Schleger v. State

2018 UT App 84
20160775-CA 	1 	2018 UT App 84
THE UTAH COURT OF APPEALS
GARY S CHLEGER AND P AMELA S CHLEGER ,
Appellants,
v.
S TATE OF U TAH AND U TAH S TATE HOSPITAL,
Appellees.
Opinion
No. 20160775-CA
Filed May 3, 2018
Fourth District Court, Spanish Fork Department
The Honorable M. James Brady
No. 160300033
George L. Chingas Jr., Attorney for Appellants
Sean D. Reyes and Peggy E. Stone, Attorneys
for Appellees
JUDGE GREGORY K. O RME authored this Opinion, in which JUDGES
K ATE A. TOOMEY and R YAN M. HARRIS concurred.
ORME, Judge:
¶1 	Gary and Pamela Schleger appeal the district court’s
decision dismissing their medical malpractice and wrongful
death action against the State and the Utah State Hospital
(collectively, the State). The court concluded that, while the
Schlegers 	had 	successfully 	complied 	with 	the 	prelitigation
claims-review requirements of the Utah Health Care Malpractice
Act (the HCMA), their suit was nevertheless time-barred under
the 	Governmental 	Immunity 	Act 	of 	Utah 	(the 	GIA). 	The
Schlegers maintain that the court erred in its interpretation of the
applicable statutes. We disagree and therefore affirm.

Schleger v. State
20160775-CA 	2 	2018 UT App 84
BACKGROUND
¶2 	This appeal comes to us in the wake of the tragic events
surrounding the death of the Schlegers’ twenty-nine-year-old
daughter (Decedent). In May 2013, after a long battle with
mental illness, Decedent was admitted to the Utah State Hospital
for long-term inpatient treatment. Upon her arrival, she was
immediately 	placed 	on 	suicide 	watch. 	Soon 	thereafter,
Decedent’s roommate alerted hospital staff that Decedent had
begun making strange noises. Rushing into Decedent’s room,
staff members found her sitting next to her bed, with shoelaces
wrapped tightly around her neck. Although staff members acted
quickly 	in 	an 	attempt 	to 	save 	her, 	she 	had 	already 	lost
consciousness by the time they managed to cut the laces off.
Sadly, after spending three days on life support, Decedent was
pronounced dead.
¶3 	Following Decedent’s death, the Schlegers decided to
assert claims against 	the State for medical malpractice and
wrongful death. Given that they wished to pursue a lawsuit
against the government, however, they could not file their action
without first satisfying certain procedural prerequisites arising
under the GIA. Thus, consistent with section 63G-7-401 of the
GIA, the Schlegers served a notice of their claims on the Utah
Attorney General1 on May 21, 2014, the last possible day in the
one-year period in which they could do so. When the State failed
to respond by July 20, 2014, the Schlegers’ claims were deemed
denied 	by 	operation 	of 	statute.2 	See 	Utah 	Code 	Ann.
1. See Utah Code Ann. § 63G-7-401(3)(b)(ii)(E) (LexisNexis 2016)
(“The notice of claim shall be . . . directed and delivered . . . to
the office of . . . the attorney general, when the claim is against
the state[.]”).
2. The State’s failure to respond does not accord with best
practices. As a matter of common courtesy, the Schlegers were
(continued…)

Schleger v. State
20160775-CA 	3 	2018 UT App 84
§ 63G-7-403(1)(b) (LexisNexis 2016). At that point, barring a
tolling of the GIA’s limitations period, the Schlegers had one
year in which to commence their action against the State lest
they lose their right to sue. See id. § 63G-7-403(2)(b).
¶4 	But as of late July 2014, the Schlegers still had several
procedural hurdles to surmount before they could file suit.
Specifically, because they sought to assert claims for medical
malpractice, they were required to comply with the prelitigation
claims-review requirements set out in the HCMA. They did not
begin this process until May 19, 2015—some ten months after the
State was deemed to have denied their claims—when they
served the State with a notice of their intent to sue for medical
malpractice. See id. § 78B-3-412(1)(a) (LexisNexis 2012). Several
weeks later, on July 17, 2015, the Schlegers took the next step in
the claims-review process by submitting a formal request for
prelitigation panel review to the Utah Division of Occupational
and 	Professional 	Licensing 	(the 	Division). 	See 	id.
§ 78B-3-416(2)(a). On January 6, 2016, the Division provided the
Schlegers 	with 	a 	certificate 	of 	compliance. 	See 	id. 	§ 	78B-3-
418(1)(a)–(b). With that, the Division documented that it had
finished 	its 	review 	and 	that 	the 	HCMA’s 	prelitigation
(…continued)
owed some response to their notice of claim, if only to explain
that the State did not accept responsibility for Decedent’s death.
And good manners aside, the Utah Legislature mandates that,
“[w]ithin 	60 	days 	of 	the 	filing 	of 	a 	notice 	of 	claim, 	the
governmental entity or its insurance carrier shall inform the
claimant in writing that the claim has either been approved or
denied.” Id. § 63G-7-403(1)(a) (emphasis added). The need for
recourse to subsection (1)(b), which provides that the claim will
be deemed denied if the government or its insurer “has failed to
approve or deny the claim” within 60 days, id. § 63G-7-403(1)(b)
(emphasis added), should be a rarity and not the norm.

Schleger v. State
20160775-CA 	4 	2018 UT App 84
claims-review process was complete, leaving the Schlegers free
to sue on their malpractice claim.
¶5 	The Schlegers then brought this action in district court, see
id. § 78B-3-412(1)(b), nearly two months later, on March 4, 2016.
In response, the State filed a motion to dismiss on the ground
that the Schlegers’ complaint was untimely under the GIA’s one-
year statute of limitations.3 After hearing oral argument on the
motion, the district court agreed with the State and dismissed
the Schlegers’ suit with prejudice. The Schlegers appeal.
ISSUE AND STANDARD OF REVIEW
¶6 	The 	Schlegers 	argue 	that 	the 	district 	court 	erred 	in
concluding that the GIA’s one-year statute of limitations is not
subject to the HCMA’s provision for tolling limitations statutes
during 	the 	prelitigation 	claims-review 	process. 	“Issues 	of
statutory interpretation are questions of law that we review for
correctness,” without according deference to the district court’s
decision. In re R.B.F.S., 2012 UT App 132, ¶ 10, 278 P.3d 143
(citation and internal quotation marks omitted).
3. In a sense, there are two limitations periods under the GIA.
A claimant has one year in which to file her notice of claim. See
id. § 63G-7-402. She then has another year from the time the
claim is denied (or deemed denied) in which to bring suit. See id.
§ 63G-7-403(2)(b). It is undisputed that the Schlegers filed their
notice of claim just before the first limitations period expired.
The question to be decided is whether, in bringing their suit well
beyond one year from when their claim was deemed denied, the
Schlegers’ suit was barred by the GIA’s statute of limitations.

Schleger v. State
20160775-CA 	5 	2018 UT App 84
ANALYSIS
¶7 	The Schlegers contend that the GIA’s one-year statute of
limitations was tolled while the HCMA’s prelitigation claims-
review process was underway. We agree with the district court
that 	the 	limitations 	period 	continued 	to 	run 	and 	that 	the
Schlegers’ suit was therefore barred by the GIA’s statute of
limitations.
¶8 	“[T]he law of sovereign immunity is set forth in the
Governmental Immunity Act.” Craig v. Provo City, 2016 UT 40,
¶ 14, 	389 	P.3d 	423. 	The 	GIA 	“governs 	all 	claims 	against
governmental 	entities 	or 	against 	their 	employees 	or 	agents
arising out of the performance of the employee’s duties, within
the scope of employment, or under color of authority.” Utah
Code 	Ann. 	§ 	63G-7-101(2)(b) 	(LexisNexis 	2016). 	“A
governmental entity and an employee of a governmental entity
retain 	immunity 	from 	suit 	unless 	that 	immunity 	has 	been
expressly waived in” the GIA. Id. § 63G-7-101(3).
¶9 	Most relevant here, the GIA also includes a “statute of
limitations for ‘institut[ing] an action in the district court’ against
the government.” Craig, 2016 UT 40, ¶ 16 (alteration in original)
(quoting Utah Code Ann. § 63G-7-403(2)(a)). A litigant wishing
to sue a governmental entity must begin by “fil[ing] a written
notice of claim with the entity,” see Utah Code Ann. § 63G-7-
401(2) 	(LexisNexis 	2016), 	and 	under 	the 	GIA’s 	statute 	of
limitations, the claim becomes time-barred unless it is filed in the
district court “within one year after [the entity’s] denial of the
claim or within one year after the denial period . . . has expired,”
id. § 63G-7-403(2)(b). “A claim is considered to be denied if, at
the end of the 60-day period [following the filing of the notice of
claim], the governmental entity or its insurance carrier has failed
to approve or deny the claim.” Id. § 63G-7-403(1)(b).
¶10 	The Schlegers do not dispute that, read in isolation, the
GIA stands as a bar to their suit. Nevertheless, they maintain

Schleger v. State
20160775-CA 	6 	2018 UT App 84
that their action should be allowed to proceed because the GIA’s
statute of limitations must be read in conjunction with the tolling
provision set out in the HCMA. That provision states that “[t]he
filing of a request for prelitigation panel review . . . tolls the
applicable statute of limitations until . . . 60 days following the
Division’s issuance of . . . (A) an opinion by the prelitigation
panel . . . or (B) a certificate of compliance[.]” Id. § 78B-3-
416(3)(a)(i) (LexisNexis 2012). To conclude that the GIA’s statute
of limitations is not subject to this provision would lead to an
absurd 	result, 	they 	argue, 	because 	it 	would 	otherwise 	be
“impossible” for litigants in their situation “to comply with both
[the GIA and the HCMA] at the same time.”
¶11 	The question before us is one of statutory interpretation.
“When interpreting statutes, our primary goal is to evince the
true 	intent 	and 	purpose 	of 	the 	Legislature.” 	State 	v. 	Tooele
County, 2002 UT 8, ¶ 10, 44 P.3d 680 (citation and internal
quotation marks omitted). And “[t]o discern the legislature’s
intent and purpose, we look first to the best evidence of a
statute’s meaning, the plain language of the act.” Id. (citation and
internal quotation marks omitted).
¶12 	Upon examining the plain language of the HCMA, it is
clear that the Legislature did not intend to deprive the State of
the benefit of the GIA’s one-year limitations period when it
enacted the HCMA. Indeed, the HCMA contains a provision that
speaks directly to the issue. Section 78B-3-415 of the HCMA
provides that “[t]his part may not [4] affect the requirements for
4. The Schlegers contend that the Legislature’s decision to use
the phrase “may not,” as opposed to “shall not,” is significant.
Pointing out that the word “may” is permissive in nature, they
maintain 	that 	the 	word’s 	presence 	here 	indicates 	that 	the
provision was not intended to apply categorically; rather, they
argue, the language of the provision allows courts to determine
(continued…)

Schleger v. State
20160775-CA 	7 	2018 UT App 84
filing notices of claims . . . [or] times for commencing actions . . .
under the Utah Governmental Immunity Act.” Utah Code Ann.
§ 	78B-3-415 	(LexisNexis 	2012). 	Given 	this 	unambiguous
language, the task of discerning legislative intent in this case is
straightforward.
¶13 	To be sure, under the regime created by the GIA’s and the
HCMA’s statutory schemes, litigants seeking to assert medical
malpractice claims against a governmental entity have a short
window in which to satisfy the conditions precedent to filing
suit. Nevertheless, by proceeding diligently and planning ahead,
it is not impossible for litigants in the Schlegers’ position to
overcome the procedural challenges they face.
¶14 	To demonstrate, we offer the following timeline, which
assumes that the Schlegers were obliged to proceed as they did,
sequentially, 	with 	the 	GIA-required 	claim 	first 	and 	the
HCMA-required notice and request tendered only after the
notice of claim was denied.5 As we have explained, under the
(…continued)
on “a case by case basis” whether the HCMA modifies the notice
or 	timeliness 	requirements 	of 	the 	GIA. 	Their 	argument 	is
unavailing, 	especially 	because 	the 	rules 	of 	construction
contained in the Utah Code expressly state that “‘[m]ay not’
means that an action is not authorized and is prohibited.” Id.
§ 68-3-12(1)(h).
5. We are far from certain that this sequential process is required.
Both 	the 	GIA 	and 	the 	HCMA 	require 	pre-suit 	actions, 	but
nothing in either statute leads us to believe that the GIA notice of
claim must precede the HCMA-required filings. If both pre-suit
requirements can be pursued simultaneously, with appropriate
transparency and cross-referencing, then the ability to hold the
sovereign responsible for its medical malpractice is even less
(continued…)

Schleger v. State
20160775-CA 	8 	2018 UT App 84
GIA’s statute of limitations a claimant has one year following the
government’s denial of her claim in which to file her complaint.
See Utah Code Ann. § 63G-7-403(2)(b) (LexisNexis 2016). Thus,
assuming she does not begin the process of complying with the
HCMA until after the government denies her claim, the claimant
has 	one 	year 	from 	the 	denial 	date 	to 	satisfy 	the 	HCMA’s
conditions precedent to suit. To comply with these conditions,
the claimant must (1) “give[] the prospective defendant . . . at
least 90 days’ prior notice of intent to commence an action,” id.
§ 78B-3-412(1)(a) 	(LexisNexis 	2012); 	(2) 	“file 	a 	request 	for
prelitigation 	panel 	review 	with 	the 	division,” 	id. 	§ 	78B-3-
416(2)(a); and (3) “receive[] a certificate of compliance from the
division,” id. § 78B-3-412(1)(b). Once the claimant has filed her
panel-review 	request, 	the 	“division 	shall 	. 	. 	. 	complete 	a
prelitigation hearing . . . within . . . 180 days,” id. § 78B-3-
416(3)(b)(ii)(A),6 and “[t]he panel shall render its opinion in
(…continued)
problematic, 	as 	illustrated 	in 	the 	first 	column 	of 	the 	chart
appended to this opinion. Indeed, at oral argument counsel for
the State represented that simultaneous pursuit in such cases is
not only a theoretical possibility; it is the norm.
6. 	The 	HCMA 	also 	provides 	avenues 	for 	bypassing 	the
prelitigation 	hearing 	requirement 	when 	“the 	prelitigation
hearing has not been completed within” the prescribed 180-day
period. See Utah Code Ann. § 78B-3-416(3)(c) (LexisNexis 2012).
For instance, when a claimant believes “that the respondent
[healthcare 	provider] 	has 	failed 	to 	reasonably 	cooperate 	in
scheduling the hearing,” she may “file an affidavit with the
division” alleging facts to that effect. Id. § 78B-3-416(3)(c)(ii). “If
the 	claimant 	files 	an 	affidavit” 	in 	accordance 	with 	that
procedure, “within 15 days . . . the division shall determine
whether . . . the respondent . . . failed to reasonably cooperate[.]”
Id. § 78B-3-416(3)(d)(i). Finally, “if the determination is that the
(continued…)

Schleger v. State
20160775-CA 	9 	2018 UT App 84
writing not later than 30 days after the end of the proceedings,”
id. § 78B-3-418(2)(a). If the panel determines that the claims are
meritorious, “[t]he division shall issue a certificate of compliance
to the claimant.” Id. § 78B-3-418(3)(a). Thus, if a claimant begins
the process of satisfying the HCMA’s conditions precedent on
the day after the government denies her notice of claim, she can
complete that process in 210 days, with some time to spare
before the GIA’s one-year limitations period expires.7
¶15 	We recognize that the timeline we have outlined is a
daunting 	one, 	allowing 	little 	room 	for 	delay 	and 	minimal
opportunity for reflection or consultation. But given section
78B-3-415’s clear statement that no provision in the HCMA may
be construed to affect the GIA’s timeliness rules, we can only
conclude that this was the intent of the Legislature, harsh though
the result may seem in this case. That said, the Schlegers waited
almost an entire year after the State denied their notice of claim
before submitting a request to the Division for a prelitigation
panel review. Because we are bound to give effect to the plain
meaning of the Legislature’s enactments, we are powerless to
rescue the Schlegers from the consequences of their decision to
proceed at an unhurried pace.8
(…continued)
respondent failed to reasonably cooperate in the scheduling of a
hearing, and the claimant did not fail to reasonably cooperate,
the 	division 	shall, 	issue 	a 	certificate 	of 	compliance 	for 	the
claimant[.]” Id. § 78B-3-416(3)(d)(ii)(A).
7. The second column in the chart contained in the appendix to
this opinion illustrates the timeline we have just explained.
8. 	The 	Schlegers 	also 	contend 	that 	if 	the 	GIA’s 	statute 	of
limitations is not subject to the HCMA’s tolling provision, then
the GIA’s application in their case violated the Open Courts
(continued…)

Schleger v. State
20160775-CA 	10 	2018 UT App 84
CONCLUSION
¶16 	For the foregoing reasons, we conclude that the GIA’s
statute 	of 	limitations 	is 	not 	subject 	to 	the 	HCMA’s 	tolling
provision. We therefore affirm the decision of the district court.
(…continued)
Clause 	of 	the 	Utah 	Constitution. 	However, 	the 	Schlegers
correctly point out that statutes that do not abrogate a previously
existing remedy are not unconstitutional under the Open Courts
Clause. See Petersen v. Utah Labor Comm’n, 2017 UT 87, ¶ 26. In
this case, the statutes in question did not abrogate a remedy;
instead, 	they 	merely 	imposed 	time 	deadlines 	within 	which
certain types of claims must be brought. Imposition of time
deadlines to bring a cause of action generally does not violate
the Open Courts Clause. See Payne v. Myers, 743 P.2d 186, 190
(Utah 1987). Indeed, we have concluded that the Schlegers were
not 	precluded 	from 	bringing 	suit 	had 	they 	been 	more
expeditious in pursuing their claim, and therefore the Schlegers’
arguments under the Open Courts Clause are without merit.

Schleger v. State
20160775-CA 	11 	2018 UT App 84
APPENDIX
The following chart contains three columns: Simultaneous
Compliance, 	Sequential 	Compliance, 	and 	The 	Schlegers. 	As
these titles imply, each column contains a timeline of actions
taken by, respectively, a litigant who complies with the GIA’s
and the HCMA’s requirements at the same time; a litigant who
complies 	with 	the 	GIA’s 	and 	the 	HCMA’s 	requirements
sequentially; and, finally, what the Schlegers actually did. While
we acknowledge that few actual litigants in the Schlegers’ shoes
are endowed with the powers of expeditiousness exhibited by
the litigants we have contrived for purposes of this chart, given
the realities of grieving, obtaining counsel, and deciding to bring
suit, 	our 	fictitious 	litigants 	nevertheless 	serve 	as 	a 	useful
demonstration of the timeframes actually available to litigants
confronted with the Schlegers’ basic situation.

2018 UT App 84
20160775-CA 	12 	2018 UT App 84
Days
Following
Allegedly
Wrongful
Death 	Simultaneous Compliance 	Sequential Compliance 	The Schlegers
1 	Litigant files GIA-Required
Notice of Claim
Litigant gives HCMA-
required 90 days’ notice of
intent to commence action;
Litigant files request for
prelitigation panel review
Litigant files GIA-
Required Notice of Claim
61 	State Denies GIA-Required
Notice of Claim by Failing
to Respond
State Denies GIA-
Required Notice of Claim
by Failing to Respond
62 	Litigant gives HCMA-
required 90 days’ notice of
intent to commence action;
Litigant files request for
prelitigation panel review
181 	Panel completes
prelitigation review hearing
211 	Panel provides certificate of
compliance
212 	Litigant files suit
242 	Panel completes
prelitigation review
hearing
272 	Panel provides certificate
of compliance
273 	Litigant files suit
365 	The Schlegers file
GIA-Required Notice
of Claim
(May 21, 2014)

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20160775-CA 	13 	2018 UT App 84
Days
Following
Allegedly
Wrongful
Death 	Simultaneous Compliance 	Sequential Compliance 	The Schlegers
425 	State Denies GIA-
Required Notice of
Claim by Failing to
Respond
(July 20, 2014)
426 	Last Day to File Suit for
GIA Purposes
Last Day to File Suit for
GIA Purposes
724 	The Schlegers give
HCMA-required 90
days’ notice of their
intent to commence
action
(May 15, 2015)
787 	The Schlegers request
a prelitigation review
panel
(July 17, 2015)
790 	Last Day to File Suit
for GIA Purposes
(July 20, 2015)
960 	Panel provides
Schlegers with
certificate of
compliance
(January 6, 2016)
1018 	The Schlegers file
suit
(March 4, 2016)