2022 UT App 70
THE UTAH COURT OF APPEALS
JASON SHELL,
Appellant,
v.
INTERMOUNTAIN HEALTH SERVICES INC., JUNIOR ETE, AND
DOUGLAS ALKIRE,
Appellees.
Opinion
No. 20200915-CA
Filed June 9, 2022
Third District Court, West Jordan Department
The Honorable William K. Kendall
No. 200902403
Andrew G. Deiss, Corey D. Riley, Sydney J. Sell, and
John Robinson Jr., Attorneys for Appellant
David J. Jordan and Mark E. Hindley,
Attorneys for Appellees
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.
ORME, Judge:
¶1 Jason Shell challenges the district court’s dismissal of his
claims without prejudice against Intermountain Health Services,
Inc. (IHC, as it is referred to in the briefs), Junior Ete, and Douglas
Alkire (collectively, Appellees) on the ground that he did not
comply with the pre-litigation requirements of the Utah Health
Care Malpractice Act (the Act). Shell primarily argues that
because he received no medical treatment from IHC, the Act did
not cover his claims. We agree and reverse.
Shell v. Intermountain Health Services
BACKGROUND 1
¶2 In March 2019, in the throes of a mental health crisis, Shell
sought medical attention at IHC’s Behavioral Health Access
Center at LDS Hospital in Salt Lake City (the Access Center).
Shell’s girlfriend accompanied him and waited with him in the
lobby, but an employee “told her to leave because the treatment
would take several hours.” A staff member then escorted Shell to
an examination room and instructed him to remove his clothes
down to his underwear and change into a hospital gown. After he
changed, the staff placed his clothes, along with his other
belongings, in a locker down the hall. A social worker then
“advised that he must take a sedative to ‘get some rest.’” Shell was
uncomfortable with this and asked whether he could receive “an
alternative treatment.” The social worker replied “that he could
either take the sedative or leave the Access Center.”
¶3 Still uncomfortable with taking the sedative, Shell opted to
leave and asked to use a phone to call his girlfriend to come pick
him up. Shell was then taken to the lobby to use the phone, but he
was unable to reach his girlfriend, so the social worker escorted
Shell back to the examination room. At that time, Douglas Alkire,
who was employed by IHC as a security guard at the Access
Center, “walked over to the only public exit at the Access Center
and locked the door,” meaning it could be opened only by a staff
key card. While standing in the doorway of the exam room, Shell
and the social worker “were having a peaceful conversation to
1. “On appeal from a motion to dismiss, we review the facts only
as they are alleged in the complaint. We accept the factual
allegations as true and draw all reasonable inferences from those
facts in a light most favorable to the plaintiff. We recite the facts
accordingly.” Peck v. State, 2008 UT 39, ¶ 2, 191 P.3d 4 (quotation
simplified).
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Shell v. Intermountain Health Services
resolve the situation,” but the social worker and other IHC staff
still “refused to provide treatment unless Shell took a sedative.”
¶4 At this point, Shell informed the staff that he wanted to
leave but could not do so on his own, and he again requested to
call his girlfriend. The staff refused. As Shell was talking to the
social worker, Junior Ete, another IHC security guard, entered the
Access Center via a key card. Ete quickly approached and came
“face-to-face with Shell, bumping him with his chest, and
blocking Shell from leaving.” Alkire and other staff then
“surrounded” Shell. Shell took a few steps out of the exam room
into the hallway, but “[g]iven the increasing hostility” coming
from the staff, “Shell backed up slowly, taking a couple of steps
away from Ete to create some distance.”
¶5 As Shell continued to back away, Ete “quickly grabbed
Shell by his shoulders, dragged Shell across the lobby [and]
slammed Shell against the wall.” Ete “then forced Shell to the
ground with his hands around Shell’s neck” and, with help from
Alkire, kept Shell, who was mostly disrobed at this point, pinned
down. “Shell shouted for help” while other “IHC employees
watched.”
¶6 Ete and Alkire then lifted Shell up and slammed him back
into the ground. This caused Shell to start bleeding from his
mouth and from the back of his head. Ete subsequently “moved
his forearm down to Shell’s neck and forced his body weight on
Shell’s throat for 20 seconds,” making Shell “unable to call for
help . . . because he couldn’t breathe.”
¶7 Ete and Alkire then dragged Shell out of the Access Center,
causing his hospital gown to come off completely. Ete and Alkire,
assisted by other IHC staff, then proceeded, for approximately 15
minutes, to pin Shell to the floor outside the Access Center before
deciding to call the police. Still bleeding, Shell remained pinned
to the ground until the police arrived, nearly losing consciousness
at several points. While waiting for the police to arrive, the IHC
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Shell v. Intermountain Health Services
staff “wiped [the] blood away” after “discuss[ing] how it would
appear to the police when they arrived.” 2
¶8 A year later, Shell filed a complaint, later amended,
asserting seven causes of action: battery (against Appellees);
assault (against Ete and IHC); false imprisonment (against
Appellees); intentional infliction of emotional distress (against
Appellees); negligent infliction of emotional distress (against
Appellees); negligent hiring, supervision, and/or retention
(against IHC); and breach of fiduciary duty (against IHC). Shell
also sought declaratory relief from the district court that the Act
did not apply because Appellees’ actions were “outside the
scope” of the Act. 3
¶9 In response, pursuant to rule 12(b)(6) of the Utah Rules
of Civil Procedure, Appellees filed a motion to dismiss for
failure to state a claim upon which relief could be granted. They
asserted that Shell’s claims met all the triggering mechanisms
of the Act, requiring him to follow the Act’s pre-litigation
requirements before filing a claim in district court.4 Specifically,
Appellees contended that “[t]his case is a medical malpractice
case” “against a health care provider” and that the torts
2. The complaint contains no allegations regarding what
happened after the police arrived.
3. The Act requires that certain procedural steps be taken before a
lawsuit can be filed against a health care provider. These steps
include the filing of notice of intent to commence an action and
the filing of a complaint within two years. See Utah Code Ann.
§§ 78B-3-404, -412 (LexisNexis 2018).
4. For the Act to apply, the claim must be a “malpractice action
against a health care provider” arising out of or in relation to
health care received. Scott v. Wingate Wilderness Therapy, LLC, 2021
UT 28, ¶ 23, 493 P.3d 592 (quotation simplified).
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Shell v. Intermountain Health Services
allegedly committed arose “during the course of [Shell’s] visit for
medical attention.” Thus, Appellees argued, Shell’s “[c]omplaint
should be dismissed until he complies with the Act’s
requirements.”
¶10 Shell opposed the motion, arguing that he did not have to
comply with the Act’s requirements because the triggering
mechanisms for its application were not met. Specifically, he
asserted that Ete and Alkire could not be considered health care
providers under the Act and that the alleged torts were unrelated
to any health care he received.
¶11 The district court granted Appellees’ motion to dismiss.
It ruled that Ete and Alkire were health care providers under
the Act because they were the “employees or agents of
[IHC] acting in the course and scope of their employment.” It
also ruled that the alleged torts “relate[d] to, and arose from,
[Shell’s] health care treatment.” Thus, it ruled that Shell was
required to comply with the Act’s pre-litigation requirements and
dismissed his claim without prejudice, allowing Shell to refile his
complaint after he complied with the Act’s requirements. Shell
appeals.
ISSUE AND STANDARD OF REVIEW
¶12 Shell asserts that the district court erred in granting
Appellees’ motion to dismiss. “We review the grant of a motion
to dismiss for correctness, granting no deference to the decision of
the district court.” Hudgens v. Prosper, Inc., 2010 UT 68, ¶ 14, 243
P.3d 1275. “Also, we review the interpretation and application of
a statute for correctness, granting no deference to the district
court’s legal conclusions.” Berneau v. Martino, 2009 UT 87, ¶ 9, 223
P.3d 1128.
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Shell v. Intermountain Health Services
ANALYSIS
¶13 Shell contends that the district court erred in granting
Appellees’ motion to dismiss on the rationale that the Act applied
to his case because his claims related to or arose from his health
care treatment and because Ete and Alkire were health care
providers under the Act. These issues are questions “of statutory
interpretation, and so we march down the well-trod path we take
when we hope to understand the meaning of statutory language.”
Scott v. Wingate Wilderness Therapy, LLC, 2021 UT 28, ¶ 21, 493 P.3d
592. We first look to the statute’s plain language, assisted by “its
linguistic, structural, and statutory context,” Olsen v. Eagle
Mountain City, 2011 UT 10, ¶ 9, 248 P.3d 465, and “we seek
guidance from the legislative history and relevant policy
considerations” only if “we find ambiguity in the statute’s plain
language,” Nelson v. Salt Lake County, 905 P.2d 872, 875 (Utah 1995)
(quotation simplified).
¶14 The Act applies to any “malpractice action against a health
care provider.” Scott, 2021 UT 28, ¶ 23 (quotation simplified). The
Act defines this as
any action against a health care provider, whether
in contract, tort, breach of warranty, wrongful
death, or otherwise, based upon alleged personal
injuries relating to or arising out of health care
rendered or which should have been rendered by
the health care provider.
Utah Code Ann. § 78B-3-403(17) (LexisNexis 2018) (emphasis
added). 5 “In other words, the Act applies when a plaintiff files suit
5. When these events occurred, the definitions of “health care”
and “malpractice action” were located in Utah Code subsections
78B-3-403(10) and 78B-3-403(17), respectively. These subsections
have since been renumbered as 78B-3-403(11) and 78B-3-403(18).
(continued…)
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Shell v. Intermountain Health Services
against a ‘health care provider,’ and the alleged injuries ‘relat[e]
to or aris[e] out of health care rendered . . . by the health care
provider.’” Scott, 2021 UT 28, ¶ 23 (quoting Utah Code Ann.
§ 78B-3-403(17)) (alterations in original).
¶15 “Health care” is defined as
any act or treatment performed or furnished, or
which should have been performed or furnished, by
any health care provider for, to, or on behalf of a
patient during the patient’s medical care, treatment,
or confinement.
Utah Code Ann. § 78B-3-403(10). “Breaking that down, ‘health
care’ is: an ‘act or treatment’ that was or should have been
‘performed or furnished’: (1) ‘for, to, or on behalf of a patient’;
(2) ‘during the patient’s medical care, treatment, or confinement’;
and (3) by a ‘health care provider.’” 6 Scott, 2021 UT 28, ¶ 24
(quoting Utah Code Ann. § 78B-3-403(10)).
¶16 Additionally, it is important to note “that not every act a
‘health care provider’ performs is ‘health care’ within the
Malpractice Act’s meaning.” Id. ¶ 28. “The statute cabins what can
be considered health care” by stating that it “constitutes ‘any act
Compare Utah Code Ann. § 78B-3-403(10), (17) (LexisNexis 2018),
with id. § 78B-3-403(11), (18) (Supp. 2022). These amendments
make no change relevant to our analysis, and we cite the version
in effect at the time of the events at issue in this matter.
6. The Act also defines who qualifies as a health care provider. But
given our resolution of the case on the ground that Shell never
received health care and therefore did not have to comply with
the Act’s pre-litigation requirements on that basis alone, we need
not consider this definition and the case law interpreting it to
determine whether Ete and Alkire fell under the Act’s definition
of a health care provider.
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Shell v. Intermountain Health Services
or treatment performed or furnished . . . by any health care
provider for, to, or on behalf of a patient during the patient's medical
care, treatment, or confinement.’” Id. ¶ 29 (quoting Utah Code Ann.
§ 78B-3-403(10)) (alteration and emphasis in original). Thus,
determining whether an action by a health care provider
was done “for, to, or on behalf of a patient during
the patient’s medical care [or] treatment” requires
examining the scope of the care or treatment that the
health care provider prescribed, ordered, or
designed for the patient. It also requires examining
whether the act from which the injury arose
occurred during that treatment or care—that is,
whether that act occurred “in the course of” the
treatment.
Id. ¶ 36 (alteration and emphasis in original) (quotation
simplified).
¶17 Here we assume, for purposes of our analysis, that Ete and
Alkire were health care providers under the Act along with IHC.
Thus, the questions before us are (1) whether Shell’s injuries were
the result of actions by Appellees “for, to, or on behalf of [Shell]”
and (2) whether the actions occurred “during [Shell’s] medical
care, treatment, or confinement.” 7 See Utah Code Ann.
7. The inquiry into whether a plaintiff’s claims “relat[e] to or
aris[e] out of health care rendered,” see Utah Code Ann.
§ 78B-3-403(17) (LexisNexis 2018), is separate and apart from the
inquiry into the other elements, see Scott v. Wingate Wilderness
Therapy, LLC, 2021 UT 28, ¶¶ 52–64, 493 P.3d 592. We would
undertake this further inquiry only if we first determined that
health care was rendered, and because we conclude that no health
care was provided to Shell in this case, we have no need to
determine whether Shell’s claims related to or arose out of any
(continued…)
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Shell v. Intermountain Health Services
§ 78B-3-403(10). In other words, we must determine whether the
allegations of Shell’s complaint mean that Appellees rendered
health care to him.
¶18 Shell contends that the Act does not cover his claims
because IHC “did not provide [him] health care.” Given the
allegations of his complaint, which we accept as true, see supra
note 1, we agree.
¶19 The district court ruled that because Shell “went to IHC’s
mental health clinic at LDS Hospital to receive treatment for a
‘mental health crisis,’” Shell’s subsequent injuries at the hands of
Ete and Alkire were covered by the Act because his injuries were
a result of “health care treatment” provided to him. In essence, the
court concluded that because Shell sought treatment at the Access
Center and because he was harmed by the center’s security
guards, his injuries arose from treatment. This reasoning is
flawed. According to his complaint, Shell never actually received
“health care” after he arrived at the Access Center. The court
simply assumed he received health care because he sought
treatment. But accepting the facts alleged in the complaint as true,
it is clear that Shell never received health care as it is defined in
the Act.
¶20 Shell alleged that he arrived at the Access Center seeking
help with a mental health crisis. He was then taken to an
examination room and instructed to remove his clothing and
change into a hospital gown. A social worker then “advised” Shell
to take a sedative. Shell refused the sedative and was told that if
he did not take it, he would have to leave the Access Center. Shell
informed the social worker that, given this condition for
health care provided. See id. ¶ 67 (noting that “once we determine
that ‘health care’ was rendered,” we then proceed to determine
whether the “patient’s injuries . . . relate[d] to or ar[o]se out of the
health care rendered”) (quotation simplified).
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Shell v. Intermountain Health Services
treatment, he would like to leave. After an unsuccessful attempt
to contact his girlfriend for a ride home, Shell discussed the
situation with the social worker in the doorway of the
examination room, but the social worker still “refused to provide
treatment unless Shell took a sedative.” It was at this point that
the violence ensued and Shell sustained his injuries.
¶21 In summary, Shell sought treatment but when Shell
refused the treatment offered by the social worker, and the social
worker refused to provide an alternative treatment as Shell
requested, no medical care ensued. There was therefore no
“treatment” by the Access Center’s employees “for, to, or on
behalf of [Shell].” See Utah Code Ann. § 78B-3-403(10). As a
consequence, Ete and Alkire’s actions in assaulting and pinning
Shell to the ground in a violent manner could likewise not be
considered health care. See Scott v. Wingate Wilderness Therapy,
LLC, 2021 UT 28, ¶ 29, 493 P.3d 592 (“Actions a health care
provider takes are not health care if they are not for, to, or on
behalf of a patient.”) (quotation simplified).
¶22 Additionally, Shell’s injuries could not have occurred
“during [Shell’s] medical care, treatment, or confinement,” see
Utah Code Ann. § 78B-3-403(10) (emphasis added), because he
did not undergo treatment at any point, given the impasse on the
sedation requirement and given that he had not been confined or
admitted to the Access Center when Ete and Alkire confronted
and eventually injured him. In fact, the social worker and Shell
were looking for a way to contact Shell’s girlfriend so that he
could leave the Access Center. And when the two security guards
approached, Shell was standing in the doorway of the
examination room talking with the social worker and was still
refusing to take the sedative, and the social worker was still
refusing to treat Shell given his refusal. Thus, the injuries Shell
sustained were not “during . . . medical care, treatment, or
confinement.” See id.
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Shell v. Intermountain Health Services
¶23 Appellees resist this conclusion, arguing that “Shell sought
medical treatment from the Access Center” and that “[t]he injuries
he sustained were directly related to and arose from the health
care he sought at the Access Center.” We disagree. Appellees’
argument does not comport with the plain language of the Act.
The Act specifically directs that for a plaintiff’s claims to fall under
the Act’s purview, the plaintiff’s injuries must have arisen from
actions taken “for, to, or on behalf of a patient during the patient’s
medical care, treatment, or confinement.” Id. Thus, merely seeking
treatment is not enough; there must be something done, or
something that should have been done, by a provider, specifically
on the patient’s behalf. See Scott, 2021 UT 28, ¶ 36 (“Determining
whether an act was done ‘for, to, or on behalf of a patient during
the patient’s medical care [or] treatment’ requires examining the
scope of the care or treatment that the health care provider
prescribed, ordered, or designed for the patient. It also requires
examining whether the act from which the injury arose occurred
during that treatment or care—that is, whether that act occurred
‘in the course of’ the treatment.”) (alteration and emphasis in
original) (quotation simplified). Accordingly, Shell’s act of
seeking medical care does not equate to health care under the Act
because nothing was done for Shell on his behalf by IHC’s staff.
On the contrary, IHC declined to provide the care Shell sought
because Shell would not agree to be sedated first.
CONCLUSION
¶24 Because Shell did not receive health care as defined in the
Act, Shell was not required to comply with the Act’s pre-litigation
requirements in bringing claims against Appellees. The district
court erred in concluding otherwise. We reverse the dismissal of
Shell’s complaint and remand for such further proceedings as
may now be in order.
20200915-CA 11 2022 UT App 70