Archuleta v. St. Mark's Hospital

2010 UT 36
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Tina Archuleta, 	Nos. 20080580
Plaintiff and Appellant, 	20080572
v.
F I L E D
St. Mark’s Hospital,
Defendant and Appellee. 	May 14, 2010
---
Third District, Salt Lake
The Honorable Pat B. Brian
No. 070911953
Attorneys: 	James R. Hasenyager, Peter W. Summerill, Ogden,
for plaintiff
Hugh C. Griffin, Mark A. Riekhof, Eric P. Schoonveld,
Salt Lake City, for defendant
Tawni J. Anderson, Paul M. Simmons, Salt Lake City,
for amicus curiae
---
DURHAM, Chief Justice:
INTRODUCTION
¶1 	In this case, the district court improperly dismissed
Tina Archuleta’s negligent credentialing claim against St. Mark’s
Hospital on statutory grounds. 	We agree with Ms. Archuleta’s
argument on direct appeal that the plain language of Utah Code
sections 58-13-5(7), 58-13-4, and 26-25-1 does not bar negligent
credentialing claims brought by patients against health care
providers. 	We reverse the district court’s dismissal of Ms.
Archuleta’s negligent credentialing claim and remand for further
proceedings consistent with this opinion.
BACKGROUND
¶2 	On August 4, 2005, Dr. R. Chad Halversen performed a
laparotomy surgery on Ms. Archuleta at St. Mark’s Hospital. 	Less
than two days after being discharged from St. Mark’s Hospital,

No. 20080580, 20080572 	2
Ms. Archuleta was admitted to McKay Dee Hospital complaining of
severe pain and complications from the surgery. 	Over the course
of the next year, physicians performed over six additional
corrective surgeries on her.
¶3 	Subsequently, Ms. Archuleta brought suit against Dr.
Halversen and St. Mark’s Hospital, among other defendants. 	In
her First Amended Complaint, she asserted that St. Mark’s
Hospital “failed to seek consult when appropriate, inadequately
trained healthcare provider employees, negligently credentialed
. . . [Dr.] Halversen and generally fell below the standard of
care with regard to Plaintiff Tina Archuleta.” 	St. Mark’s
Hospital moved to dismiss the negligent credentialing portion of
the complaint, asserting that Utah does not recognize a cause of
action for negligent credentialing.
¶4 	The district court determined that Utah Code sections
58-13-5(7), 58-13-4, and 26-25-1 each independently barred a
negligent credentialing cause of action. 	Accordingly, the court
dismissed Ms. Archuleta’s negligent credentialing claim. 	We have
jurisdiction to review the district court’s dismissal pursuant to
Utah Code section 78A-3-102(3)(j) (2008).
STANDARD OF REVIEW
¶5 	“[T]he purpose of a rule 12(b)(6) motion is to
challenge the formal sufficiency of the claim for relief, not to
establish the facts or resolve the merits of a case.” 	Whipple v.
Am. Fork Irrigation Co., 910 P.2d 1218, 1220 (Utah 1996).
Accordingly, a “12(b)(6) dismissal is a conclusion of law” that
“we review for correctness.” 	Id. 	“Also, ‘a matter of statutory
interpretation is a question of law that we review on appeal for
correctness.’” 	ABCO Enters. v. Utah State Tax Comm’n, 2009 UT
36, ¶ 7, 211 P.3d 382 (quoting MacFarlane v. Utah State Tax
Comm’n, 2006 UT 25, ¶ 9, 134 P.3d 1116) (alterations omitted).
ANALYSIS
¶6 	Because the district court dismissed Ms. Archuleta’s
negligent credentialing claim on statutory grounds, we examine
the three statutes on which the district court based its
decision. 	Since we determine that the plain language of the
statutes does not bar the negligent credentialing claim, we need
not address Ms. Archuleta’s constitutional arguments. 	We also
discuss our reasoning for recognizing a negligent credentialing
cause of action in Utah.

3 	No. 20080580, 20080572
I. 	THE PLAIN LANGUAGE OF UTAH CODE SECTION 58-13-5
DOES NOT BAR NEGLIGENT CREDENTIALING CLAIMS
¶7 	The plain language of Utah Code section 58-13-5 is
clear. 	Read as a whole and in harmony with related provisions
and chapters, it shows that the legislature did not intend to
immunize hospitals from negligent credentialing claims brought by
patients.
¶8 	When faced with a question of statutory interpretation,
“‘our primary goal is to evince the true intent and purpose of
the Legislature.’” 	Duke v. Graham, 2007 UT 31, ¶ 16, 158 P.3d
540 (quoting State v. Martinez, 2002 UT 80, ¶ 8, 52 P.3d 1276).
We do so by looking at the “best evidence of legislative intent,
namely, the plain language of the statute itself.” 	Id. (internal
quotation marks omitted). 	As part of this “well-worn canon[] of
statutory construction,” we must read the plain language of the
statute “as a whole.” 	Id. (internal quotation marks omitted).
Under this “whole statute” interpretation, State v. Maestas, 2002
UT 123, ¶ 54, 63 P.3d 621, we construe provisions “in harmony
with other provisions in the same statute and ‘with other
statutes under the same and related chapters.’” 	State v.
Schofield, 2002 UT 132, ¶ 8, 63 P.3d 667 (quoting Lyon v. Burton,
2000 UT 19, ¶ 17, 5 P.3d 616). 	“We do so because ‘[a] statute is
passed as a whole and not in parts or sections and is animated by
one general purpose and intent. 	Consequently, each part or
section should be construed in connection with every other part
or section so as to produce a harmonious whole.’” 	Sill v. Hart,
2007 UT 45, ¶ 7, 162 P.3d 1099 (quoting Maestas, 2002 UT 123,
¶ 54).
¶9 	Section 58-13-5 addresses the dissemination of health
care information. 	The statute compels a health care facility to
report certain events--such as termination of employment or
restrictions of privileges for cause, violations of professional
standards or ethics, and findings of incompetency--that affect a
licensed health care provider’s practice or status. 	See Utah
Code Ann. § 58-13-5(3)(a) - (h) (2007). 	To foster the
dissemination of this information, the legislature grants three
types of immunity. 	The first type is found in subsection 6(a),
which provides, “[a]ny person or organization furnishing
information in accordance with this section in response to the
request of the [Division of Occupational and Professional
Licensing] or a board, or voluntarily, is immune from liability
with respect to information provided in good faith and without
malice.” 	Id. § 58-13-5(6)(a). 	The second type is found in
subsection 6(b), which reads, “[t]he members of the board are
immune from liability for any decisions made or actions taken in

1 Utah Code section 26-25-3 (2007) provides that “[a]ll
information, interviews, reports, statements, memoranda, or other
data furnished by reason of this chapter, and any findings or
conclusions resulting from those studies are privileged
communications and are not subject to discovery, use, or receipt
in evidence in any legal proceeding of any kind or character.”
While this provision prevents a patient from introducing this
(continued...)
No. 20080580, 20080572 	4
response to information acquired by the board if those decisions
or actions are made in good faith and without malice.” 	Id. § 58-
13-5(6)(b). 	The third type exists under subsection 7, the
subsection at issue in this case. 	Subsection 7 states,
[a]n individual who is a member of a
hospital administration, board, committee,
department, medical staff, or professional
organization of health care providers is, and
any hospital, other health care entity, or
professional organization conducting or
sponsoring the review, immune from liability
arising from participation in a review of a
health care provider’s professional ethics,
medical competence, moral turpitude, or
substance abuse.
Id. § 58-13-5(7).
¶10 	By its purpose and plain language, section 58-13-5 is a
peer review statute. 	Indeed, this court has previously concluded
that the plain language of similar statutes “indicates that their
purpose is to protect health care providers who furnish
information regarding the quality of health care rendered by any
individual or facility.” 	Rees v. Intermountain Health Care,
Inc., 808 P.2d 1069, 1078 (Utah 1991). 	Likewise, under the plain
language of the statute, the legislature intended to immunize
three classes of individuals from negligent credentialing claims
brought by licensed health care providers--i.e., doctors.
Subsection 6(a) provides immunity to those who furnish the
information, subsection 6(b) shields those who make decisions in
response to the information, and subsection 7 immunizes those who
organize or sponsor the review of the information. 	This limited
immunity is guaranteed so long as the acts are done without
malice. 	See Utah Code Ann. § 58-13-5. 	In short, the immunity
contemplated under the statue operates between a doctor whose
credentials are under review and the suppliers of information and
decision makers; it does not contemplate immunity between a
patient and a hospital. 1

1 (...continued)
type of evidence in a negligent credentialing suit, there may
still be a question of fact whether hospital administrators
reasonably relied on the determination of the credentialing
committee given independently available information.
5 	No. 20080580, 20080572
II. 	THE PLAIN LANGUAGE OF UTAH CODE SECTION 58-13-4
DOES NOT BAR NEGLIGENT CREDENTIALING CLAIMS
¶11 	Utah Code section 58-13-4 grants immunity to health
care providers that sponsor or make decisions regarding the
proper use of facilities, the quality and cost of health care,
ethical standards, or performance of services. 	See Utah Code
Ann. § 58-13-4(2) (2007). 	The legislature, however, expressly
excepted patients’ claims regarding care. 	“This section does not
relieve any health care provider from liability incurred in
providing professional care and treatment to any patient.” 	Id.
§ 58-13-4(3).
¶12 	In its effort to discount the import of this exception,
St. Mark’s Hospital argues that “St. Mark’s is not sued . . . for
‘providing professional care and treatment’. . . . 	Instead, St.
Mark’s is sued for its credentialing decisions with regard to Dr.
Halversen prior to the time that Dr. Halversen provided the
‘professional care and treatment’ about which Plaintiff
complains. . . .” 	We reject this distinction. 	The credentialing
determination is a decision regarding a doctor’s fitness to
provide patient care--and is clearly covered by the language of
the exception that protects patients’ claims regarding provision
of that care. 	Ms. Archuleta’s negligent credentialing claim is
for alleged shortcomings in St. Mark’s Hospital’s review of Dr.
Halversen’s qualifications to provide treatment. 	Moreover, a
negligent credentialing claim is not solely based on the
qualifications of a health practitioner to provide treatment.
The claim must also assert the element of damages. 	These damages
arise from improper or substandard care. 	Claims of negligent
credentialing and care, in the patient context, are thus not
mutually exclusive.
¶13 	Any argument that the exception provided in 58-13-4(3)
should only apply to situations enumerated in that same section
is also unavailing. 	This contention ignores the overlapping
territory between St. Mark’s Hospital’s proposed broad reading of
section 58-13-5 immunity and situations enumerated in section 58-
13-4, which include: committee evaluations and determinations
regarding the quality of health care; whether provided health
care was necessary, appropriate or properly performed; ethical

2 This case was interpreting a previous version of the
statute, but the purpose remains the same.
No. 20080580, 20080572 	6
standards review; the diagnosis and treatment of patients within
the state; etc. 	Subsection 58-13-4(3) indicates the
legislature’s intent to protect a patient’s ability to recover
damages from health care providers, despite the immunities
provided. 	In discounting subsection 58-13-4(3), St. Mark’s
Hospital’s reading would give the exception no effect. 	This is
contrary to basic rules of statutory interpretation. 	See State
v. Jeffries, 2009 UT 57, ¶ 9, 217 P.3d 265 (“Statute[s] should be
construed . . . so that no part [or provision] will be
inoperative or superfluous, void or insignificant, and so that
one section will not destroy another.” 	(internal quotation marks
omitted)).
III. 	THE PLAIN LANGUAGE OF UTAH CODE SECTION 26-25-1
DOES NOT BAR NEGLIGENT CREDENTIALING CLAIMS
¶14 	Finally, Utah Code section 26-25-1 bolsters this plain
language reading of limited immunity. 	Section 26-25-1, similar
to sections 58-13-4 and 58-13-5, grants immunity for
“(a) providing information or material authorized in this
section; (b) releasing or publishing findings and conclusions of
groups referred to in this section to advance health research and
health education; or (c) releasing or publishing a summary of
these studies in accordance with this chapter.” 	Utah Code Ann.
§ 26-25-1(5) (2007). 	We have noted,
The purpose of th[is] statute[] is to
improve medical care by allowing health-care
personnel to reduce “morbidity or mortality”
and to provide information to evaluate and
improve “hospital and health care.” 	Without
the privilege, personnel might be reluctant
to give such information, and the accuracy of
the information and the effectiveness of the
studies would diminish greatly.
Benson v. I.H.C. Hosps., Inc., 866 P.2d 537, 539 (Utah 1993). 2
Again, under the plain language of this section, the
legislature’s grant of immunity relates to the dissemination of
information, not to patient care. 	Indeed, as the court of
appeals recognized, “the [statute] was never intended to shield
hospitals from potential liability or to provide hospitals
protection from medical malpractice claims.” 	Cannon v. Salt Lake
Reg’l Med. Ctr., Inc., 2005 UT App 352, ¶ 23, 121 P.3d 74.

7 	No. 20080580, 20080572
IV. 	NEGLIGENT CREDENTIALING IS A VALID CLAIM IN UTAH
¶15 	A “substantial majority of the other common law states”
recognize negligent credentialing as a viable claim. 	Larson v.
Wasemiller, 738 N.W.2d 300, 306-09 (Minn. 2007) (surveying states
that have adopted negligent credentialing claims and the legal
basis for the cause of action). 	We agree with the analysis that
negligent credentialing is “simply the application of broad
common law principles of negligence,” id. at 307, and is a
natural extension of torts such as negligent hiring. 	Id. at 308.
There are strong policy reasons for recognizing the cause of
action, including the foreseeability of harm to patients where
hospitals fail to properly investigate a doctor’s qualifications,
see Johnson v. Misericordia Cmty. Hosp., 301 N.W.2d 156, 164
(Wis. 1981), and the “‘superior position [of hospitals] to
monitor and control physician performance.’” 	Domingo v. Doe, 985
F. Supp. 1241, 1245 (D. Haw. 1997) (quoting Pedroza v. Bryant,
677 P.2d 166, 169 (Wash. 1984)). 	We therefore formally recognize
negligent credentialing as a valid common-law cause of action in
Utah.
CONCLUSION
¶16 	A comprehensive reading of section 58-13-5’s language,
in harmony with sections 58-13-4 and 26-25-1, demonstrates that
the legislature did not intend to immunize negligent
credentialing claims brought by patients. 	We also expressly hold
that negligent credentialing is a valid common-law cause of
action in Utah. 	We therefore reverse the district court’s
dismissal of the negligent credentialing claim and remand to the
district court for further proceedings consistent with this
opinion.
---
¶17 	Justice Parrish and Justice Nehring concur in Chief
Justice Durham’s opinion.
---
DURRANT, Associate Chief Justice, dissenting:
¶18 	I respectfully dissent. 	I agree in general with the
majority’s approach to statutory construction. 	I cannot agree
with its conclusions about the plain language of the relevant
statutory provisions or with its analysis of how these immunity
provisions interoperate with regard to the liability of health
care providers in Utah. 	Specifically, I disagree with the

1 The majority also concludes that the grants of immunity
found in Utah Code sections 58-13-4 and 26-25-1 do not shield
hospitals from negligent credentialing claims. 	Because I
conclude that section 58-13-5 would confer sufficient immunity to
shield St. Marks in this case, I do not address whether these
other statutory provisions also shield the hospital.
2 Utah Code Ann. § 58-13-5(7) (2007) (emphasis added). 	The
(continued...)
No. 20080580, 20080572 	8
majority’s conclusions about the operation of Utah Code section
58-13-5. 1 	Not only do I conclude that that statute’s plain
language reaches precisely the kind of claim advanced by Ms.
Archuleta, I also disagree with the majority’s reasons for
concluding that it should only apply in the context of peer
review. 	I believe that the majority’s interpretation of the
relevant statutes gives rise to inconsistencies between this
grant of immunity and other related statutory provisions.
¶19 	Ms. Archuleta also argues that the open courts and
uniform operation of laws clauses of the Utah Constitution bar
the legislature from enacting the kind of immunity asserted by
St. Mark’s in this case. 	Given that the majority holds that Ms.
Archuleta is not precluded from bringing her claim, it is
unnecessary for the majority to address these arguments. 	Because
I would interpret Utah Code section 58-13-5 to confer immunity on
St. Mark’s, I will also address the reasons I believe that the
legislature did not violate the Utah Constitution in conferring
this immunity.
I. 	THE LEGISLATURE HAS GRANTED HEALTH CARE PROVIDERS IMMUNITY
FROM CLAIMS FOR THE NEGLIGENT CREDENTIALING OF PHYSICIANS
¶20 	Of the three grants of immunity St. Mark’s invokes in
this case, the broadest is found at Utah Code section 58-13-5(7).
This section states that
(7) An individual who is a member of a
hospital administration, board, committee,
department, medical staff, or professional
organization of health care providers . . . ,
and any hospital, other health care entity,
or professional organization conducting or
sponsoring the review, [is] immune from
liability arising from participation in a
review of a health care provider’s
professional ethics, medical competence,
moral turpitude, or substance abuse.2

2 (...continued)
grant of immunity conferred by this statute in no way alters the
credentialing and licensing requirements imposed on hospitals and
physicians by the Utah Department of Health and the Division of
Professional Licensing. 	See Id. §§ 58-1-106, 58-67-201(3)(b)
(authorizing the Division of Professional Licensing to suspend or
revoke licenses of physicians engaged in unprofessional conduct);
Utah Admin. Code R. 432-2-9, -3-6 (requiring hospitals to adopt
review procedures approved by the Department of Health and
authorizing sanctions for hospitals that fail to comply).
3 Appellant Br. at 15 (quoting Restatement (Second) of Torts
§ 323 (1965)).
4 St. Mark’s concedes that if Ms. Archuleta could prove that
an agent or employee of St. Mark’s negligently provided care or
treatment, St. Mark’s could be held liable under traditional
principles of respondeat superior.
5 Utah Code section 26-49-204(1)(a) (Supp. 2009) defines
“credentialing” as “obtaining, verifying, and assessing the
qualifications of a health practitioner to provide treatment,
care, or services.” 	This definition, like the characterization
advanced by Ms. Archuleta, suggests that any claim for negligent
credentialing will fall squarely within the immunity contemplated
by section 58-13-5(7) as a “review of a health care provider’s
. . . medical competence.”
9 	No. 20080580, 20080572
The reviews described by section 58-13-5(7) constitute precisely
the sort of credentialing review for which Ms. Archuleta suggests
liability can be imposed. 	Specifically, Ms. Archuleta describes
the term “negligent credentialing” as a form of “short-hand” for
the breach of a duty that arises when a hospital
“undertakes . . . to render services to another which [it] should
recognize as necessary for the protection of the other.” 3 	Ms.
Archuleta does not claim that St. Mark’s is liable under the
doctrine of respondeat superior. 	That is, she does not contend
that Dr. Halversen was an employee of the hospital for whose
actions the hospital is vicariously liable. 	Rather, she claims
that St. Mark’s was independently negligent in permitting Dr.
Halversen to use its facilities. 4
¶21 	In other words, her allegation of negligent
credentialing is based on alleged shortcomings in the hospital’s
review of Dr. Halversen’s qualifications to provide treatment. 5
This is exactly the kind of liability that the plain language of
the statute addresses. 	Put differently, Ms. Archuleta seeks to
hold St. Mark’s liable for harms that allegedly arose “from

6 Id. § 58-13-5(6)(a).
7 Id. § 58-13-5(6)(b).
8 Supra ¶ 10.
No. 20080580, 20080572 	10
participation in a review of a health care provider’s . . .
medical competence.”
¶22 	Ms. Archuleta argues, and the majority concludes, that
section 58-13-5(7) grants immunity only from suits brought by
“fellow professionals” who were the subject of the credentialing
review. 	But this statute simply does not contain this
limitation. 	Section 58-13-5(7) broadly provides that individuals
“participat[ing] in a review of a health care provider’s . . .
medical competence” are “immune from liability.” 	Nothing in the
plain language of 58-13-5(7) suggests that the scope of immunity
granted is in any way dependent on who brings the suit.
¶23 	The majority does not explain how this statutory
language fails to reach the claims advanced by Ms. Archuleta.
Rather, the majority concludes that this language does not apply
to negligent credentialing claims because other portions of Utah
Code section 58-13-5 apply only in the context of peer review.
¶24 	In support of this argument, the majority refers to the
other two grants of immunity contained in this section. 	One of
these grants of immunity shields individuals who provide
information to the Division of Professional Licensing (“DOPL”). 6
The other grant of immunity shields members of a DOPL board from
suits based on “decisions made or actions taken in response to
information acquired by the board.” 7 	The majority states that,
because of the nature of these grants of immunity, the entire
section contemplates only immunity “between a doctor whose
credentials are under review and the suppliers of information and
decision makers; [not] immunity between a patient and a
hospital.” 8
¶25 	In my view, this conclusion regarding the scope of
subsection 58-13-5(7) simply does not follow from the majority’s
interpretation of subsections 58-13-5(6)(a) and (6)(b). 	First,
the majority’s analysis is based on an inference that is neither
apparent from, nor commanded by, the words of the statute.
Further, the majority’s conclusion depends on an extrapolation
that does not logically follow from that initial inference. 	The
majority has isolated subsections (6)(a) and (6)(b) of section
58-13-5 and reasoned that, because physicians are the likely
plaintiffs in the lawsuits contemplated by those subsections,
they are necessarily the only plaintiffs whose suits are

9 The activities for which immunity is granted are
(continued...)
11 	No. 20080580, 20080572
precluded by the section as a whole. 	But these subsections do
not contain any language that might limit them in this way, so
this inference is questionable.
¶26 	Regardless of the flaws in this initial premise, I do
not believe the next step in the majority’s reasoning withstands
scrutiny. 	Even if the grants of immunity in subsections (6)(a)
and (6)(b) should apply only to suits brought by physicians, the
grant of immunity relevant for purposes of this case--the
immunity set forth in subsection (7)--is directed at a different
class of activity. 	Subsections (6)(a) and (6)(b) address the
immunity enjoyed by DOPL board members and individuals who share
information with a DOPL board. 	They grant immunity for
“furnishing information” and for “decisions made or actions
taken.” 	They simply do not address the immunity that protects
hospitals from liability arising from “participation in a review
of a [physician’s] medical competence.” 	Instead, this immunity
is set forth in subsection (7). 	And although subsection (7) is
related to subsections (6)(a) and (6)(b), this fact does not
require that limitations from one subsection be applied to
another. 	That these different subsections address different
sorts of lawsuits and different categories of potential
defendants militates against such an assumption.
¶27 	The legislature separated the immunity contained in
subsection (7) from the immunity relevant to DOPL reviews set
forth in subsection (6). 	It used different operative language to
define its scope. 	It directed the grants of immunity at
different classes of potential defendants and different
categories of activity. 	Yet, regardless of these differences,
the majority urges that, simply because subsections (6)(a) and
(6)(b) apply only when physicians bring suit, subsection (7) must
necessarily be interpreted to contain a similar limitation. 	In
my opinion, this extrapolation is logically flawed and
inconsistent with the broad language used in subsection (7).
¶28 	Further, the lack of an express limitation on the scope
of immunity is important because related statutes make it clear
that similar limitations--when the legislature intends to create
them--are made explicit. 	For instance, section 58-13-3(3)
grants, to both hospitals and physicians, immunity that is
explicitly limited to “medical malpractice action[s].” 	Section
58-13-2.6(2)(a) grants similar immunity that is explicitly
limited to civil damages resulting from “assist[ing] governmental
agencies” with specific, enumerated health care activities. 9 	And

9 (...continued)
responding to state, local, or national health emergencies,
responding to threats of bioterrorism, responding to an epidemic,
or making a health care facility available for use in
distributing pharmaceuticals or administering vaccines. 	See Utah
Code Ann. § 58-13-2.6(2)(b).
10 See State v. Schofield, 2002 UT 132, ¶ 8, 63 P.3d 667
(internal quotation marks omitted).
11 Berneau v. Martino, 2009 UT 87, ¶ 12, 223 P.3d 1128
(internal quotation marks omitted).
No. 20080580, 20080572 	12
section 58-13-4(3), which grants immunity for decisions made by
certain peer review committees, limits that immunity by
explicitly excepting claims for “liability incurred in providing
professional care and treatment to any patient.”
¶29 	These sections make it clear that when the legislature
has intended to confine the immunity it creates it has done so
with statutory language limiting the scope of the immunity to
specific causes of action and factual scenarios. 	The absence of
any such language in section 58-13-5(7) is a strong indication
that the legislature intended to impose no limitations other than
those made explicit by the statutory language. 	This reinforces
what is plainly stated in this section--no liability may be
imposed on a hospital because of its participation in a review of
a physician’s medical competence.
¶30 	The majority limits these subsections to a narrow
subset of potential liability in an attempt to construe these
statutory provisions “in harmony with other provisions in the
same statute and with other statutes under the same and related
chapters.” 10 	However, the purpose for employing this canon of
construction is to “produce a harmonious whole.” 11 	In general, I
question the appropriateness of disregarding plain statutory
language in an attempt to construct a harmonious whole. 	But in
this case, I find it especially inapt because the majority’s
interpretation of the statute is inconsistent with other portions
of the code.
¶31 	First, although section 58-13-5 relates to liability
arising from information sharing and review of a physician’s
competence, the other provisions in this chapter of the Utah Code
set forth multiple grants of immunity related to other
activities. 	Some create immunity from liability for providing
charitable care while others create immunity from liability when

12 See Utah Code Ann. §§ 58-13-2 to -3.
13 Id. § 58-13-4(3).
14 Id. § 26-25-3 (2007).
15 Id. § 26-25-5.
13 	No. 20080580, 20080572
providing certain emergency services. 12 	Reading this chapter of
the Utah Code as a whole, the only valid bases I can find for
limiting the various kinds of immunity conferred are the bases
contained in the text. 	For example, section 58-13-4 creates
immunity for the work done by certain committees, and it contains
an exception for suits regarding “professional care and
treatment.” 13 	Unlike in section 58-13-5, the use of an explicit
exception indicates that the legislature specifically considered
whether the immunity provided would preclude suits by patients
and explicitly provided that it would not. 	Indeed, every other
grant of immunity in this chapter clearly contemplates suits by
patients. 	Under the majority’s interpretation, only in section
58-13-5 is it necessary to infer such a limitation from language
that is not included in the statute. 	Given the legislature’s
clear ability to craft these limitations when it so intends, I
would not construe the statute in a way that makes it necessary
to impose such a limitation in a section where the legislature
did not do so.
¶32 	Second, the majority’s interpretation of section 58-13-
5 is inconsistent with a legislative mandate that information
provided to a peer review committee not be used in court
proceedings. 	Specifically, section 26-25-3 provides that when
information regarding patient treatment and care is provided to a
peer review committee, that information is deemed to be a
“privileged communication[]” that is “not subject to discovery,
use, or receipt in evidence in any legal proceeding of any kind
or character.” 14 	Indeed, a violation of this restriction is a
class B misdemeanor. 15 	This section--which erects potentially
insurmountable barriers to judicial resolution of negligent
credentialing claims--is at the very least inconsistent with the
notion that section 58-13-5 preserves an exception, sub silentio,
for claims of negligent credentialing. 	A much more harmonious
reconciliation of these provisions recognizes that the need to
use this sort of information in court proceedings is obviated by
the grant of immunity contained in section 58-13-5(7).
¶33 	Third, the majority’s interpretation carries with it a
troublesome corollary. 	Because it asserts that the immunity
conferred in section 58-13-5 does not contemplate immunity from
patient suits, its interpretation would not protect members of

16 Utah Code section 63G-7-301(5)(c) (2008) apparently
retains traditional governmental immunity for actions taken by
DOPL boards in issuing, denying, suspending, or failing to
suspend or revoke licenses. 	Although this would appear to render
section 58-13-5(6)(b) superfluous, I nevertheless find it
inconsistent that the legislature would enact this specific DOPL-
oriented grant of immunity but silently preserve an exception
that would permit patient suits.
No. 20080580, 20080572 	14
the DOPL board who make licensing decisions from suits by
patients of the physicians who were licensed by the board. 16 	Nor
would it protect individuals who, in good faith, provide
information to the DOPL board from such suits. 	Given the
majority’s proposition that the whole of section 58-13-5 applies
only to suits by physicians, there is no apparent basis for
construing subsections (6)(a) and (6)(b) to preclude patients
from pursuing their claims against DOPL board members and
individuals who share information with the DOPL board. 	In the
absence of any statutory language indicating that the immunity in
these sections applies only to suits by physicians, it is far
more consistent to interpret each subsection to grant immunity to
hospitals, DOPL board members, and DOPL informants, regardless of
who brings the suit. 	Any other interpretation inserts into the
statute exceptions that simply cannot be found in the statute’s
plain language.
II. 	GRANTING STATUTORY IMMUNITY FROM NEGLIGENT CREDENTIALING
CLAIMS DOES NOT VIOLATE THE UTAH CONSTITUTION
¶34 	Ms. Archuleta contends that if Utah’s current statutory
scheme bars negligent credentialing claims, then the scheme
violates the open courts and uniform operation of laws clauses of
the Utah Constitution. 	With regard to the open courts clause,
she asserts that the grant of immunity is unconstitutional
because it abrogates a common law right without creating an
alternative remedy and that public policy does not support the
abrogation. 	With regard to the uniform operation of laws clause,
Ms. Archuleta argues that this grant of immunity has the effect
of treating similarly situated individuals differently. 	I will
address each of these arguments in turn.
A. 	This Grant of Immunity Does Not Violate the Open Courts
Clause of the Utah Constitution
¶35 	The legislative grant of immunity from negligent
credentialing claims does not violate the open courts clause
because there is a reasonable alternative remedy to such a cause

17 Utah Const. art. I, § 11.
18 Tindley v. Salt Lake City Sch. Dist., 2005 UT 30, ¶ 17,
116 P.3d 295. 	Although it may have been unclear until decided by
the majority in this case, I am willing to assume that a claim
for negligent credentialing was an existing right within the
meaning of our precedent to the extent that it “is ‘simply the
application of broad common law principles of negligence.’” 	See
supra ¶ 15 (quoting Larson v. Wasemiller, 738 N.W.2d 300, 307
(Minn. 2007)).
19 Berry v. Beech Aircraft Corp., 717 P.2d 670, 680 (Utah
1985).
20 Id.
15 	No. 20080580, 20080572
of action. 	The open courts clause of the Utah Constitution
provides as follows:
All courts shall be open, and every
person, for an injury done to him in his
person, property or reputation, shall have
remedy by due course of law, which shall be
administered without denial or unnecessary
delay; and no person shall be barred from
prosecuting or defending before any tribunal
in this State, by himself or counsel, any
civil cause to which he is a party. 17
¶36 	Before legislation implicates the open courts clause,
the legislation must abrogate an existing right of action in
whole or in part. 18 	But even legislation that abrogates an
existing right of action does not violate the open courts clause
when “an injured person [has] an effective and reasonable
alternative remedy ‘by due course of law’ for vindication of his
constitutional interest.” 19 	A remedy is “an effective and
reasonable alternative” to the abrogated cause of action so long
as the benefit provided by the alternative remedy is
“substantially equal in value or other benefit to the remedy
abrogated.” 20 	The open courts clause is satisfied in this case
because a suit directly against the doctor for his own negligence
is a reasonable alternative remedy.
¶37 	The true harm that a patient suffers in this type of
case is the injury resulting from the physician’s negligent
actions. 	If the physician had not performed the surgery
negligently, there are no damages a patient could seek based
solely on the assertion that the physician may have been
negligently credentialed. 	Accordingly, I would hold that a

21 Utah Const. art. I, § 24.
22 Lee v. Gaufin, 867 P.2d 572, 577 (Utah 1993) (quoting
Malan v. Lewis, 693 P.2d 661, 669 (Utah 1984)).
No. 20080580, 20080572 	16
reasonable and effective alternative to a claim for negligent
credentialing exists in the form of a negligence action against
the doctor whose alleged negligence caused the plaintiff’s actual
injury.
B. 	This Grant of Immunity Does Not Violate the Uniform Operation
of Laws Clause of the Utah Constitution
¶38 	The uniform operation of laws clause of the Utah
Constitution provides that “[a]ll laws of a general nature shall
have uniform operation.” 21 	“A law does not operate uniformly if
‘persons similarly situated’ are not ‘treated similarly’ or if
‘persons in different circumstances’ are ‘treated as if their
circumstances were the same.’” 22 	Ms. Archuleta contends that
“construing the statutes to eliminate negligence claims premised
on credentialing while allowing other claims based on different
bases for negligence . . . offends” the uniform operation of laws
clause.
¶39 	Ms. Archuleta is incorrect. 	The uniform operation of
laws clause requires only that similarly situated individuals be
treated similarly, not that similar claims be treated the same.
And the statutory scheme treats all persons equally. 	All persons
with a negligent credentialing claim are barred from bringing the
claim. 	If the uniform operation of laws clause were to operate
as Ms. Archuleta suggests, all statutes that grant tort immunity
would be unconstitutional for failing to bar--or permit--all tort
actions. 	The uniform operation of laws clause does not require
this type of all-or-nothing approach to a delicate and nuanced
problem. 	Accordingly, I would conclude that the legislature’s
grant of immunity from negligent credentialing claims does not
violate the uniform operation of laws clause.
CONCLUSION
¶40 	Ms. Archuleta seeks to recover from St. Mark’s Hospital
for harm allegedly caused by a physician working in the facility.
She asserts that the hospital should be held liable for
exercising substandard care when reviewing that physician’s
competence to practice medicine. 	The majority concludes that the
claim is not barred by the Health Care Providers Immunity from
Liability Act, even though that act includes a provision that
makes hospitals “immune from liability arising from participation

17 	No. 20080580, 20080572
in a review of a health care provider’s . . . medical
competence.” 	I am unpersuaded by the majority’s argument that an
exception should be read into this plainly stated grant of
immunity. 	Accordingly, I dissent.
---
¶41 	Justice Wilkins concurs in Associate Chief Justice
Durrant’s dissenting opinion.