holding that an identity of interest existed between the university and one of its doctors because "the University took steps to provide counsel for [the doctor] and required that all communications, concerning [the plaintiff's] claim be sent to the University's Risk Management attorney or to [the doctor's] counsel"
How later courts described this case
- holding that an identity of interest existed between the university and one of its doctors because "the University took steps to provide counsel for [the doctor] and required that all communications, concerning [the plaintiff's] claim be sent to the University's Risk Management attorney or to [the doctor's] counsel"
- holding that the medical malpractice claim against a university related back to the original complaint against the treating physician where the university provided counsel to the physician and directed the defense from the start
- holding that the district court erred in denying a motion to amend when "no trial date had been set, no expert discovery had taken place, and discovery was still on-going"
- explaining that we require strict compliance so that the "purpose of the Immunity Act's notice of claim [may be] fulfilled.”
Written by the judges who cited it.
The opinion
ORME, Judge
(concurring specially):
I concur in the court's opinion, but wish to register a concern.
¶ 40 In the procedural posture of this case, Dr. Albo was entitled to summary judgment with respect to his individual Hability. The very reason he is off the hook personally-he demonstrated in moving for summary judgment that anything he did, he did in the course and scope of his employment as an employee of the University-seals the responsibility of the University to answer for any negligence in the course of Dr. Albo's treatment of Plaintiff.
¶ 41 That having been said, it should be noted that it would not have been at all clear to Plaintiff that Dr. Albo was rendering treatment to her as a University employee. She visited him not at the University Hospital or any of the ancillary buildings, but at a private office off campus, adjacent to Salt Lake Regional Hospital-a hospital at which Dr. Albo also had privileges, a hospital which covered the larger portion of his secretary's salary, and a hospital at which many of his patient records were kept. Neither University medical students nor University Hospital interns or residents observed or participated in any of the procedures performed by Dr. Albo on Plaintiff. The sclerosing agent used by Dr. Albo was not secured from the supplies of University Hospital, but rather was procured in Italy by his daughter. (Apparently the sclerosing agent has not been approved for use in this country by the Food and Drug Administration.)
¶ 42 While it is clear given the record in this case that Dr. Albo was in fact a University employee who treated Plaintiff in the course of that employment as it was broadly defined by the University, it is also clear this would have come as a surprise to Plaintiff. Indeed, it is almost as though Dr. Albo and/or the University preferred that his status not come to Plaintiffs attention until long after she had been treated. Perhaps clear, unambiguous, and early disclosure that a treating physician enjoys the protection of the Utah Governmental Immunity Act is not good for business.
¶ 43 Surely courts will look askance, as we have done here, at any effort to obscure the University's role if that effort is coupled with a later attempt to avoid responsibility altogether. Such a strategy runs something like this: You cannot hold the doctor personally liable because he is an employee of the University and did this work in the course of that employment. And you cannot hold the University responsible because your notice of claim was directed to the doctor rather than the University. Moreover, it is inconsequential that we wanted him to seem like any ol' doctor in private practice rather than a University professor or state employee so that you would not worry too much about the remedies available to you in the event of malpractice and thus are largely responsible for your focusing on him initially rather than the University.
¶ 44 The main opinion's scholarly and well-reasoned discussion about the adequacy of the notice of claim and the "relation back" doctrine avoids this inequitable result by permitting Plaintiff to amend her complaint and proceed against the University as Dr. Albo's employer.