Peng v. Meeks

This opinion is subject to revision before final
publication in the Pacific Reporter
2024 UT 5

IN THE

SUPREME COURT OF THE STATE OF UTAH

JENAFER BIRT MEEKS, individually and on behalf of the heirs
and estate of LILLIAN BIRT, deceased,
Appellee,
v.
WEI PENG, M.D., PhD and CHRISTINA G. RICHARDS, M.D., F.A.C.S.,
Appellants.

No. 20220815
Heard September 6, 2023
Filed February 15, 2024

On Direct Appeal

Third District, Salt Lake County
The Honorable Matthew Bates
No. 180902456

Attorneys:
Karra J. Porter, Anna P. Christiansen, Salt Lake City, for appellee
Troy L. Booher, Caroline A. Olsen, Taylor P. Webb, Salt Lake City,
for appellants

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

JUSTICE HAGEN, opinion of the Court:

INTRODUCTION
¶1 This medical malpractice case stems from the withdrawal
of life-sustaining treatment that resulted in the death of Lillian Birt.
While Ms. Birt was in the intensive care unit (ICU), her children
decided to discontinue life support based on their understanding
of conversations they had with their mother’s treating doctors
about her condition. The children believed that their mother’s
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condition was terminal and that the treatment was unnaturally
prolonging her life. But, in fact, their mother’s condition was not
terminal; there was a high likelihood that she would have
recovered if treatment had been continued.
¶2 After Ms. Birt died, her daughter, Jenafer Meeks, sued the
doctors for medical malpractice—individually, and on behalf of
Ms. Birt’s heirs and estate—alleging, in part, that the doctors did
not properly inform Ms. Birt’s children of their mother’s condition
before allowing them to request that her care be withdrawn. Ms.
Meeks sought damages for two different types of harm—harm
done to the heirs as a result of the death through a wrongful death
action and harm done to Ms. Birt before her death through a
survival action.
¶3 At trial, the district court informed the jury of the elements
of medical malpractice in instruction 23. That instruction, which
was based on the Model Utah Civil Jury Instructions, told the jury,
“Plaintiffs have the burden of proving two things: (1) a breach of
the standard of care and (2) that the breach was a cause of Plaintiffs’
injuries.” The doctors objected to instruction 23, arguing that it
failed to inform the jury that the plaintiff had the burden to prove
what standard of care applied in this situation. The district court
disagreed. It reasoned that by stating the plaintiff had to prove “a
breach of the standard of care,” the instruction implied that the jury
must first determine the standard of care.
¶4 The jury ultimately found that the doctors acted
negligently in connection with the withdrawal of care and awarded
damages to the heirs on the wrongful death claim and to the estate
on the survival claim. The doctors moved for judgment as a matter
of law on the estate’s survival claim, which was meant to
compensate the estate for the harm done to Ms. Birt before her
death due to the doctors’ negligence. The doctors argued, in part,
that Ms. Meeks did not provide any evidence allowing a jury to
reasonably infer that Ms. Birt had experienced pain and suffering
in the hours before her death. The district court denied the motion,
finding that the jury could use evidence of Ms. Birt’s experience
before doctors withdrew life-sustaining care to infer that she
experienced pain and suffering after that care was withdrawn.
¶5 The doctors raise two issues on appeal. First, they argue
that they are entitled to a new trial because instruction 23 did not
explicitly tell the jury that Ms. Meeks had the burden to prove the
standard of care. Second, the doctors argue that the district court

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erred when it declined to grant them judgment as a matter of law
on the survival claim because Ms. Meeks did not provide any
evidence that Ms. Birt experienced pain, suffering, or
inconvenience in the hours between the doctors’ negligence and
her death.
¶6 We hold that the district court correctly instructed the jury
that Ms. Meeks had the burden of proving the standard of care to
establish medical malpractice. But we hold that the court erred in
denying the doctors’ motion for judgment as a matter of law on the
survival claim. Ms. Meeks failed to provide evidence—medical or
otherwise—that Ms. Birt experienced pain, suffering, or
inconvenience during the period between the doctors’ negligence
and her death.
¶7 We affirm in part and reverse in part.
BACKGROUND 1
A. Ms. Birt’s Hospitalization
¶8 After experiencing complications from a surgery
performed by Dr. Christina Richards, Lillian Birt was diagnosed
with pneumonia and sepsis and was placed on life support. She
was later admitted to the ICU, where she was treated primarily by
Dr. Wei Peng.
¶9 Over the next several days, Ms. Birt remained on life
support because she was still suffering from respiratory failure,
septic shock, and decreased heart function.
¶10 A few days before Ms. Birt’s death, the hospital staff
conducted “weaning trials” to determine whether Ms. Birt could be
taken off the ventilator. During these weaning trials, the doctors
took Ms. Birt off sedatives and pain medication, woke her up, and
removed the ventilator to see if she could breathe on her own. Ms.
Meeks testified that during the weaning trials, the medical staff
“had to take her [mother] off what was keeping her asleep or not in
pain.” She described her mother’s experience this way: “She would
try to breathe. I don’t know if you’ve ever seen someone try to
breathe and they can’t. They’re writhing. I felt like she was in a lot
of pain, moaning and groaning.”

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1 “On appeal, we recite the facts from the record in the light most

favorable to the jury’s verdict.” Jensen v. IHC Hosps., Inc., 2003 UT
51, ¶ 3, 82 P.3d 1076 (cleaned up).

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¶11 Despite the negative prognosis and the failed weaning
trials, Ms. Birt was not terminal. Dr. Peng testified that she “had a
very good chance to return to another care facility if we [had kept]
going.” He estimated she had up to a twenty percent chance of
mortality. In other words, there was likely over an eighty percent
chance that she would have survived if care had been continued.
¶12 After discussing their mother’s condition with Dr. Peng,
Ms. Birt’s children understood that their mother would never come
off the ventilator. Ms. Meeks understood that Dr. Peng was
proposing two options: Ms. Birt could either undergo a
tracheostomy and spend the remainder of her life in a nursing
home or be taken off life support. Ms. Meeks “felt like [her mother]
was already gone. Like there wasn’t anything.” Dr. Peng did not
tell Ms. Meeks that her mother was improving or that she was likely
to recover. Likewise, Ms. Meeks’s brother understood that his
mother would be kept on a ventilator for ten to fourteen days and
then transferred to a long-term care facility where she would spend
her last days. No one told the children that their mother could have
a meaningful recovery and could potentially go home. And even
though both Dr. Richards and Dr. Peng knew that Ms. Birt had a
good chance of surviving, because they wanted to respect the
family’s wishes, they did not attempt to dissuade the children from
withdrawing care.
¶13 Reluctantly, the children agreed to withdraw Ms. Birt’s life
support. After his conversation with the children, Dr. Peng gave
Ms. Meeks a form to sign indicating that Ms. Birt’s condition was
“terminal” and that “[t]o continue providing life-saving
procedures would only serve to unnaturally prolong the moment
of death and unnaturally postpone or prolong the dying process.”
Dr. Richards, as the treating surgeon, also signed this consent form
asserting that continuing Ms. Birt’s treatment would unnaturally
prolong the dying process. Unbeknownst to the children, the
statements on the form were untrue.
¶14 Ms. Birt was taken off the ventilator but remained on
palliative care, including sedation and pain management.
According to Ms. Meeks, her mother made no effort to breathe after
care was withdrawn. She died eight hours after Ms. Meeks signed
the form to withdraw life-sustaining care.
B. The Trial
¶15 Ms. Meeks brought a lawsuit against the doctors on behalf
of her mother’s heirs and estate. The complaint alleged two causes

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of action seeking different types of damages that resulted from
alleged medical malpractice. The first, a wrongful death claim,
sought to recover damages incurred by the heirs as a result of Ms.
Birt’s death. The second, a survival claim, sought to recover
damages for the estate based on the harm suffered by Ms. Birt
before her death.2
¶16 Ms. Meeks’s theory at trial was that Dr. Peng and Dr.
Richards failed to properly inform the children that their mother
had a high likelihood of recovery and that the doctors failed to
dissuade the children from withdrawing care. The parties agreed
that the doctors had the duty to gain the family’s informed consent
before withdrawing care. However, the parties disagreed about
whether the standard of care required the doctors to take additional
steps to actively dissuade the family from choosing to withdraw
care because Ms. Birt had a high chance of surviving and making a
meaningful recovery. For example, Ms. Meeks argued that the
doctors had a duty to bring in others to communicate with the
family, to take the matter “to the ethics committee,” or to “say[] no
and go[] to court.”
¶17 In the end, the jury returned a verdict for Ms. Meeks on
both the wrongful death and survival claims. The jury awarded Ms.
Birt’s children $4 million for the wrongful death of their mother and
awarded the estate $1 million in noneconomic damages for Ms.
Birt’s pain and suffering before her death. After a motion from the
doctors, the district court reduced the noneconomic damages to
$450,000 in accordance with Utah Code section 78B-3-410(1)(d).
¶18 On appeal, the doctors contend that two errors occurred at
trial: (1) the district court incorrectly instructed the jury on the
elements of medical malpractice, and (2) the doctors were entitled
to judgment as a matter of law on the survival action.
1. Jury Instructions
¶19 To instruct the jury on the elements of medical
malpractice, Ms. Meeks proposed an instruction based on Model

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2 The complaint labeled the first cause of action as “Medical

Malpractice” and the second cause of action as “Survival Action -
UTAH CODE § 78B-3-107.” But both causes of action alleged medical
malpractice; the causes of action differed in the type of damages
sought. See infra ¶¶ 48–55.

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Utah Civil Jury Instruction CV301B. The proposed instruction read
as follows:
To establish that Defendants were at fault, Plaintiffs
have the burden of proving two things: (1) breach of
the standard of care and (2) that the breach was a
cause of Plaintiffs’ injuries.
The doctors opposed this instruction, arguing that it did not
properly inform the jury that the plaintiff had the burden to prove
the standard of care.
¶20 The district court denied the doctors’ request for a
replacement instruction. In relevant part, the court reasoned that
“by stating that the plaintiff has the burden of proving a breach of
the standard of care, it’s implicit that [the plaintiff] must, in fact,
prove what the standard of care is.” Accordingly, the court gave
Ms. Meeks’s proposed instruction as instruction 23.
¶21 Following the jury’s verdict, the doctors moved for a new
trial, renewing their argument that instruction 23 misstated the
law. Specifically, the doctors argued that because “standard of
care” was not listed as an independent element of medical
malpractice, the jury might not have understood that the plaintiff
had the burden to prove the standard of care.
¶22 The district court denied the doctors’ motion, concluding
that the jury instructions, read as a whole, implicitly informed the
jury that Ms. Meeks had the burden to prove the standard of care.
The court pointed to stipulated jury instructions 9 and 24 as aiding
the jury in understanding its duty regarding standard of care.
Instruction 9 defined the preponderance of the evidence standard
and instructed the jury that the party with the burden of proof must
“persuade you, by the evidence, that the fact is more likely to be
true than not true.” Instruction 24 informed the jury that it had “to
decide, based on the evidence, what the standard of care is.”
Instruction 24 also stated that it was the jury’s “responsibility to
determine the credibility of the experts and to resolve the dispute.”
The court reasoned instructions 9, 23, and 24, read together,
accurately informed the jury that the standard of care was a factual
determination left for it to resolve. Additionally, the court
concluded that even if instruction 23 was incorrect, it was harmless
because both sides had put forth evidence of the standard of care
and the jury simply had to decide which of the two competing
standards was more convincing. Therefore, the court denied the
motion for a new trial.

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2. Survival Action Damages
¶23 At the close of Ms. Meeks’s case-in-chief, the doctors
moved for a directed verdict with respect to the estate’s survival
claim. They argued that Ms. Meeks had provided insufficient
evidence that Ms. Birt experienced pain and suffering after the
withdrawal of care but before her death.
¶24 The court denied the doctors’ motion. It reasoned that the
jury could rely on evidence regarding the weaning trials to
conclude Ms. Birt “suffered during the period between which care
was withdrawn and she, in fact, passed.” The court ruled that “this
is not one of those cases where it takes medical expertise for the
jury to draw that connection” between the weaning trials and when
care was withdrawn. Because the jury heard testimony that the
family had watched Ms. Birt “struggling to breathe and that they
saw her experiencing pain” during the weaning trials, the court
concluded that there was evidence that could support a verdict
awarding general damages to the estate.
¶25 After the jury verdict, the doctors renewed their motion for
judgment as a matter of law on the survival claim, again arguing
that Ms. Meeks did not provide sufficient evidence that Ms. Birt
experienced pain and suffering between the withdrawal of care and
her death. Additionally, the doctors argued that Ms. Birt was
incapable of experiencing pain and suffering because she was
unconscious and on palliative care.
¶26 The district court denied the motion. The court stated that
because Ms. Meeks presented evidence that Ms. Birt was in pain
during the weaning trials, the jury could reasonably infer that Ms.
Birt experienced pain when she was taken off the ventilator for the
last time. Further, the court concluded that Utah law did not
require an injured person to be conscious to recover noneconomic
damages. Accordingly, the court upheld the jury’s verdict and
entered judgment, awarding the estate the statutory limit of
$450,000 in general damages.
ISSUES AND STANDARDS OF REVIEW
¶27 On appeal, the doctors raise two issues. First, they argue
that the district court did not correctly instruct the jury that the
plaintiff had the burden of proving the standard of care to establish
medical malpractice. “Claims of erroneous jury instructions
present questions of law that we review for correctness. We
therefore review the instructions given to the jury without

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deference to the trial court . . . .” Turner v. Univ. of Utah Hosps.
& Clinics, 2013 UT 52, ¶ 17, 310 P.3d 1212 (cleaned up).
¶28 Second, the doctors argue that the district court erred
when it denied their motions for judgment as a matter of law on the
survival claim. Specifically, they argue that Ms. Meeks did not
prove that Ms. Birt experienced (or was capable of experiencing)
pain and suffering between the time treatment was withdrawn and
her death. We review a district court’s denial of judgment as a
matter of law for correctness. UMIA Ins., Inc. v. Saltz, 2022 UT 21,
¶ 26, 515 P.3d 406. To prevail, the appellant must “demonstrate that
there was no basis in the evidence, including reasonable inferences
which could be drawn therefrom, to support the jury’s verdict.” Id.
(cleaned up).
ANALYSIS
¶29 This case involves two causes of action, both alleging that
the doctors committed medical malpractice in connection with the
withdrawal of life-sustaining care, which led to Ms. Birt’s death.
The first is a wrongful death claim brought on behalf of Ms. Birt’s
heirs for damages they suffered. The second is a survival claim
brought on behalf of the estate for the damages that Ms. Birt
incurred before her death.
¶30 On appeal, the doctors seek a new trial on both claims
because, they argue, the jury instructions incorrectly stated the
elements of medical malpractice. Specifically, the doctors argue
that jury instruction 23 did not properly inform the jury that Ms.
Meeks had the burden to prove the standard of care. In addition,
the doctors contend that they were entitled to judgment as a matter
of law on the survival claim. They argue that Ms. Meeks produced
no evidence to prove that her mother experienced pain and
suffering after life-sustaining treatment was withdrawn but before
she died.
¶31 We first analyze whether instruction 23 correctly informed
the jury that Ms. Meeks bore the burden to prove each element of
medical malpractice. We conclude that by instructing the jury that
the plaintiff had the burden to prove “a breach of the standard of
care,” the instruction implicitly required the jury to find that Ms.
Meeks proved both standard of care and breach. Next, we analyze
whether the district court erred in denying the doctors’ renewed
motion for judgment as a matter of law. Because we conclude that
Ms. Meeks presented insufficient evidence to prove that the
doctors’ negligence caused Ms. Birt to experience a diminished

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quality of life between the withdrawal of care and the time of her
death, the doctors are entitled to judgment as a matter of law on the
survival claim.
I. THE DISTRICT COURT DID NOT ERR IN INSTRUCTING THE JURY
ABOUT THE PLAINTIFF’S BURDEN OF PROOF
¶32 The doctors seek a new trial on both the wrongful death
and survival claims, arguing that the district court did not properly
instruct the jury on the elements of medical malpractice.
Specifically, the doctors contend that instruction 23 failed to
instruct the jury that Ms. Meeks bore the burden to prove the
standard of care. Ms. Meeks does not dispute that she had the
burden to prove the standard of care, but she argues that
instruction 23 adequately advised the jury of the correct legal
standard. According to Ms. Meeks, an instruction that the plaintiff
had the burden to prove “a breach of the standard of care”
necessarily meant Ms. Meeks could succeed only if she convinced
the jury of two things: (1) the standard of care, and (2) that the
standard of care was breached.
¶33 “We review challenges to jury instructions under a
correctness standard.” Child v. Gonda, 972 P.2d 425, 429 (Utah 1998)
(cleaned up). “When reviewing jury instructions, we must consider
the challenged instruction in context.” Gorostieta v. Parkinson, 2000
UT 99, ¶ 46, 17 P.3d 1110. And we “will affirm when the
instructions taken as a whole fairly instruct the jury on the law
applicable to the case.” 3 Jensen v. IHC Health Servs., Inc., 2020 UT 57,
¶ 27, 472 P.3d 935 (cleaned up).
¶34 To establish a claim of medical malpractice, a plaintiff has
the burden to prove four elements: “(1) the standard of care by
which the physician’s conduct is to be measured, (2) breach of that
standard by the physician, (3) injury that was proximately caused
by the physician’s negligence, and (4) damages.” Jensen v. IHC
Hosps., Inc., 2003 UT 51, ¶ 96, 82 P.3d 1076 (cleaned up). Instead of
laying out all four elements of medical malpractice, the district
court followed Model Utah Civil Jury Instruction CV301B, which
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3 Like the district court, Ms. Meeks also points to instructions 9

(defining preponderance of the evidence) and 24 (defining the
standard of care) and argues that when instructions 9, 23, and 24
are read together, they accurately state the law. Because we
conclude that instruction 23—read on its own—accurately reflects
the law, we have no need to consider instructions 9 and 24.

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collapses the first two elements into a single element and addresses
damages in a separate instruction. Following that model,
instruction 23 stated the elements of medical malpractice as
follows: “To establish that Defendants were at fault, Plaintiffs have
the burden of proving two things: (1) a breach of the standard of
care and (2) that the breach was a cause of Plaintiffs’ injuries.”
¶35 “Jury instructions require no particular form so long as
they accurately convey the law.” State v. Maama, 2015 UT App 234,
¶ 16, 359 P.3d 1266. We have never required jury instructions to
mirror the exact language on which they are based. For example,
“the rewording of a statute as a jury instruction is not error as long
as it does not change the essential meaning of the statute.”
Gorostieta, 2000 UT 99, ¶ 46. So long as they correctly state the law,
“the precise wording and specificity of jury instructions is left to
the sound discretion of the trial court.” State v. Salgado, 2018 UT
App 139, ¶ 24, 427 P.3d 1228 (cleaned up).
¶36 Here, the district court modeled instruction 23 on Model
Utah Jury Civil Instruction CV301B. Although the Model Utah Jury
Instructions (MUJI) provide guidance to attorneys and district
courts about how to instruct a jury, those instructions “are merely
advisory and do not necessarily represent correct statements of
Utah law.” Jones v. Cyprus Plateau Mining Corp., 944 P.2d 357, 359
(Utah 1997).
¶37 But we note that MUJI is not alone in recommending jury
instructions that collapse the first two elements of medical
malpractice. For example, one treatise recognizes that the plaintiff
bears the burden of proving standard of care, breach of the
standard of care, and causation, see 61 AM. JUR. 2D Physicians,
Surgeons, and Other Healers § 309 (2023), but recommends jury
instructions that combine the first two elements—“[t]hat the
defendant, in treating and caring for the plaintiff, failed to use
reasonable care or skill,” 19B AM. JUR. PLEADING & PRACTICE FORMS
Physicians, Surgeons, and Other Healers § 372 (2023). Arizona
similarly requires a plaintiff in a medical malpractice claim to prove
“the existence of a duty, a breach of that duty, causation, and
damages.” Seisinger v. Siebel, 203 P.3d 483, 492 (Ariz. 2009) (en
banc). However, the Arizona Pattern Jury Instructions also collapse
the first two elements, requiring the jury to find “medical
negligence” and defining that term as “the failure to comply with
the applicable standard of care.” REVISED ARIZ. JURY INSTRUCTIONS
(CIV.), Medical Negligence 1 (7th ed. 2020). While not dispositive,

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these examples illustrate that it is not uncommon for jury
instructions to combine what one might think of as separate
elements of a claim.
¶38 In the criminal context, our court of appeals has
recognized that jury instructions do not need to separately list each
subsidiary factual determination as a separate element to correctly
state the law. In State v. Beckering, 2015 UT App 53, 346 P.3d 672,
Beckering was charged with being a party to the intentional or
knowing aggravated abuse of a vulnerable adult. Id. ¶ 17.
Beckering argued that his attorney was ineffective for not
requesting jury instructions that listed “each discrete factual
inquiry as a separate element of [the] offense.” Id. ¶ 25. For
example, “the element asking the jury to determine whether he
‘cause[d] a vulnerable adult to suffer serious physical injury’
required the jury to make at least three subsidiary factual
determinations: (1) that Beckering caused an injury, (2) that the
injury was a serious physical injury, and (3) that the injured person
was a vulnerable adult.” Id. ¶ 24 (alteration in original). Beckering
argued that his counsel should have requested an instruction that
listed each of those subsidiary questions as “a separate factual
determination that the State needed to prove and the jury needed
to decide.” Id. ¶ 22.
¶39 The court of appeals concluded that there was “no
deficient performance by counsel in allowing the elements
instructions to present multiple factual determinations within
individual elements, because the instructions taken as a whole
fairly instruct the jury on the law applicable to the case.” Id. ¶ 27
(cleaned up). The authority Beckering cited did not suggest “that
elements must be presented to a jury in any particular form,” only
that each element must be proved to the jury beyond a reasonable
doubt. Id. ¶ 26. That requirement was satisfied because “[w]hen a
single element in a criminal-elements instruction contains multiple
factual determinations, the element implicitly requires the jury to
resolve each of those factual determinations.” Id. ¶ 24.
¶40 We agree with the reasoning in Beckering. So long as the
instruction requires the jury to find that the party with the burden
of proof has established each element, the elements do not need to
be presented in any particular form. An instruction may combine
more than one discrete factual inquiry into a single element if it
implicitly requires the jury to resolve each question in accordance
with the appropriate burden of proof.

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¶41 Here, instruction 23 informed the jury that the plaintiff had
the burden to prove “a breach of the standard of care.” That
instruction implicitly required the jury to determine whether Ms.
Meeks had established two subsidiary elements: (1) the applicable
standard of care, and (2) that the doctors breached that standard of
care. It is immaterial that those two sub-elements were not
separately numbered as discrete inquiries. A jury could not
determine whether Ms. Meeks had proved there was a breach of
the standard of care without first determining that she had proved
what standard of care applied.
¶42 As the facts of this case illustrate, a jury’s finding that the
plaintiff has proven a breach of the standard of care necessarily
encompasses a finding that the plaintiff has proven both the
applicable standard of care and that a breach occurred. At trial, Ms.
Meeks pointed to various acts or omissions to support her claim
that the doctors were negligent. Those acts or omissions fell within
one of two broad categories: that the doctors failed to fully inform
the family of Ms. Birt’s condition when obtaining their consent to
withdraw care, or that, afterwards, the doctors failed to take steps
to dissuade the family or override their decision. To find that the
doctors breached the standard of care by not fully informing the
family of Ms. Birt’s condition, the jury necessarily had to
determine, first, that the standard of care required the doctors to
convey certain information under the circumstances and, second,
that the doctors failed to provide that information. Similarly, to find
that the doctors breached the standard of care by not taking further
steps to dissuade the family or override their wishes, the jury
would first have to find that the standard of care applicable to Ms.
Birt’s situation required the doctors to take a particular step and
would then have to find that the doctors failed to do so. In other
words, the jury could not conclude that Ms. Meeks proved a breach
of the standard of care without finding that she proved both
subsidiary elements.
¶43 By instructing the jury that it was the plaintiff’s burden to
prove a breach of the standard of care, instruction 23 implicitly
required the jury to determine that Ms. Meeks proved both the
applicable standard of care and that the doctors breached that
standard. 4 Because the instruction conveyed that it was the
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4 Although we have determined that instruction 23 correctly

states the law, our holding does not prevent a party from
(continued . . .)

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plaintiff’s burden to prove the standard of care, it was a correct
statement of the law. 5 Therefore, the district court properly denied
the doctors’ motion for a new trial.
II. THE DISTRICT COURT ERRED IN GRANTING THE ESTATE
GENERAL DAMAGES ON THE SURVIVAL ACTION
¶44 In their second issue on appeal, the doctors argue that the
district court erred in denying their motions for judgment as a
matter of law on the survival claim. We will overturn the district
court’s decision “only if the appellant can demonstrate that there
was no basis in the evidence, including reasonable inferences
which could be drawn therefrom, to support the jury’s verdict.”
UMIA Ins., Inc. v. Saltz, 2022 UT 21, ¶ 26, 515 P.3d 406 (cleaned up).
¶45 The doctors argue that there was no basis in the evidence
from which a reasonable jury could conclude that Ms. Birt
experienced pain, suffering, or inconvenience between the time
life-sustaining care was withdrawn and the time of her death.
Additionally, they argue that Ms. Meeks was required—but
failed—to prove that Ms. Birt was consciously aware of any pain or
suffering she endured during that time.
¶46 In response, Ms. Meeks points to evidence that her mother
had “shown visible [signs of] distress” during prior attempts to
wean her from the ventilator. Ms. Meeks contends that the jury
could draw a reasonable inference that when life-sustaining care
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requesting an alternative instruction that lists each element
separately or that explicitly states the plaintiff’s burden to prove
each element by a preponderance of the evidence.
5 The doctors’ complaint that the instructions did not adequately

explain the plaintiff’s burden of proof might have been better
directed at jury instruction 24, which reflected the definition of
standard of care found in MUJI CV301C. Without referencing the
burden of proof, instruction 24 told the jury that the parties’ “expert
witnesses may disagree as to what the standard of care is and what
it requires” and that it was the jury’s “responsibility to determine
the credibility of the experts and to resolve the dispute.” But both
sides stipulated to that instruction. Because the doctors did not
challenge jury instruction 24, its correctness is not before us.
Nonetheless, we recommend that the Committee on the Civil MUJI
consider whether MUJI CV301C should be modified to clearly set
forth the burden of proof.

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was withdrawn, her mother’s “body suffered the same traumatic
effects that caused her to moan and writhe each time before.” But,
in Ms. Meeks’s view, general damages are not limited to the pain,
suffering, and inconvenience suffered by Ms. Birt between the time
of the negligence and the time of her death. Ms. Meeks argues that
the estate is “entitled to compensation for the difference between
what life would have been like for [Ms. Birt] without the
negligence, and what it was like because of the negligence.” Ms.
Meeks posits that, without the negligence, Ms. Birt “would have
recovered, gone home, spent time with her children, played with
her grandchildren—had a ‘good life.’” But because of the
negligence, “[s]he had no abilities, no joys, no opportunities, no life
expectancy.”
¶47 We conclude that the district court erred in denying the
motions for judgment as a matter of law because there was no
evidence to support an award of damages to the estate on the
survival claim. We first clarify that the estate was entitled to recover
damages only for Ms. Birt’s pain, suffering, and inconvenience
suffered between the time of the negligence and the time of her
death. We then examine the evidence of what occurred during
those eight hours and conclude that it does not support a
reasonable inference that Ms. Birt experienced pain, suffering, or
inconvenience during the relevant time frame.
A. The Estate Can Recover Only for Harms Suffered During
Ms. Birt’s Life
¶48 This medical malpractice case involves two claims: a
wrongful death claim brought on behalf of Ms. Birt’s heirs and a
survival claim brought on behalf of her estate. Survival claims and
wrongful death claims are separate causes of action meant to
redress different types of harm.
¶49 At common law, a cause of action for tort abated when the
tort victim died. See Meads v. Dibblee, 350 P.2d 853, 855 (Utah 1960).
In other words, once a tort victim died, the victim’s heirs or estate
could not recover damages for the tort. See id.; see also Dan B. Dobbs,
Wrongful Death and Survival Actions, in THE LAW OF TORTS § 372 (2d
ed. 2023). To remedy this inherent injustice, lawmakers in various
jurisdictions enacted laws that allow for two different causes of
action when a tort victim dies as a result of the tort: wrongful death
actions and survival actions. See, e.g., Kynaston v. United States, 717
F.2d 506, 511 (10th Cir. 1983).

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¶50 Wrongful death statutes create a new cause of action for
the survivors of the deceased, such as parents or heirs. See Meads,
350 P.2d at 855 & n.2. Wrongful death claims acknowledge that the
survivors “suffer a direct loss to themselves” when their loved one
dies from a wrongful act. Id. Accordingly, the damages recovered
in wrongful death actions are meant to compensate the harm done
to the survivors because of the death. Id. Damages in a wrongful
death suit include “[loss of] financial support furnished; loss of
affection, counsel, and advice; loss of deceased’s care and solicitude
for the welfare of the family; and loss of the comfort and pleasure
the family of [the] deceased would have received.” Est. of Faucheaux
v. City of Provo, 2019 UT 41, ¶ 11, 449 P.3d 112 (cleaned up); see also
Meads, 350 P.2d at 855 (“If the deceased is an adult, the spouse, or
children if any, are entitled to support, society, counsel and advice
and many other incidental benefits which they would have
received if [the deceased] had lived . . . .”).
¶51 While wrongful death statutes create a new cause of action
to compensate for the death itself, “[s]urvival statutes provide for
the continuance of an injured person’s cause of action in order to
preserve any interests which have accrued in the recovery of
damages to his estate should he die prior to the resolution of the
suit.” Est. of Berkemeir ex rel. Nielsen v. Hartford Ins. Co. of the Midwest,
2003 UT App 78, ¶ 13, 67 P.3d 1012 (cleaned up) aff’d, 2004 UT 104,
106 P.3d 700; accord Berrett v. Albertsons Inc., 2012 UT App 371, ¶ 45,
293 P.3d 1108. Put more simply, “[t]he injured party’s claim after
his death becomes a part of the estate, and the damages recoverable
are only those the injured person might have recovered had he
lived.” Kynaston, 717 F.2d at 511. In a survival action, the estate
stands in the place of the decedent to recover the damage done to
the decedent. Id. at 510. An award of damages “under a survival
statute has no effect upon the damages given under a [wrongful]
death statute, since the damages in the one case are based upon
events preceding death, while the damages under the other statute
are based upon harm caused by the death.” RESTATEMENT (SECOND)
OF TORTS § 925 cmt. I (AM. L. INST. 1979).

¶52 Like other jurisdictions, the Utah Legislature enacted
statutes that allow for both wrongful death claims, see UTAH CODE
§ 78B-3-106, and survival claims, see id. § 78B-3-107. Utah first
enacted a wrongful death statute through the territorial legislature
in 1888. Meads, 350 P.2d at 854 n.2. The current law states that
“when the death of a person is caused by the wrongful act or
neglect of another, his heirs, or his personal representatives for the

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benefit of his heirs, may maintain an action for damages against the
person causing the death.” UTAH CODE § 78B-3-106(1). Damages in
a wrongful death action “may be given as under all the
circumstances of the case may be just,” id. § 78B-3-106(4), for the
benefit of the deceased’s heirs, see id. § 78B-3-105; see also Faucheaux,
2019 UT 41, ¶¶ 10–11.
¶53 In contrast, the survival statute, in relevant part, prevents
an injured individual’s existing cause of action from abating upon
their death. UTAH CODE § 78B-3-107. When Utah enacted its first
survival statute, “[t]he purpose of the statute was not to create a
new cause of action as the wrongful death statute did, but rather to
abrogate the common law rule of abatement and continue or
perpetuate (‘survive’) a cause of action in existence before the
wrongdoer’s [or victim’s] death.” Berkemeir, 2003 UT App 78, ¶ 13
(second alteration in original) (quoting Kynaston, 717 F.2d at 509).
¶54 In a survival action, “the personal representatives or heirs
of the individual who died[] ha[ve] a cause of action against the
wrongdoer . . . for special and general damages.” UTAH CODE
§ 78B-3-107(1)(a). Special damages, which are sometimes referred
to as “specific” or “economic” damages, “measure harm that is
considered more finite, measurable, and economic because it is
more easily calculated in specific dollar amounts,” like medical or
other necessary care expenses. Sheppard v. Geneva Rock, 2021 UT 31,
¶ 17 n.5, 493 P.3d 632 (cleaned up). On the other hand, “[g]eneral
damages, which are sometimes referred to as ‘pain and suffering’
or ‘noneconomic’ damages, measure the amount needed to
compensate an individual for a ‘diminished capacity for the
enjoyment of life.’” Id. (cleaned up).
¶55 In this case, Ms. Meeks brought a wrongful death claim on
behalf of the heirs, seeking noneconomic damages to compensate
them for the loss they suffered due to their mother’s death. Ms.
Meeks also asserted a cause of action for medical malpractice on
behalf of the estate because, by virtue of the survival statute, that
claim did not abate upon her mother’s death. Through the survival
claim, the estate sought to “recover noneconomic losses to
compensate for pain, suffering, and inconvenience” to Ms. Birt as a
result of the alleged medical malpractice. See UTAH CODE § 78B-3-
410 (allowing an injured plaintiff to recover specified noneconomic
losses in a medical malpractice action subject to a statutory cap).
¶56 The jury awarded damages for both causes of action. On
the wrongful death claim, the jury awarded each of Ms. Birt’s two

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children $2 million in noneconomic damages associated with their
mother’s death, for a total award of $4 million. On the survival
claim, the jury awarded the estate $1 million in noneconomic
damages for the pain and suffering Ms. Birt experienced during the
eight hours between the medical malpractice and her death; that
award was reduced to $450,000 in accordance with the statutory
cap on damages in survival actions arising from medical
malpractice. 6
¶57 On appeal, the doctors do not challenge the sufficiency of
the evidence supporting the $4 million in damages awarded to the
children to compensate them for the loss of their mother. Instead,
the doctors challenge only the damages awarded to the estate on
the survival claim.
¶58 Ms. Meeks attempts to justify those damages, in part,
based on the consequences flowing from Ms. Birt’s death. Ms.
Meeks cites negligence cases in which we explain that “general
damages attempt to measure the difference between what life
would have been like without the harm done and what it is like as
a result of the harm.” Pinney v. Carrera, 2020 UT 43, ¶ 36, 469 P.3d
970 (cleaned up); see also Judd v. Drezga, 2004 UT 91, ¶ 4, 103 P.3d
135 (describing general damages as the “diminished capacity for
the enjoyment of life,” which is measured by “the difference
between what life would have been like without the harm done by
the medical professional, and what it is like with that additional
burden”). From this language, Ms. Meeks extrapolates that the
relevant comparison here is between the life that Ms. Birt would
have enjoyed absent the doctors’ negligence and the reality that she
did not survive to enjoy that life.

__________________________________________________________
6 If the survival action arises from medical malpractice, the
plaintiff’s damages are limited by Utah’s Malpractice Act. UTAH
CODE § 78B-3-410. The Act provides that “an injured plaintiff may
recover noneconomic losses to compensate for pain, suffering, and
inconvenience,” but “[t]he amount of damages awarded for
noneconomic loss may not exceed . . . $450,000.” Id. § 78B-3-410(1).
The statutory cap does not apply to wrongful death claims. Smith
v. United States, 2015 UT 68, ¶ 30, 356 P.3d 1249 (“We hold that the
damages cap in section 78B-3-410 of the Malpractice Act is
unconstitutional as applied to cases of wrongful death under article
XVI, section 5 of the Utah Constitution.”).

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¶59 But the cases Ms. Meeks cites are personal injury cases
brought by surviving tort victims. Consequently, those cases speak
in terms of comparing life without the negligence to life with the
negligence; they do not contemplate comparing life versus death to
assess general damages in a survival action. Because survival
statutes merely prevent the abatement of claims the injured
plaintiff could have brought if she had lived, the general rule is that
the estate can only recover for damages incurred between the time
of the negligence and the time of death. See, e.g., RESTATEMENT
(SECOND) OF TORTS § 926 cmt. a (AM. L. INST. 1979) (explaining that
in states that provide for separate survival and wrongful death
actions, survival statutes “are interpreted as giving to the
representative of the estate no more than the damages accruing
before the death”). Indeed, according to the doctors, “all but five
states prohibit” damages “to compensate the deceased for the
pleasure he would have taken from his life had he lived,” and the
five divergent states “do so only by statutory enactment.” (Quoting
Valenzuela v. City of Anaheim, 29 F.4th 1093, 1094, 1096 (9th Cir.
2022).) Ms. Meeks has not undertaken an analysis of Utah’s
survival statute to show that it deviates from the general rule that
an estate can recover only those damages suffered by a decedent
prior to death.
¶60 More fundamentally, Ms. Meeks cannot rely on Ms. Birt’s
lost enjoyment of life caused by her death when Ms. Meeks
stipulated to a jury instruction limiting the survival claim to pre-
death damages. In instruction 29, labeled “Survival Claim,” the
district court told the jury, “If you decide that [the doctors’] fault
was a cause of Ms. Birt’s harm, you must award non-economic
damages for the period of time that Ms. Birt lived after the injuries,
regardless of whether [the doctors’] fault caused the death.” All
parties stipulated to that instruction. Accordingly, to determine
whether the doctors were entitled to a directed verdict, we look
solely to whether the evidence supported a reasonable inference
that Ms. Birt suffered noneconomic damages during the eight
hours between the negligent withdrawal of life-sustaining care and
her death.
B. Ms. Meeks Offered No Evidence of Pain and Suffering During
the Relevant Time Frame
¶61 We next examine whether the evidence supported the
award of damages on the survival claim. The doctors contend that
the district court should have granted their motions for judgment

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as a matter of law on the survival claim because Ms. Meeks offered
no evidence to prove that her mother experienced pain and
suffering as a result of the doctors’ negligence. The doctors also
argue that a plaintiff must put on expert medical testimony to
prove that the injured person consciously experienced pain and
suffering to recover noneconomic damages.
¶62 A party is entitled to judgment as a matter of law if “a
reasonable jury would not have a legally sufficient evidentiary
basis to find for the party on that issue.” UTAH R. CIV. P. 50(a)(1).
We review the district court’s ruling on a motion for judgment as a
matter of law “for correctness, and in doing so accept as true all
testimony and reasonable inferences that support the jury’s
verdict.” Smith v. Volkswagen SouthTowne, Inc., 2022 UT 29, ¶ 38, 513
P.3d 729 (cleaned up). Accordingly, where the district court has
denied the motion, we will overturn that decision “only if the
appellant can demonstrate that there was no basis in the evidence,
including reasonable inferences which could be drawn therefrom,
to support the jury’s verdict.” UMIA Ins., Inc., 2022 UT 21, ¶ 26
(cleaned up).
¶63 After finding the doctors liable for medical malpractice,
the jury was charged with awarding “non-economic damages for
the period of time that Ms. Birt lived after the injuries.”
Noneconomic damages reflect “the difference between what life
would have been like without the harm done by the medical
professional, and what it [was] like with that additional burden.”
Judd, 2004 UT 91, ¶ 4. Put another way, the estate had to prove that
Ms. Birt’s quality of life was worse during the eight-hour period
before her death than it would have been in those same eight hours
had the doctors not withdrawn life-sustaining care.
¶64 But Ms. Meeks offered no direct evidence of what Ms. Birt
experienced in the eight-hour period before her death. She offered
no medical evidence that Ms. Birt was experiencing pain or
suffering in her final hours. And she offered no lay testimony about
any outward manifestations that might indicate Ms. Birt was
experiencing pain or suffering during that time.
¶65 Despite the lack of direct evidence, the district court
concluded that “there was some evidence” that Ms. Birt
experienced pain and suffering in the hours before her death.
Specifically, the district court cited evidence that a few days before
Ms. Birt’s death, “the hospital staff conducted ‘weaning trials’ to
attempt to get Ms. Birt off a ventilator.” Ms. Meeks testified that

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when the ventilator was removed in the weaning trials, her mother
“struggled to breathe.” Ms. Meeks testified about her mother’s
reaction in the weaning trials: “She would try to breath[e]. I don’t
know if you’ve ever seen someone try to breathe and they can’t.
They’re writhing. I felt like she was in a lot of pain, moaning and
groaning.” Ms. Meeks described her mother as “[f]ighting for
breath, moaning, not recognizing me. It seemed like she was in an
extreme amount of pain. Like it seemed it—it just seemed
excruciating to—what was happening to her.” Like the weaning
trials, the withdrawal of life-sustaining treatment also entailed
removing the ventilator, and Ms. Meeks testified that her mother
“couldn’t breathe on her own.” The court concluded that “a
reasonable jury could infer from [Ms. Meeks’s] earlier testimony
about the weaning trials that withdrawing care caused Ms. Birt to
suffer and experience discomfort.”
¶66 Reviewing the district court’s ruling for correctness, we
conclude that the evidence regarding the weaning trials did not
provide a legally sufficient evidentiary basis for the jury to award
noneconomic damages on the survival claim. Because the weaning
trials were conducted under different circumstances, that evidence
did not support a reasonable inference that withdrawal of life-
sustaining treatment affected Ms. Birt in a similar manner.
¶67 Ms. Meeks testified that, during the weaning trials, the
medical team took her mother off the medicines that were keeping
her sedated. She testified that “they had to take her off of what was
keeping her asleep or not in pain.” It was when those medications
were withdrawn that Ms. Birt struggled to breathe and appeared in
distress.
¶68 In contrast, when Ms. Birt was taken off the ventilator for
the final time, she remained on palliative care, which included
sedative medication and pain management specifically designed to
eliminate Ms. Birt’s discomfort. Ms. Meeks testified that, during the
weaning trials, Ms. Birt was “trying to breathe” and “fighting for
breath.” But when Ms. Meeks was asked whether her mother tried
to breathe when the doctors discontinued the ventilator for the final
time, she answered “no.”
¶69 Given the disparate circumstances under which the
weaning trials occurred and the absence of any evidence that Ms.
Birt suffered similar distress after life-sustaining treatment was
withdrawn, the jury could not have reasonably based its award of
noneconomic damages on the testimony cited by the district court.

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In the absence of other evidence, the jury lacked a legally sufficient
evidentiary basis to award damages on the survival claim. Because
the claim fails for lack of evidence, we need not decide whether the
survival statute permits recovery when the injured person is
unconscious during the relevant period. We also need not decide
whether expert testimony would be required to prove that an
unconscious person could experience pain, suffering, or
inconvenience. Here, no evidence whatsoever—expert or
otherwise—supported a finding that Ms. Birt’s quality of life was
worse during the relevant eight hours than it would have been
without the doctors’ negligence. As a result, we reverse the denial
of judgment as a matter of law on the survival claim.
CONCLUSION
¶70 We affirm the district court’s denial of a new trial because
the jury instructions correctly set forth the elements of a medical
malpractice claim. By instructing the jury that the plaintiff had the
burden to prove “breach of the standard of care,” the instructions
implicitly required the jury to find that Ms. Meeks had proved both
the relevant standard of care and that a breach had occurred.
¶71 However, we reverse the district court’s ruling denying
the doctors’ motions for judgment as a matter of law on the survival
claim. Ms. Meeks produced no evidence about what her mother
experienced in the hours before her death that could support an
award of noneconomic damages.
¶72 Affirmed in part and reversed in part.

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