatedly. See, e.g., Arnold IV, 2012 UT 61, ¶ 15
(“[A] patient has discovered her injury only when she has
discovered her ‘legal injury—that is, both the fact of injury and
that it resulted from negligence.’” (emphasis added) (citation
omitted)); Collins v. Wilson, 1999 UT 56, ¶ 19, 984 P.2d 960 (“[T]he
two-year statute of limitations period commences to run only
when the injured person knew or should have known of an injury
and that the injury was caused by a negligent act.” (emphasis
added)).
    ¶23 But we have also used more equivocal language,
sometimes in the same case. See, e.g., Arnold IV, 2012 UT 61, ¶ 18
(“All that is necessary is that the plaintiff be aware of facts that
would lead an ordinary person, using reasonable diligence, to
conclude that a claim for negligence may exist.” (emphasis
added)); Daniels v. Gamma W. Brachytherapy, LLC, 2009 UT 66,
¶ 31, 221 P.3d 256 (“[T]he statute of limitations did not begin to
run until [the plaintiff] discovered that the Defendants’ treatment
and care might have been negligent and thus might have caused his
injuries.” (emphases added)); Collins, 1999 UT 56, ¶ 19
(“[D]iscovery of legal injury, therefore, encompasses both
awareness of physical injury and knowledge that the injury is or
may be attributable to negligence.” (quoting Chapman v. Primary
Children’s Hosp., 784 P.2d 1181, 1184 (Utah 1989) abrogated on other
grounds by Bright v. Sorensen, 2020 UT 18, 463 P.3d 626)).
    ¶24 Accordingly, our analysis of the requisite level of
certainty in this context has not hinged on the specific words
Jensen identifies. However, we have addressed the substance of
this question a number of times. We have explained that absolute
or “certain knowledge” of negligence is not required. Arnold IV,
2012 UT 61, ¶ 18. But we have also clarified that “without more,
neither (1) the existence of symptoms, (2) a suspicion that a
doctor’s negligence caused medical complications, nor (3) the
commencement of an investigation is sufficient to trigger the
statute of limitations.” Id. ¶ 15.
   ¶25 We have compared the discovery rule in the Malpractice
Act with statutory discovery rules in general, explaining that

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under a statutory discovery rule, the limitations period begins to
run “when a plaintiff first has actual or constructive knowledge of
the relevant facts forming the basis of the cause of action.” Id. ¶ 18
(citation omitted). In a medical malpractice action, this refers to
the moment when a patient first has knowledge or constructive
knowledge of the facts underlying their malpractice claim—in
other words, their legal injury: (1) the physical injury, (2) the
causal event of the injury, and (3) that negligence (a breach in the
standard of care) caused the injury. See Daniels, 2009 UT 66, ¶¶ 27,
29.
    ¶26 With regard to the third element—negligence—we have
explained that the level of knowledge sufficient to trigger the
limitations period is objective, not subjective. A defendant must
establish the moment when the plaintiff discovered or should
have discovered through reasonable diligence “facts that would
lead an ordinary person . . . to conclude that a claim for negligence
may exist.” Arnold IV, 2012 UT 61, ¶¶ 18, 21 (citation omitted).
   ¶27 We conclude that the trial court’s jury instructions as a
whole correctly conveyed the law regarding when a plaintiff
discovers negligence for purposes of triggering the statute of
limitations. “[W]e look at the jury instructions in their entirety and
will affirm when the instructions taken as a whole fairly instruct
the jury on the law applicable to the case.” Arnold V, 2018 UT 14,
¶ 40, 417 P.3d 606 (citation omitted).
    ¶28 While we have made clear that a patient’s subjective
suspicion of negligence is not legally sufficient to show discovery
of a legal injury, we conclude that the trial court’s jury
instructions did not give such an impression even though they
employed the “may have been caused” formulation. The
instructions here stated,
       Discovery of Legal Injury Defined
              [Jensen] was required to have filed a medical
       malpractice claim within two years from the date
       that he discovered or should have discovered his
       “legal injury.”
               Discovery of a “legal injury” in this context
       occurs when a patient knows, or through reasonable
       diligence should know, each of the following:
       (1) that he sustained an injury; (2) the cause of the
       injury; and (3) that the injury may have been caused
       by a negligent act of a medical provider.

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                       Opinion of the Court

       ...
       Negligence Element
              In evaluating the third element of legal injury,
       you must weigh all of the facts and circumstances to
       determine whether the facts here were sufficient to
       place (sic) an ordinary person, exercising reasonable
       diligence, to conclude that medical negligence may
       have occurred.
               In making this determination you should note
       that, without more, neither the existence of
       symptoms, a patient’s suspicions of negligence, nor
       the commencement of an investigation, is sufficient
       to inform a patient that a claim for negligence may
       exist. However, the law does not require a patient to
       have actual or certain knowledge of negligence.4
Jensen takes issue with a particular phrase within a specific jury
instruction. But we conclude that, taken as a whole, the trial
court’s instructions accurately described the relevant law—
specifically that a plaintiff has discovered negligence for purposes
of the “discovery of legal injury” when the plaintiff first discovers
or in the exercise of reasonable diligence should have discovered
facts sufficient to lead an ordinary person to conclude that the


__________________________________________________________
    4 At oral argument, LDS Hospital argued that it would be

improper for a trial court to define “negligence” for the jury in a
bifurcated trial focusing only on the statute of limitations, because
it could lead the jury to assess the merits of the case. While Jensen
has not raised this as a failing of the instructions here, we briefly
address LDS Hospital’s argument. We do not see why a definition
of negligence would lead to a trial on the merits, assuming the
instructions adequately explained that the question before the jury
was only whether the plaintiff filed suit within the two-year
statute of limitations. The instruction on discovery of a legal
injury asks the jury to determine whether the plaintiff discovered
facts that would lead an ordinary person to conclude that the
injury was (or may have been) due to negligence. Negligence is a
legal term. We disagree with LDS Hospital’s assertion that the
jury should be expected to apply this instruction without being
informed of the meaning of negligence.


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injury was or may have been caused by negligence.5 See Arnold IV,
2012 UT 61, ¶¶ 15, 18; Collins, 1999 UT 56, ¶ 19.
                    “Knows” Versus “Discovers”
    ¶29 Jensen’s second argument is that the trial court erred in
instructing the jury that discovery of a legal injury occurs when a
patient “knows, or through reasonable diligence should know . . .
(1) that he sustained an injury; (2) the cause of the injury; and
(3) that the injury may have been caused by a negligent act of a
medical provider.” (Emphases added.) He argues that the
instruction should have used the word “discover” in place of
“know.”
    ¶30 As with Jensen’s first argument, we have used both
“knows” and “discovers” in our case law, and we have used them
interchangeably. For example, in Foil, we held that the term
“discovery of injury” in the Malpractice Act means “discovery of
injury and the negligence which resulted in the injury.” 601 P.2d
at 148 (emphasis added). But we also said that the statute begins
to run “when an injured person knows or should know that he has
suffered a legal injury.” Id. at 147 (emphasis added); see also Arnold
IV, 2012 UT 61, ¶ 33 (“[A] defendant can show that the claim is
barred . . . by demonstrating that more than two years elapsed
between the date the plaintiff discovered or should have discovered
that the course of treatment was negligent and the date she filed
her claim.” (emphasis added)); Daniels, 2009 UT 66, ¶ 25 (“[T]he
determination of when a plaintiff is aware of the causal fact turns
on a jury’s determination of when a plaintiff acting with
reasonable diligence discovered or should have discovered which event
might have caused his injury.” (emphasis added)); Collins, 1999
UT 56, ¶ 19 (“[T]he two-year statute of limitations period
commences to run only when the injured person knew or should
have known of an injury and that the injury was caused by a
negligent act.” (emphasis added)); Brower v. Brown, 744 P.2d 1337,
1338–39 (Utah 1987) (“This Court has defined discovery of the
injury as knowledge of a legal injury; that is, the plaintiff must know
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    5 This does not mean that it would have been erroneous if the

court had used the “was caused” terminology. We have used that
formulation throughout our case law. And so long as a set of
instructions correctly explain the substantive law applicable to the
discovery of a legal injury, the instructions would be legally
correct.


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                       Opinion of the Court

of the injury and of the negligence which caused the injury.”
(emphases added)); Deschamps v. Pulley, 784 P.2d 471, 475 (Utah
Ct. App. 1989) (holding that the plaintiff knew or should have known
her mother’s injury was a result of medical negligence more than
two years before filing an action). Beyond these two words, we
have also employed synonymous terms such as “reveals,” Arnold
IV, 2012 UT 61, ¶ 20 and becomes “aware,” Daniels, 2009 UT 66,
¶ 30; Foil, 601 P.2d at 147.
    ¶31 Importantly, Jensen has not explained how the use of
“knows” instead of “discovers” renders the trial court’s
instructions erroneous. He argues only that “discovers” is
preferable because it is the word used in the Malpractice Act. See
UTAH CODE § 78B-3-404(1). And he asserts it is more precise than
“knows” in this context.
   ¶32 We acknowledge that there are some benefits to using
“discover” in place of “know” in this context. As Jensen notes, it is
the language used in the statute. Id. (providing that an action
“shall be commenced within two years after the plaintiff or
patient discovers, or through the use of reasonable diligence
should have discovered the injury”).
    ¶33 And it does more precisely communicate that the jury
must determine the moment in time “when a plaintiff first has
actual or constructive knowledge of the relevant facts forming the
basis of the cause of action.” Arnold IV, 2012 UT 61, ¶ 18 (citation
omitted). “Know” means “to have understanding of” or “to be
aware of the truth or factuality of.” Know, Merriam-Webster
Online              Dictionary,             https://www.merriam-
webster.com/dictionary/know (last visited July 27, 2020).
Whereas “discover” is defined as “to make known” or “to obtain
sight or knowledge of for the first time.” Discover, Merriam-
Webster       Online       Dictionary,      https://www.merriam-
webster.com/dictionary/discover (last visited July 27, 2020). We
agree that “discover” connotes learning new information for the
first time more precisely than does “know.”
   ¶34 However, while we appreciate Jensen’s point, he fails to
explain why the trial court’s use of “know” caused the disputed
jury instruction to be legally incorrect. And in light of our use of
both words interchangeably and their similar meanings, we see no
reason to conclude that it was.




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                        CONCLUSION
    ¶35 When viewed as a whole, the trial court’s jury
instructions correctly stated the law relevant to discovery of a
legal injury. We affirm.




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