Lee v. Williams

2018 UT App 54

THE UTAH COURT OF APPEALS

KYLIE ANN BEDDOES LEE,
Appellant,
v.
KENNETH L. WILLIAMS AND MOAB FAMILY MEDICINE PC,
Appellees.

Amended Opinion 1
No. 20160198-CA
Filed March 29, 2018

Seventh District Court, Moab Department
The Honorable Lyle R. Anderson
No. 130700019

Tyler S. Young and Allen K. Young, Attorneys
for Appellant
Catherine M. Larson and Kathleen J. Abke, Attorneys
for Appellees

JUDGE RYAN M. HARRIS authored this Amended Opinion, in
which JUDGES KATE A. TOOMEY and JILL M. POHLMAN concurred.

HARRIS, Judge:

¶1 During her first pregnancy, Kylie Lee sustained a
permanent injury while under the care of Dr. Kenneth Williams.
This injury occurred because Lee did not receive a particular

1. This Amended Opinion replaces the Opinion in Case No.
20160198-CA that was issued on January 25, 2018. After our
original opinion issued, Defendants filed a petition for rehearing,
and we called for a response. Without changing any of our
conclusions in the case, we grant the petition for the limited
purpose of clarifying Nurse’s employment status, as reflected in
revisions to Paragraph 20 herein.
 Lee v. Williams

medication during her pregnancy that almost certainly would
have prevented the injury. As a result of the injury, all of Lee’s
future pregnancies now carry a substantial risk of birth defects
or miscarriage. In fact, Lee’s subsequent pregnancy came with
serious complications. After the birth of her second child, Lee
sued Williams for negligence.

¶2 Williams defended the case, in part, on statute of
limitations grounds. During pretrial proceedings, the trial court
narrowed the issues to be tried by ruling on summary judgment
that, while genuine issues of material fact precluded a summary
ruling regarding when Lee learned that she was injured, Lee
knew no later than March 2009 that Williams may have been
negligent. A few months later, after a bifurcated trial, the issue of
when Lee discovered her injury was submitted to a jury. The
jury found that Lee knew that she “might have sustained an
injury” prior to September 2010, more than two years before she
filed her complaint. The court then dismissed Lee’s lawsuit on
the grounds that it was not timely filed.

¶3 Lee now appeals, and asks us to consider two main
arguments. First, she contends that the trial court should not
have determined, on summary judgment, that she knew of
Williams’s negligence by March 2009. Second, Lee contends that
the trial court made several errors during the trial, including an
error regarding a jury instruction and an erroneous decision to
exclude certain evidence. We disagree with Lee’s first argument,
and conclude that the trial court’s summary judgment ruling
was sound. We agree, in large part, with Lee’s second argument,
however, and conclude that the trial court committed three
errors in the course of the trial, and that at least two of these
errors were not harmless. Accordingly, we affirm in part and
reverse in part, and remand the case for a new trial.

20160198-CA 2 2018 UT App 54
 Lee v. Williams

BACKGROUND

Medical History

¶4 In 2008, Lee became pregnant and began receiving
ongoing medical care from Williams, an employee of Moab
Family Medicine, PC. During the course of this treatment,
Williams determined that Lee’s blood was “Type A” and “Rh-
negative.”

¶5 Human blood is categorized into types, denoted by a
letter or letters (for example, Type A, Type AB, Type O). In
addition, human blood is further categorized, in a binary way,
relative to its “Rh-factor.” A person’s blood is “Rh-negative” if it
does not have a specific particle (called the “D particle”) on the
surface of its red blood cells. Blood that has the D particle is “Rh-
positive.” When describing blood type, these terms are often
shortened to simply “negative” and “positive,” and are often
combined with the letter category, so that a person’s blood is
referred to, for instance, as “A-negative” or “O-positive.”
Williams testified at trial that mixing blood of different types
and Rh-factors can cause medical complications, and that
concerns about such complications sometimes arise during
pregnancy, because a pregnant woman may have a different
blood type and Rh-factor than her fetus.

¶6 The medical complication pertinent to this case arises
when a pregnant woman with Rh-negative blood mixes that
blood with an Rh-positive fetus. In that circumstance, Williams
testified that the woman may become “Rh-sensitized,” which
causes her body to react to the fetus’s Rh-positive blood as if it is
an infection or a foreign substance. Once a woman is Rh-
sensitized, she is permanently Rh-sensitized. An Rh-sensitized
woman has no symptoms until she has a fetus with Rh-positive
blood, at which point the woman’s body may break down the
fetus’s blood cells, potentially causing severe harm to the fetus
and sometimes even resulting in a miscarriage.

20160198-CA 3 2018 UT App 54
 Lee v. Williams

¶7 In this case, as it turned out, Lee’s blood type was Rh-
negative and her first baby’s blood type was Rh-positive,
creating a risk for Rh-sensitization if their blood mixed. To
protect against Rh-sensitization, doctors can administer an
injectable medication called RhoGAM, which Williams testified
significantly reduces the risk of Rh-sensitization. RhoGAM is
preventative; that is, it can only prevent Rh-sensitization, and
cannot undo the sensitization once it has occurred. Accordingly,
RhoGAM has no beneficial effect if the woman who receives it is
already Rh-sensitized. In cases like Lee’s, where a pregnant
woman is Rh-negative and her fetus is Rh-positive, a doctor
would typically order that she receive RhoGAM twice, once
between 26 and 28 weeks gestation, and once upon delivery.

¶8 At the outset of her first pregnancy, Lee was not yet Rh-
sensitized, and so RhoGAM treatments to prevent sensitization
would have been appropriate. While Williams maintains both
(a) that he informed Lee that she needed a RhoGAM injection at
26–28 weeks and (b) that he ordered such an injection, there is no
evidence to support these contentions in the contemporaneously
created medical records. In any case, it is undisputed that Lee
did not receive a RhoGAM injection at 26–28 weeks, or at any
other time prior to delivery of her first child.

¶9 Lee gave birth to her first child on December 30, 2008.
Williams would later testify that the infant suffered
complications associated with Rh-positive infants born to Rh-
sensitized mothers, prompting him to suspect that Lee had
become Rh-sensitized. Accordingly, Williams ordered tests to
determine whether Lee was Rh-sensitized. Despite Williams’s
suspicions that Lee may already have been Rh-sensitized, Lee
received a RhoGAM injection—her first—after the baby’s birth.
Lee testified at trial that the nurse who gave her the injection
indicated that Lee needed it because she was Rh-negative and
would need additional injections during every subsequent

20160198-CA 4 2018 UT App 54
 Lee v. Williams

pregnancy. As noted previously, RhoGAM has no beneficial
effects for women who are already Rh-sensitized.

¶10 Williams maintains that, on December 31, 2008, the day
after the first child’s birth, he informed Lee that she had become
Rh-sensitized and that she would potentially suffer
complications and miscarriages in future pregnancies as a result.
However, there is no confirmation of this in any medical record,
and Williams acknowledges that, prior to January 5, 2009, he had
not yet received lab results confirming that Lee was Rh-
sensitized; he characterized his misgivings that Lee may have
been sensitized as merely a “suspicion” prior to that date. Also,
there is no evidence in any of Williams’s records that Lee was
informed of her sensitization after the lab results were received
on January 5, 2009, and Rh-sensitization is not mentioned in the
records for any of the ten doctor’s visits she had after the test.

¶11 A few weeks later, in March 2009, Lee conducted some
independent Internet searches regarding RhoGAM. Lee
maintains that she engaged in these searches because she
remembered the nurse giving her a RhoGAM injection following
her delivery and became curious about what that meant. During
her Internet searches, Lee learned that RhoGAM was meant to
prevent Rh-sensitization. Lee claims that, at this time, she also
learned for the first time that she should have received a
RhoGAM injection during her pregnancy. Lee maintains,
however, that because she received a RhoGAM injection after
delivering her first child, she believed she was not Rh-sensitized
at that point. Further, Williams later noted that Lee would have
learned from her research that her chances of becoming Rh-
sensitized—even without the RhoGAM injection—were slim,
something on the order of 1 or 2 percent. Other than these March
2009 Internet searches, there is no evidence in the record that Lee
conducted any further research into Rh-sensitization.

20160198-CA 5 2018 UT App 54
 Lee v. Williams

¶12 In 2011, Lee became pregnant again. During this
pregnancy, Lee received treatment from a second doctor. Lee
never told the second doctor that she knew she was Rh-
sensitized, or that she was wary of potential problems associated
with Rh-sensitization. This time, Lee’s child was born with
serious complications that required blood transfusions and were
consistent with injuries caused by a mother’s Rh-sensitization.
At this point, Lee claims, the second doctor informed her she
had become Rh-sensitized.

¶13 Subsequently, on September 27, 2012, Lee filed an action
against Williams and Moab Family Medicine (collectively,
Defendants), alleging that Williams negligently failed to order
that she receive a RhoGAM injection during her 2008 pregnancy,
and that this negligence caused her to become Rh-sensitized.

Pre-Trial Proceedings

¶14 In response to the lawsuit, Defendants moved for
summary judgment, alleging that Lee’s claims were untimely
under the applicable two-year statute of limitations. Defendants
pointed out that “[t]he statute of limitations [for medical
malpractice] begins to run when a person knows or should have
known that they have suffered an injury” attributable to
negligence. Defendants argued that Lee knew or should have
known about both her injury and Williams’s alleged negligence
in causing it “by March 2009” when she conducted Internet
searches for “RhoGAM.” After briefing and oral argument, the
trial court partially granted the motion, and partially denied it.
The court determined as a matter of law that Lee knew about
Williams’s alleged negligence no later than March 2009, when
she learned that she should have been—but was not—given
RhoGAM during her pregnancy. However, the court also ruled
that it could not determine, on summary judgment, whether Lee
also knew at that point that she had been injured (Rh-sensitized).

20160198-CA 6 2018 UT App 54
 Lee v. Williams

¶15 Following this ruling, Defendants asked the court to
bifurcate the trial, with the first phase devoted entirely to the
question of whether Lee’s complaint was timely filed. In this first
phase, the jury would be asked to determine whether Lee knew
or should have known that she was injured by Williams’s
alleged negligence prior to September 2010 (two years before she
filed suit). Only if the jury found Lee’s complaint to be timely
would the trial proceed to a second stage in which the jury
would determine whether Williams had been negligent and, if
so, whether that negligence had caused Lee to sustain harm. The
court granted Defendants’ motion and bifurcated the trial.

¶16 At a pre-trial proceeding immediately before the first
phase of the trial, the court determined that it would not permit
Lee—at least not during the first phase of the trial—to introduce
a “discharge summary” medical record created by Williams on
January 1, 2009, that stated that Lee “did miss her 26-week
RhoGAM, which was quite unfortunate and despite having been
ordered.” The court also determined that it would not permit
Lee to introduce other medical records maintained by Williams,
none of which contained any order for a RhoGAM injection and
therefore contradicted the aforementioned discharge summary.

¶17 Lee objected to the exclusion of this evidence, arguing
that, while it was certainly relevant to the second-phase
negligence question, it was also relevant to the first-phase
question of when she knew she was injured by not receiving
RhoGAM. In response, the court made several statements
indicating it believed the evidence was irrelevant to the first-
phase discovery issues. It ultimately conceded, however, that the
evidence had at least some “probative value” but would
nevertheless be excluded because of its “potential of confusing
the jury about whether they’re supposed to decide what
happened with regard to [the RhoGAM injection] that should
have been given during pregnancy.”

20160198-CA 7 2018 UT App 54
 Lee v. Williams

¶18 Thereafter, the court instructed the parties to submit
proposed jury instructions for the trial’s first phase. Defendants
submitted an instruction stating that “‘[d]iscovery’ of an injury
from medical malpractice occurs when an ordinary person
through reasonable diligence knows or should know that she
might have sustained an injury” (emphasis added). Lee objected
to this proposed instruction, arguing that the inclusion of the
words “might have” misstated the law. Lee argued that the
instruction should instead indicate that discovery of a legal
injury occurs when both the injury and the negligence that
caused it have been discovered, as opposed to when the injured
person knows she “might have” been injured. Ultimately, the
trial court overruled Lee’s objection, and agreed to give
Defendants’ requested instruction. In addition, the court agreed
to present the jury with a special verdict form that asked, “Do
you find that Defendants have established, by a preponderance
of the evidence, that Kylie Lee knew or should have known, by
September 27, 2010, that she might have suffered an injury?”
(Emphasis added.)

Trial

¶19 At trial, during jury selection, some issues arose with one
of the potential jurors (Juror 26). First, Juror 26 stated that he had
once been a patient at Moab Family Medicine, Williams’s
employer and co-defendant, although he had not been a patient
of Williams. Second, he indicated that his wife had once been a
patient of Williams himself. Third, he indicated that he had
known of Williams and his wife for several years, although he
did not know them personally. Fourth, Juror 26 indicated that he
was involved in a scouting program and one of the boys
involved in that program was the son of one of Williams’s
nurses (Nurse), who was identified as a trial witness. The trial
court allowed Lee’s attorney, without apparent restriction, to ask
Juror 26 follow-up questions about these disclosures. After
asking these questions, Lee raised a challenge to strike Juror 26

20160198-CA 8 2018 UT App 54
 Lee v. Williams

for cause, expressing concern that Juror 26’s acquaintance with
Williams and personal relationship with Nurse’s son would bias
him in favor of Defendants. In response, the trial court asked
Juror 26 if he would “be affected if [Nurse] testifie[d] as a
witness” in the case. When Juror 26 stated that he would not be,
the court denied Lee’s challenge for cause. Lee used all of her
peremptory challenges during jury selection, and Juror 26 was
seated on the jury.

¶20 During the trial, Williams called Nurse as a witness for
the purpose of testifying generally about Williams’s habits as a
medical practitioner. Nurse testified that, although she was not
employed by Williams or by Moab Family Medicine, she
frequently worked with Williams, and that as a matter of course
Williams thoroughly explained medical injuries to his patients.
Nurse was not asked any questions about Williams’s care of Lee
specifically. During the course of Nurse’s testimony, Lee’s
counsel formed a suspicion that Nurse had discussed her
testimony with Williams’s counsel, and asked to examine Nurse
on that basis. During this examination, which occurred outside
the jury’s presence, Nurse admitted that Williams’s counsel
contacted her the night before she testified, and that she
discussed the substance of her testimony with Williams’s
counsel. Lee objected to Nurse’s testimony and asked that it be
stricken, arguing that Nurse was one of Lee’s “treating medical
providers” and that defense counsel could not have ex parte
communications with such providers. The trial court denied the
motion.

¶21 During the trial, Lee testified that Williams never told her
she was Rh-sensitized. In contrast, Williams testified that he had,
in fact, informed Lee of her injury the day after her first child
was born.

¶22 At the conclusion of the evidence, the trial court
instructed the jury as follows:

20160198-CA 9 2018 UT App 54
 Lee v. Williams

The issue for you to decide is whether Kylie Lee
filed her claim more than two years after she
should have discovered her legal injury. You shall
consider and weigh all the evidence to determine
whether Kylie Lee by the use of reasonable
diligence had actual or constructive facts by which
she knew or should have known, prior to
September 27, 2010, that she might have suffered an
injury. If the greater weight of the evidence
supports the defense of Dr. Williams and Moab
Family Medicine on this issue, Kylie Lee’s claim
against them is time barred, and your verdict is for
Dr. Williams and Moab Family Medicine. If,
however, the greater weight of the evidence does
not support the defense of Dr. Williams and Moab
Family Medicine on this issue, your verdict should
be for Kylie Lee.

(Emphasis added.) And:

“Discovery” of an injury from medical malpractice
occurs when an ordinary person through
reasonable diligence knows or should know that
she might have sustained an injury.

(Emphasis added.) In addition, the trial court provided the jury a
special verdict form that asked them to answer only one
question: “Do you find that Defendants have established, by a
preponderance of the evidence, that Kylie Lee knew or should
have known, by September 27, 2010, that she might have suffered
an injury?” (Emphasis added.)

¶23 After deliberation, the jury answered the question in the
affirmative, and found that Lee “knew or should have known,
by September 27, 2010, that she might have suffered an injury.”
Based on this verdict, the trial court determined that Lee’s

20160198-CA 10 2018 UT App 54
 Lee v. Williams

complaint against Defendants was time-barred, and therefore
dismissed her complaint with prejudice.

ISSUES AND STANDARDS OF REVIEW

¶24 Lee raises two main arguments on appeal. First, she
contends that the trial court erred when it determined, as a
matter of law on summary judgment, that she knew of
Williams’s potential negligence “by March 2009.” We review a
trial court’s decision on a summary judgment motion for
correctness, analyzing “the facts and all reasonable inferences
drawn therefrom in the light most favorable to the nonmoving
party.” DOIT, Inc. v. Touche, Ross & Co., 926 P.2d 835, 841 (Utah
1996) (citation and internal quotation marks omitted).

¶25 Second, Lee contends that the trial court committed four
errors during its management of the trial. Lee first argues that
the trial court erred by incorrectly instructing the jury about
when an injury is “discovered.” “Whether a given jury
instruction correctly states the law is reviewable under a
correction of error standard, with no particular deference given
to the district court’s ruling.” State v. Dozah, 2016 UT App 13,
¶ 13, 368 P.3d 863.

¶26 Next, Lee contends that the trial court erred by refusing to
dismiss Juror 26 for cause. We review “the propriety of a denial
or grant of a challenge for cause” for abuse of discretion, looking
to “the entire voir dire exchange with the challenged juror.” State
v. Maestas, 2012 UT 46, ¶ 41, 299 P.3d 892 (citation and internal
quotation marks omitted).

¶27 Lee also argues that the trial court erred in excluding
certain items of evidence, specifically: (a) Williams’s discharge
summary stating that he had ordered a RhoGAM injection for
Lee during her pregnancy; and (b) Williams’s other medical
records that gave no indication that a RhoGAM injection had

20160198-CA 11 2018 UT App 54
 Lee v. Williams

ever been ordered. We review the admission or exclusion of
evidence for abuse of discretion. State v. Ramirez, 924 P.2d 366,
369 (Utah Ct. App. 1996). Even if we determine that evidence
was excluded in error, we will not disturb the outcome of the
trial unless “it is reasonably likely a different outcome would
result with the introduction of the evidence and confidence in
the verdict is undermined.” State v. Colwell, 2000 UT 8, ¶ 26, 994
P.2d 177.

¶28 Finally, Lee contends that the trial court erred when it
denied her motion regarding defense counsel’s ex parte
communication with Nurse. “The permissibility of defense
counsel’s ex parte meetings with a plaintiff’s treating physicians
requires interpretation of” Utah appellate court case law. Wilson
v. IHC Hospitals, Inc., 2012 UT 43, ¶ 24, 289 P.3d 369. Further,
“[t]he interpretation of precedent is a question of law that we
review for correctness.” Id. (citation and internal quotation
marks omitted).

ANALYSIS

I. The Summary Judgment Ruling

¶29 Lee first contends that the trial court erred when it
determined on summary judgment that she knew of Williams’s
negligence no later than March 2009, even if she may not yet
have known that she had been injured by any such negligence.

¶30 Under the Utah Health Care Malpractice Act (the
Malpractice Act), “[a] malpractice action against a health care
provider shall be commenced within two years after the plaintiff
or patient discovers, or through the use of reasonable diligence
should have discovered the [legal] injury, whichever first
occurs.” Utah Code Ann. § 78B-3-404(1) (LexisNexis 2012). In
interpreting the Malpractice Act, our supreme court has stated
that “the statute of limitations begins when exercising

20160198-CA 12 2018 UT App 54
 Lee v. Williams

[reasonable] diligence a patient should have discovered” both (1)
“his injury” and (2) “its possible negligent cause.” Daniels v.
Gamma West Brachytherapy, LLC, 2009 UT 66, ¶ 31, 221 P.3d 256.
In this case, the trial court determined, as a matter of law, that
Lee knew, no later than March 2009, that Williams was
negligent, and that therefore the second requirement was met as
a matter of law, even if the first one might not have been.

¶31 The trial court based this ruling on two facts that it
considered undisputed: (1) that Lee knew, from her Internet
searches in March 2009, that she should have been given a
RhoGAM shot during 26–28 weeks gestation; and (2) that Lee
knew that she had not in fact been given any such shot. From
these two facts, the trial court reasoned that, as a matter of law,
Lee “clearly knew that [Dr.] Williams might have been
negligent” by no later than March 2009.

¶32 This reasoning is unassailable, and Lee wisely does not
directly assail it. Instead, she argues that, as a legal matter, a
person cannot be deemed to have discovered “negligence”
unless and until that person also discovers that they have been
injured as a result of that negligence. We disagree.

¶33 The two elements of a medical malpractice action against
a health care provider do not have to be discovered at the same
time. Certainly, as a factual matter, simultaneous discovery of
injury and negligence can occur—for example, a patient who
discovers that her doctor mistakenly has operated on the wrong
limb will immediately understand that she has been injured by
negligence. But the two elements certainly can be discovered
independently from one another. In Roth v. Joseph, 2010 UT App
332, 244 P.3d 391, for instance, the patient immediately knew
that he had been injured, but did not realize until some time
thereafter that his injury may have been caused by negligence.
See id. ¶¶ 26–27. There, we held that the statute of limitations
had not begun to run until the patient discovered the possibility

20160198-CA 13 2018 UT App 54
 Lee v. Williams

of negligence, the final necessary element for his claim. Id. ¶ 27;
see also Daniels, 2009 UT 66, ¶ 31 (holding that the statute of
limitations does not begin to run until a plaintiff discovers both
“his injury and its possible negligent cause”).

¶34 While it is possible for a plaintiff to discover an injury
before discovering the possibility that it was negligently caused,
the opposite factual scenario can also occur, especially in
medical situations where injuries are at least temporarily
asymptomatic. Not all negligent actions lead to injury, and a
plaintiff may very well learn that her health care provider acted
negligently long before she learns that any injury resulted from
that negligence.

¶35 Indeed, our supreme court previously contemplated that
precise scenario in Seale v. Gowans, 923 P.2d 1361 (Utah 1996). In
that case, a plaintiff alleged that her doctor was negligent when
he failed to discover a cancerous mass in her breast during a
routine mammogram. Id. at 1362. Although that negligence did
not lead to immediate injury, the plaintiff later came to believe
that the doctor’s failure to detect the cancerous mass in her
breast contributed at least in part to the recurrence of her cancer
some years later. Id. At trial, the doctor presented the
Malpractice Act’s statute of limitations 2 as a defense, arguing
that the plaintiff discovered her legal injury when she learned
that he had not correctly diagnosed her cancer after her first
mammogram. Id. On appeal, our supreme court noted that the
plaintiff had discovered her doctor’s negligence when she
learned that he had discovered the mass in her breast during her
first mammogram but had failed to diagnose it as cancer, but

2. At the time, the statute of limitations relevant to medical
malpractice was codified at Utah Code section 78-14-4. The
portion of that statute relevant to our analysis did not materially
differ from the statute of limitations we consider in this case.

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 Lee v. Williams

held that the plaintiff had not discovered that she was injured by
her doctor’s negligence until her cancer finally recurred. Id. at
1365. In reaching its decision, the court explicitly discussed the
possibility of discovering negligence before injury, and noted
that because “the law does not recognize an inchoate wrong,” “a
claim for negligence is not actionable” until there is “actual loss
or damage,” even if the would-be plaintiff is already aware of
the negligence. Id. at 1364 (citations and internal quotation marks
omitted); see also Hunsaker v. State, 870 P.2d 893, 897 (Utah 1993)
(noting that actual damages must be pled in addition to a breach
of duty in order to assert a claim for negligence). Because the
plaintiff in Seale had discovered her doctor’s negligence, but had
not yet realized an injury, the supreme court held that the statute
of limitations did not begin to run until that injury manifested
itself. See Seale, 923 P.2d at 1365.

¶36 This case presents one of those situations—like Seale—
where a plaintiff has discovered that a medical provider may
have been negligent, but where the results of any such
negligence would not necessarily be immediately apparent. As
noted, the odds of becoming Rh-sensitized, even without a
RhoGAM shot, are something on the order of 1 or 2 percent and,
moreover, a woman who has been Rh-sensitized may be entirely
asymptomatic until her next pregnancy. In this case, Lee
discovered the possibility of Williams’s negligence when she
learned she should have received RhoGAM during her first
pregnancy and knew that she did not actually receive it. But
discovering negligence, at least in this case, is not the same thing
as discovering injury.

¶37 Accordingly, the trial court’s summary judgment ruling
was sound. The undisputed evidence demonstrated that Lee
knew, no later than March 2009, that Williams might have been
negligent. The trial court correctly entered summary judgment
on this point, and appropriately narrowed the issues for trial—at

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 Lee v. Williams

least on the statute of limitations issue—to whether and when
Lee discovered that Williams’s negligence caused her injury.

II. Trial Management Issues

¶38 Next, Lee argues that the trial court made four errors
during the course of the trial. We agree with Lee on three of the
trial issues raised.

A. Jury Instructions and Verdict Form

¶39 Lee first argues that the trial court erred when it
instructed the jury that a medical malpractice plaintiff discovers
injury when “an ordinary person through reasonable diligence
knows or should know that they might have sustained an injury.”
(Emphasis added.) Lee argues that the inclusion of the words
“might have” in the jury instructions and in the special verdict
form was error. We agree.

¶40 As discussed above, our supreme court has held that, to
discover legal injury under the Malpractice Act, a plaintiff must
discover “both the fact of injury and that it resulted from
negligence.” Daniels, 2009 UT 66, ¶ 1 (emphasis added); see also
id. ¶ 31 (the statute of limitations begins to run when “a patient
should have discovered his injury and its possible negligent
cause”). With regard to the “negligence” element, our
jurisprudence speaks in terms of discovering a “possibility of
negligence.” Roth, 2010 UT App 332, ¶ 21. But with regard to the
“injury” element, a mere “possibility” of injury is not enough—a
plaintiff must know (or at least should know, through
reasonable diligence) that she actually sustained an injury in
order for the statute of limitations to start running. See Seale, 923
P.2d at 1365 (noting that discovery of both negligence and the
possibility of injury resulting from that negligence is not
sufficient to trigger the statute of limitations); see also Roth, 2010
UT App 332, ¶ 21 (noting that a plaintiff must discover “the
existence of an injury” before the statute of limitations begins to

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 Lee v. Williams

run (emphasis added)); Deschamps v. Pulley, 784 P.2d 471, 473
(Utah Ct. App. 1989) (noting that “the two-year provision does
not commence to run until the injured person knew or should
have known that he had sustained an injury and that the injury
was caused by negligent action” (emphasis added) (citation and
internal quotation marks omitted)); cf. Model Utah Jury
Instructions 2d CV325 (2016), https://www.utcourts.gov/
resources/muji/inc_list.asp?action=showRule&id=3#325 [https://
perma.cc/PUP9-4CE2] (stating that “discovery” occurs when a
plaintiff knows “that [she] sustained the injury” and also knows
of “the possibility of a health care provider’s fault in causing the
injury” (emphasis added)). We are aware of no case law
supporting the proposition that a medical malpractice plaintiff
discovers legal injury upon realizing that she might have or could
possibly have sustained an injury. 3

¶41 In this case, however, the trial court instructed the jury
that “[d]iscovery of an injury from medical malpractice occurs
when an ordinary person through reasonable diligence knows or
should know that she might have sustained an injury” (emphasis
added). The addition of the words “might have” was erroneous,
and instructed the jury to apply the law incorrectly. By adding
these two words to the relevant jury instructions (and to the

3. In Daniels v. Gamma West Brachytherapy, LLC, our supreme
court stated that “the statute of limitations did not begin to run
until [the plaintiff] discovered that the [d]efendants’ treatment
and care might have been negligent and thus might have caused
his injuries.” 2009 UT 66, ¶ 31, 221 P.3d 256 (emphasis added).
We read this passage as referring to the possibility of negligence,
not to the possibility of injury—that if the health care
professionals had been negligent, then there might be a
negligent cause for his already-known injury. On the facts of that
case, there was no question that the plaintiff already knew of his
injury. Id. ¶¶ 6–7.

20160198-CA 17 2018 UT App 54
 Lee v. Williams

special verdict form), the trial court impermissibly relaxed the
burden of proof that Defendants are required to meet for their
statute of limitations defense. Under applicable case law,
Defendants would need to establish that Lee knew (or should
have known) about her injury in order to trigger the statute of
limitations, whereas under this instruction Defendants would
need to establish only that Lee was (or should have been) aware
of a possibility that she might be injured.

¶42 In their brief, Defendants attempt to defend the trial
court’s instruction by asserting that “the statute of limitations
begins to run when a plaintiff actually discovers, or through the
use of reasonable diligence should have discovered, her legal
injury.” Because of this, Defendants assert that “a plaintiff need
not have actual knowledge of a physical injury in order for the
time limitation to begin to run,” but need only have “sufficient
information from which a reasonable person exercising
reasonable diligence would discover the injury.” This argument
is correct, as far as it goes. But Defendants overlook the fact that
the thing that a plaintiff must (or reasonably should) know is
that she is actually injured, not just that she might have been
injured. Establishing actual or constructive knowledge of a
potential circumstance is significantly easier than establishing
actual or constructive knowledge of the circumstance itself. Cf.
Luckau v. Board of Review of the Indus. Comm’n of Utah, 840 P.2d
811, 814–15 (Utah Ct. App. 1992) (contrasting the determination
that a series of events could have caused a result from the
determination that the events did cause the result, and noting
that the latter is more difficult to prove).

¶43 In the end, we are persuaded that, by including the words
“might have,” the jury instruction and the special verdict form
incorrectly stated the law and effectively lowered Defendants’
burden for proving their affirmative defense. Accordingly, the
trial court’s decision to include those words in the jury
instructions and the special verdict form was erroneous.

20160198-CA 18 2018 UT App 54
 Lee v. Williams

B. Juror 26

¶44 Lee next contends that the trial court abused its discretion
when it did not dismiss Juror 26 after Lee’s challenge for cause.
We find this argument unpersuasive.

¶45 In general, a prospective juror is not presumed to be
biased unless some portion of his or her voir dire responses
reveal “evidence of bias or partiality.” Butterfield v. Sevier Valley
Hosp., 2010 UT App 357, ¶ 21, 246 P.3d 120 (citation and internal
quotation marks omitted); see also West v. Holley, 2004 UT 97,
¶ 14, 103 P.3d 708 (stating that “[v]oir dire responses revealing
evidence of bias or partiality give rise to a presumption that a
potential juror is biased”). This can occur when a juror openly
indicates that he or she would be biased, but can also occur
when a juror’s voir dire responses reveal that he or she has
developed a personal “‘relationship of affection, respect, or
esteem’” with a witness or party “‘that cannot be deemed
disinterested, indifferent, or impartial.’” State v. Cox, 826 P.2d
656, 660 (Utah Ct. App. 1992) (quoting State v. Brooks, 563 P.2d
799, 802 (Utah 1977)). After a presumption of bias has been
raised, the prospective juror must be dismissed for cause unless
the presumption is rebutted. Id.; see also West, 2004 UT 97, ¶ 14
(stating that a juror who is presumed to be biased “must be
dismissed unless that presumption is rebutted”).

¶46 Courts should not lightly presume, however, that a
potential juror is biased. Here, Lee maintains that the court
should have presumed that Juror 26 was biased following Juror
26’s statements that he was generally acquainted (but not
friends) with Williams, that he received medical care at Moab
Family Medicine (but not from Williams), and that he was
involved in a scouting program with Nurse’s son. We do not
agree that Juror 26’s answers were sufficient to raise a
presumption of bias. “Jurors are not biased merely because they
are acquainted with a party or witness.” Butterfield, 2010 UT App

20160198-CA 19 2018 UT App 54
 Lee v. Williams

357, ¶ 32. Juror 26’s statements that he had met both Williams
and Nurse and had been treated at the clinic which employed
Williams, without more, do not indicate any relationship beyond
the level of a mere acquaintance with Williams and Nurse.
And bias cannot fairly be inferred from a mere acquaintanceship
alone. 4

¶47 This conclusion is bolstered by the fact that, in this case,
the trial court gave Lee ample opportunity to question Juror 26
to determine the extent and depth of any potential bias. Lee was
permitted to question Juror 26 regarding his association with
Nurse and Williams; Juror 26 answered Lee’s questions; and
Lee’s counsel finished questioning Juror 26 in his own time,
without being cut off by the trial court. While trial courts are by
no means required to “‘permit every question that might
disclose some basis for counsel to favor or disfavor seating a
particular juror,’” State v. Holm, 2017 UT App 148, ¶ 11, 402 P.3d
193 (quoting State v. Reece, 2015 UT 45, ¶ 45, 349 P.3d 712), the
fact that the trial court in this case afforded that courtesy to Lee

4. While the standards for granting or denying motions to strike
a juror “for cause” should remain the same for small-town trials
as they are for big-city trials, we note that the issue of potential
jurors being acquainted with parties, witnesses, or other jurors
will, as a practical matter, arise far more often in rural areas than
in counties with large populations. If jurors could be removed
for cause simply because they are acquainted with a party or a
witness or another juror, seating a jury in a small-town trial
would be a difficult exercise indeed. To raise a presumption of
bias, whether in a big city or in a small town, there must be more
than a simple, neutral acquaintance; instead, there must be a
“relationship of affection, respect, or esteem” (or its opposite)
with a witness or party “that cannot be deemed disinterested,
indifferent, or impartial.” State v. Cox, 826 P.2d 656, 660 (Utah Ct.
App. 1992) (citation and internal quotation marks omitted).

20160198-CA 20 2018 UT App 54
 Lee v. Williams

clearly satisfied the court’s responsibility to allow Lee the
opportunity to adduce facts that may support a presumption
that Juror 26 was biased. Even after being allowed more or less
unfettered permission to question Juror 26, Lee was unable to
unearth anything more than the fact that Juror 26 was merely
acquainted with both Williams and Nurse. The trial court
followed up by asking Juror 26 if his relationship with Nurse
would affect his ability to be fair and impartial, and Juror 26
answered in the negative. Certainly, this question would not by
itself have been enough to rehabilitate Juror 26 if a presumption
of bias had been raised. See West, 2004 UT 97, ¶ 15 (stating that
“a presumption of bias cannot be rebutted solely by a juror’s
bare assurance of her own impartiality”). But here, because no
presumption of bias was raised by Juror 26’s disclosures, this
question by the trial court was appropriate and bolstered its
conclusion that Juror 26 could be fair and impartial.

¶48 Accordingly, the trial court did not abuse its discretion
when it denied Lee’s motion to dismiss Juror 26 for cause.

C. Exclusion of Evidence

¶49 Lee next contends that the trial court erred when it
refused to allow Lee, during the bifurcated trial, to introduce
certain evidence derived from Williams’s own medical records
generated during his treatment of Lee. Specifically, Lee contends
that the trial court erred when it excluded: (a) part of Williams’s
discharge summary medical record stating that he had ordered a
RhoGAM injection for Lee during her pregnancy, and (b) some
of Williams’s other medical records that contradicted this
assertion by indicating that no RhoGAM injection had ever been
ordered for Lee.

¶50 The parties and the trial court offer four distinct
characterizations of the trial court’s reasoning in excluding the
proffered evidence. Lee asserts that the trial court excluded the
evidence purely on the grounds that the court did not find it to

20160198-CA 21 2018 UT App 54
 Lee v. Williams

be “relevant” under rule 402 of the Utah Rules of Evidence, and
argues that this rationale is incorrect. Defendants argue that the
proffered evidence was indeed irrelevant, but also maintain, in
the alternative, 5 that the evidence was properly excluded under
rule 403 of the Utah Rules of Evidence, because its probative
value was substantially outweighed by either the danger of
unfair prejudice or by the risk of “waste of time.” For its own
part, while the trial court discussed relevance at length, it stated
that its ultimate decision to exclude the proffered evidence
rested on its determination that the probative value of the
evidence was outweighed by the risk that it would “confus[e]
the jury,” apparently also referencing rule 403. We find none of
these justifications persuasive.

¶51 First, the evidence was relevant. “Relevant evidence is
admissible,” Utah R. Evid. 402, and evidence meets the
definition of “relevant” if it has “any tendency” to make a fact
“of consequence in determining the action” “more or less
probable than it would be without the evidence,” Utah R. Evid.
401(a)–(b). As our supreme court has noted, the concept of
“relevance” is extremely broad. See State v. Reece, 2015 UT 45,
¶ 64, 349 P.3d 712 (stating that “[e]vidence that has even the
slightest probative value is relevant under the rules of evidence”
(alteration in original) (citation and internal quotation marks
omitted)).

¶52 In deciding whether and to what extent the proffered
evidence was relevant, the trial court seems to have been
informed, at least in part, by its bifurcation of the trial into two
phases: one phase concerning whether the statute of limitations
barred Lee’s claim and, if necessary, a second phase concerning

5. We can, of course, affirm a trial court’s decision on any
ground supported by the record. See Bailey v. Bayles, 2002 UT 58,
¶ 10, 52 P.3d 1158.

20160198-CA 22 2018 UT App 54
 Lee v. Williams

the merits of Lee’s medical malpractice claim, including the
question of whether Williams was negligent. Certainly, the
proffered evidence would have been relevant to whether
Williams was negligent, and would arguably have been even
more probative to that issue than to the determination of when
Lee knew about her injury. However, the proffered evidence is
nevertheless relevant to whether and when Lee knew about her
injury.

¶53 Lee wanted to use the medical records to argue that
Williams misrepresented in his records that he had ordered a
RhoGAM injection for Lee but in fact had never done so, and
hoped that, by so doing, she could cast doubt upon Williams’s
credibility, including specifically the credibility of his assertion
that he had informed Lee of her Rh-sensitization on or about
December 31, 2008. We agree with Lee that this evidence would
have at least some tendency to make it more or less probable that
Williams informed Lee of her Rh-sensitization as he claimed
because it touched on whether Williams’s testimony was
generally credible. Evidence that “may shed light on the
credibility of a witness [] does have probative value.” See State v.
Miranda, 2017 UT App 203, ¶ 35, 407 P.3d 1033. We therefore
consider the proffered evidence to have been relevant, even
during the first stage of the bifurcated proceedings. In fact, the
trial court stated as much during its oral ruling, noting that the
evidence “has probative value.” Thus, the proffered evidence
should not have been excluded pursuant to rule 402.

¶54 Similarly, we are not persuaded that the evidence should
have been excluded pursuant to rule 403. That rule requires trial
courts to balance the probative value of proffered evidence
against countervailing factors, such as the potential for unfair
prejudice, waste of time, or confusion, and instructs trial courts
to “exclude relevant evidence if its probative value is
substantially outweighed by” any of those factors. Utah R. Evid.
403. We are unpersuaded that the danger of any of those things

20160198-CA 23 2018 UT App 54
 Lee v. Williams

“substantially outweighed” the probative value of the proffered
evidence.

¶55 First, we do not see any appreciable risk of unfair
prejudice to Williams by admission of the proffered evidence.
Evidence is unfairly prejudicial when it has “the tendency to
suggest a verdict on an improper, emotional basis.” State v.
Hildreth, 2010 UT App 209, ¶ 44, 238 P.3d 444. However, “[r]ule
403 does not require a trial court to dismiss all prejudicial
evidence because all effective evidence is prejudicial in the sense
of being damaging to the party against whom it is offered.” State
v. Marchet, 2009 UT App 262, ¶ 44, 219 P.3d 75 (second alteration
in original) (citations, internal quotation marks, and brackets
omitted). Here, we are unable to perceive any potential for unfair
prejudice to Williams as a result of introducing his own medical
records. Certainly, the proffered evidence may indicate to the
jury that Lee did not receive a RhoGAM injection during her first
pregnancy (a stipulated fact), and that Williams had no
contemporaneous record of ordering one. Indeed, it may
potentially even raise the possibility that Williams wrote that he
ordered an injection in order to conceal his negligence. While
this evidence could have reflected poorly on Williams’s
credibility, that is not a danger of unfair prejudice. Weighing the
credibility of witnesses is one of a jury’s principal functions. See
Lyon v. Bryan, 2011 UT App 256, ¶ 10, 262 P.3d 1199. We perceive
no appreciable danger of unfair prejudice to Williams from the
introduction of his own medical records regarding his treatment
of Lee.

¶56 Second, we do not perceive any appreciable risk that
admission of Williams’s own medical records would have
constituted an undue waste of the jury’s time. There are many
ways in which evidence may waste a jury’s time. For instance,
evidence “wastes time” if it will “do little more than tell the jury
what result to reach,” see Davidson v. Prince, 813 P.2d 1225, 1232
n.7 (Utah Ct. App. 1991), or if it is “utterly unrelated” to the

20160198-CA 24 2018 UT App 54
 Lee v. Williams

issues central to a proceeding, see State v. Martin, 2017 UT 63,
¶ 49. But those concerns are not present here. The proffered
evidence was not voluminous, and would not have added
significant time to the trial. Moreover, the evidence was not
“utterly unrelated” to the question the jury was asked to answer.

¶57 Finally, we disagree that the probative value of the
excluded evidence was substantially outweighed by the danger
that it would have confused the jury. Without doubt, the
proffered evidence also shed light on the negligence questions
that were to be taken up, if at all, in the second phase of the
bifurcated trial. But merely because a piece of evidence is
relevant to more than one issue does not mean it is inherently
confusing. A jury—especially a properly instructed one—can be
expected to keep straight the questions it is asked to answer in a
bifurcated trial, and we have no trouble concluding that it is
improper to exclude relevant evidence in the first phase of a
bifurcated trial simply because that evidence might be more
relevant to the second phase.

¶58 Although trial courts generally have quite a bit of latitude
to admit or exclude evidence pursuant to rule 403, see Diversified
Holdings, LC v. Turner, 2002 UT 129, ¶ 38, 63 P.3d 686, that
discretion is not unbounded. In our view, that discretion was
exceeded here. The trial court should not have excluded
Williams’s own medical records from evidence during the first
phase of the bifurcated trial.

D. Counsel’s Ex Parte Conversation with Nurse

¶59 Lee next contends that the trial court erred when it denied
her motion regarding the ex parte conversation that occurred
between Williams’s counsel and Nurse. Relying on Sorensen v.
Barbuto, 2008 UT 8, 177 P.3d 614, and its progeny, Lee maintains
that any ex parte communication between Williams’s counsel
and Nurse that concerned Lee’s case should have been deemed
improper, and that the trial court should then have engaged in

20160198-CA 25 2018 UT App 54
 Lee v. Williams

further deliberation to determine how to mitigate the
impropriety. We find Lee’s arguments persuasive.

¶60 In Sorensen, our supreme court recognized a duty of
confidentiality between physicians and patients, and held that
this duty prevents a physician from “disclosing information
received through the physician-patient relationship.” See id. ¶ 12.
Specifically, the court held that this duty prohibits “ex parte
communications between a plaintiff’s treating physician” and
defense counsel, who is acting as the attorney for the plaintiff’s
litigation opponent. 6 Id. ¶ 21. In the event that defense counsel
wishes to obtain information from a plaintiff’s treating
physician, that attorney must use “traditional forms of formal
discovery,” such as interrogatories and depositions. Id. ¶ 24. The
supreme court listed two important reasons for this rule:
furthering “patient expectations of physician-patient
confidentiality,” and providing sufficient “judicial monitoring”
of information exchanges between treating physicians and
defense attorneys. Id. ¶ 21.

¶61 Our supreme court elaborated on this standard in Wilson
v. IHC Hosps., Inc., 2012 UT 43, 289 P.3d 369. In that case, the
court clarified that once an improper ex parte communication
has occurred, the “[s]election of an appropriate sanction requires
fact-finding combined with the exercise of discretion” by the
trial court. Id. ¶ 94. Thus, when a trial court becomes aware of an

6. The court also vacated a previous decision of the Utah State
Bar Ethics Advisory Opinion Committee that had authorized ex
parte communications between defense lawyers and treating
physicians. Sorensen v. Barbuto, 2008 UT 8, ¶ 27, 177 P.3d 614. In
so doing, the court “instruct[ed] lawyers,” as a matter of
attorney ethics, “to confine their contact and communications
with a physician or therapist who treated their adversary to
formal discovery methods.” Id.

20160198-CA 26 2018 UT App 54
 Lee v. Williams

improper ex parte communication, it may exercise its power to
levy sanctions, which “may include fines, attorney fees,
exclusion of evidence, disqualification of counsel, or any other
appropriate response,” and which should be “appropriately
related to the nature of the misconduct and the resulting
prejudice, either actual or potential.” Id.

¶62 In this case, Williams’s counsel contacted Nurse 7 ex parte
on the evening before Nurse’s testimony, and secured Nurse’s
agreement to testify against Lee, chiefly regarding some of
Williams’s general practice habits. Lee maintains that this
conversation violated the principles our supreme court set forth
in Sorensen and Wilson. At various points during this appeal,
Defendants have posited two arguments supporting their
assertion that this conversation was not improper under
Sorensen. First, Defendants argued in their brief that Nurse was
not a treating medical provider for Lee and therefore not subject
to Sorensen’s bar. Second, Defendants asserted at oral argument
that counsel’s ex parte communications with Nurse were not
legally prohibited because those communications did not

7. Defendants make no argument that the duty of confidentiality
articulated in Sorensen applies only to physicians and not to
other health care professionals, such as nurses. Indeed, both
sides appear to be operating under the assumption that the duty
applies to nurses in the same way it applies to physicians.
Because the parties do not raise the issue, we do not directly
address it, other than to note, in passing, that courts in other
states that have prohibited ex parte communications between
plaintiff’s treating physicians and defense counsel have
extended the fiduciary duty of confidentiality to nurses as well.
See, e.g., Roberson v. Liu, 555 N.E.2d 999, 1002 (Ill. App. Ct. 1990)
(ex parte sworn statement provided to defense counsel by nurse
who was present during plaintiff’s surgery breached the
fiduciary duty of confidentiality).

20160198-CA 27 2018 UT App 54
 Lee v. Williams

include any discussion of Williams’s specific treatment of Lee,
but instead were limited merely to a discussion of Williams’s
practice habits in general. Neither argument is convincing.

¶63 The first argument merits little discussion. Defendants’
representation, in their brief, that Nurse “is not and was not
[Lee’s] treating medical provider” is plainly incorrect. After
Defendants made that assertion in their brief, Lee attached to her
reply brief some ten pages of medical records demonstrating
that Nurse treated Lee during Lee’s 2008 pregnancy, including
treatment as early as October 2008, roughly the period when Lee
should have received her first RhoGAM injection. There is no
question that Nurse was one of Lee’s treating providers during
the pregnancy in question, and therefore Nurse is a health care
provider with whom defense counsel should not have had ex
parte conversations.

¶64 The second argument differs from the first one, in that the
factual assertions Defendants make are correct, but the argument
is ultimately no more persuasive. As a factual matter, the
conversation between Nurse and Williams’s attorney appears to
have been limited to a discussion of some of Williams’s general
treatment habits. Specifically, Williams wanted to call Nurse as a
witness so that she could explain to the jury that Williams was
the type of doctor who typically explains medical injuries to his
patients in a thorough manner. Lee’s counsel was afforded the
opportunity, at trial (and outside the presence of the jury), to ask
Nurse about the contents of her conversation with Williams’s
attorney, and Nurse confirmed counsel’s account that there was
no specific discussion of Lee at all, and certainly no discussion
about Williams’s or Nurse’s treatment of Lee. Although the
conversation did not specifically include any discussion of Lee
or Williams’s care of Lee, we are persuaded that the
conversation was nevertheless forbidden by the rule set forth in
Sorensen.

20160198-CA 28 2018 UT App 54
 Lee v. Williams

¶65 One of the reasons our supreme court gave for forbidding
ex parte communications between treating physicians and
defense attorneys is the need to assure “patients that their honest
and complete disclosures of symptoms and medical history to
treating physicians will be kept confidential.” Sorensen, 2008 UT
8, ¶ 22. The court noted that “judicial monitoring” of those
conversations is necessary to further that goal, because
otherwise “patients would lack adequate assurance that their
candid responses to questions important to determining their
appropriate medical treatment would remain confidential.” Id.
The court considered, but rejected, the notion of “placing the
burden of determining relevancy” on either the attorney or the
physician, noting as follows:

Placing the burden of determining relevancy on an
attorney, who does not know the nature of the
confidential disclosure about to be elicited, is risky.
Asking the physician, untrained in the law, to
assume this burden is a greater gamble and is
unfair to the physician. We believe this
determination is better made in a setting in which
counsel for each party is present and the court is
available to settle disputes.

Id. ¶ 23 (citation omitted); see also Wilson, 2012 UT 43, ¶ 91
(noting that defense counsel “has a duty in the underlying
lawsuit to neither instigate nor facilitate a treating physician’s
breach of the duty of confidentiality to his patient through an
improper ex parte meeting”).

¶66 In both Sorensen and Wilson, the ex parte communications
in question actually did concern the specific treatment of the
plaintiffs. We are unaware of any Utah case discussing whether
an ex parte conversation between a treating physician and a
defense attorney that does not discuss the patient’s care would
violate the principles set forth in Sorensen. As a practical matter,

20160198-CA 29 2018 UT App 54
 Lee v. Williams

we recognize that a conversation simply about setting a date for
scheduling a deposition, or a friendly conversation in a grocery
store about the weather or the local football team’s fortunes,
would not be problematic. See, e.g., Goin v. United States, No.
3:13-cv-564-NJR-DGW, 2015 WL 1577771, *2 (S.D. Ill. Apr. 2,
2015) (holding that a conversation between an attorney and a
doctor that was limited to scheduling a date for a deposition did
not violate Illinois’s version of Sorensen). But a conversation
about the merits or substance of the case, even if that
conversation does not explicitly touch on the patient’s care, is
too close to the line, and in our view is still within the Sorensen
prohibition. See, e.g., Burns v. Michelotti, 604 N.E.2d 1144, 1148–49
(Ill. App. Ct. 1992) (determining that an ex parte communication
that concerned only details relevant to a change-of-venue
motion, including whether the doctor’s office was in a certain
county and whether all of the doctor’s treatment of the patient
had been in a certain county, violated Illinois’s version of
Sorensen, even though the communications did not concern the
specifics of the doctor’s treatment of the patient); see also Smith v.
Orthopedics Int’l Ltd., 244 P.3d 939, 945 (Wash. 2010) (holding that
even transmitting publicly available documents to a patient’s
treating physician without asking any questions violates
Washington’s prohibition on ex parte communications).

¶67 Accordingly, we conclude that any ex parte
communication between a defense attorney and a plaintiff’s
treating physician that is related to the merits or substance of the
plaintiff’s case in any respect violates the rule set forth in
Sorensen, regardless of whether the confidential details of the
patient’s care are in fact discussed and regardless of whether
actual prejudice results. Accordingly, the conversation between
Williams’s counsel and Nurse was improper, even though it did
not include any discussion of Williams’s or Nurse’s specific
treatment of Lee. The trial court’s conclusion to the contrary was
incorrect.

20160198-CA 30 2018 UT App 54
 Lee v. Williams

¶68 The trial court, on remand, must determine what (if any)
sanction is appropriate under the circumstances. When
considering what, if any, sanction to impose, a trial court may
take into account whether and to what extent the patient’s care
was actually discussed, and whether any confidential details
were divulged. In this case, the fact that the conversation
between counsel and Nurse included neither a discussion of
Lee’s medical treatment nor a discussion of any confidential
information Lee may have shared with Nurse or Williams
during the course of her treatment may counsel in favor of a
light sanction. See, e.g., Burns, 604 N.E.2d at 1150–51 (imposing a
very light “sanction” in view of the “minimal nature of the
contact in question and its lack of relevance to the substance of
the case”). But selection of that sanction is for the trial court to
determine. See Wilson, 2012 UT 43, ¶ 94 (stating that “[s]election
of an appropriate sanction” is “a decision [that] is best made in
the first instance by a trial court,” because it “requires fact
finding combined with the exercise of discretion”).

III. Harmless Error

¶69 Having determined that the trial court made three errors,
we next consider whether those errors, taken together, merit
reversal. “The court at every stage of the proceeding must
disregard any error or defect in the proceeding which does not
affect the substantial rights of the parties.” Utah R. Civ. P. 61.
Accordingly, when we determine that a trial court erred, we do
not reverse unless “there is a reasonable likelihood that a
different result would have been reached” absent the errors.
Belden v. Dalbo, Inc., 752 P.2d 1317, 1321 (Utah Ct. App. 1988).
The burden of showing that a party was harmed by the trial
court’s error rests on that party. State v. Lafferty, 2001 UT 19, ¶ 35,
20 P.3d 342.

¶70 Here, we have noted that the trial court erred in three
instances, by: (1) adopting jury instructions (and a special verdict

20160198-CA 31 2018 UT App 54
 Lee v. Williams

form) that misstated the legal standard for when a plaintiff
discovers her injury, thus relaxing Defendants’ burden of proof
for their statute of limitations defense; (2) excluding evidence at
trial that was relevant to the question of what Lee knew and
when she knew it; and (3) denying outright Lee’s motion
regarding defense counsel’s improper ex parte communication
with Nurse. The first two of these errors cannot be categorized as
harmless, and therefore a new trial is required.

¶71 In our view, the first issue is particularly significant. The
jury was presented with an incorrect legal standard in both the
jury instructions as well as in the special verdict form—a
standard that effectively relaxed the burden of proof that
Defendants had to meet for their affirmative defense. The jury
was told that Lee would be considered to have discovered her
injury as soon as she “knew or should have known she might
have been injured.” As we have explained, this is incorrect; the
jury should have been instructed, in keeping with applicable
case law and MUJI 2d CV325, that a plaintiff is not considered to
have discovered her injury until she knows, or reasonably
should know, that she has sustained an injury. After being given
an incorrect legal standard, the jury may well have determined
that Lee knew that she might be injured as soon as she
discovered Williams’s alleged negligence, regardless of whether
she knew or should have known she was actually Rh-sensitized
at that point. There is a reasonable likelihood that the jury may
have reached a different result had they been given jury
instructions and a verdict form that articulated the correct legal
standard.

¶72 The second issue is also material. Lee correctly notes that
the only witness to testify that Lee knew of her injury prior to
the birth of her second child was Williams, who testified that he
told Lee about it on December 31, 2008, the day after her first
child was born. But Williams’s own medical records do not
independently support his testimony, and the jury was not

20160198-CA 32 2018 UT App 54
 Lee v. Williams

permitted to see all of those records, including the records
showing that no RhoGAM injection was ever ordered for Lee
during her pregnancy coupled with the record containing an
unsupported post-birth assertion to the contrary. As we
conclude above, all of these records were relevant to the jury’s
determination during the first phase of the bifurcated trial, and
should not have been kept from the jury. We are unable to say
with any degree of certainty that the outcome of the trial would
have been the same had the jury been given the opportunity to
consider all of Williams’s records.

¶73 In the end, we conclude that these two errors—especially
taken together—may have made a difference in the outcome of
the trial, and that “there is a reasonable likelihood that a
different result would have been reached” absent the errors.
Belden, 752 P.2d at 1321. Accordingly, the trial court’s adoption
of an improper jury instruction and exclusion of some of
Williams’s medical records were not harmless errors.

¶74 The third error we identify—the trial court’s failure to
identify the improper ex parte communication between Nurse
and Williams’s attorney as a violation of the Sorensen standard—
may not have been an error that led, on its own, to a different
outcome. However, because we remand the case for a new trial
based on the harmful effect of the first two errors, we direct the
district court, on remand, to consider an appropriate sanction (if
any) for the improper ex parte communication.

CONCLUSION

¶75 We affirm the trial court’s summary judgment decision,
and conclude that the trial court appropriately narrowed the
issues for trial. During the trial, however, the court committed
three errors, two of which are potentially harmful enough to
warrant reversal. Accordingly, we affirm in part and reverse in
part, and remand this case to the trial court for a new trial or for

20160198-CA 33 2018 UT App 54
 Lee v. Williams

such other further proceedings as may be consistent with this
opinion.

20160198-CA 34 2018 UT App 54