Harward v. Urology Clinic of Utah Valley ( 2023 )

2023 UT App 63THE UTAH COURT OF APPEALS
CECILIA HARWARD AND ALVIN HARWARD,
Appellants,
v.
UROLOGY CLINIC OF UTAH VALLEY LLC
AND BRANDON REYNOLDS,
Appellees.
Opinion
No. 20220027-CA
Filed June 8, 2023
Fourth District Court, Provo Department
The Honorable Kraig Powell
No. 170401397
G. Eric Nielson and Todd Wahlquist,
Attorneys for Appellants
Stephen W. Owens, James T. Egan, and Nourin
Nahed Abourahma, Attorneys for Appellees
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and RYAN D. TENNEY
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 As a result of receiving multiple daily infusions of the
antibiotic gentamicin, Cecilia Harward developed permanent
vestibular damage. 1 She and her husband, Alvin Harward, sued
1. The vestibular system is the link between the inner ear and
brain that allows us to keep our balance. Damage to this system
can cause dizziness and trouble with balance. See, e.g., Stephanie
Booth, What Are Vestibular Disorders?, WebMD, https://www.web
md.com/brain/vestibular-disorders-facts [https://perma.cc/JAT4-
(continued…)
Harward v. Urology Clinic of Utah Valley
her prescribing urologist, Dr. Brandon Reynolds, and Urology
Clinic of Utah Valley LLC (collectively, Dr. Reynolds), asserting
that Dr. Reynolds committed medical malpractice by failing to
obtain her informed consent prior to ordering that she undergo
gentamicin infusions. Following trial, the jury found by special
verdict that Dr. Reynolds did not breach his duty of care with
respect to Ms. Harward’s informed consent. On appeal, we are
asked to determine whether the jury instructions, along with
statements regarding consent made by witnesses, misled the jury
as to the meaning of informed consent. We are also asked to
address questions regarding allocation of fault to Ms. Harward
and the infusion center nurses.
¶2 We agree with the Harwards that the jury instructions and
statements concerning consent had the potential to confuse the
jury and that the confusion was reasonably likely to have affected
the jury’s verdict. We accordingly vacate the verdict and remand
for a new trial. We also provide guidance regarding the allocation
issues, which may arise on remand.
BACKGROUND
¶3 Ms. Harward’s primary physician referred her to Dr.
Reynolds because “[s]he had recurrent urinary tract infections
that were becoming more and more resistant to antibiotics.” Dr.
Reynolds found that Ms. Harward also had a kidney stone and
scheduled surgery to remove it. Dr. Reynolds also determined
that it was necessary to treat Ms. Harward’s current infection with
antibiotics prior to the surgery to avoid the risk of sepsis. Dr.
Reynolds decided that gentamicin would be the most appropriate
antibiotic, based on Ms. Harward’s circumstances, and instructed
his medical assistant to order the antibiotic. Dr. Reynolds did not
7HYH]. Since her gentamicin treatment, Ms. Harward
experiences nausea from dizziness, is unable to drive, and
frequently needs a cane to walk.
20220027-CA 2 2023 UT App 63Harward v. Urology Clinic of Utah Valley
discuss his choice of antibiotic with Ms. Harward. Instead, he had
his medical assistant call Ms. Harward and tell her, “Dr. Reynolds
wants you to go to the IV infusion center at Utah Valley starting
Monday morning for IV antibiotics.” The assistant told Ms.
Harward she would make the arrangements and that the
antibiotic treatment would continue once per day for fourteen
days prior to Ms. Harward’s surgery but did not give Ms.
Harward any details concerning the antibiotic she would receive,
its risks, or its alternatives.
¶4 When Ms. Harward arrived at the infusion center, she
received a handout concerning gentamicin and signed an
acknowledgment (the Acknowledgement) stating, “I have
received and understand the instructions in this handout.” The
handout included a list of side effects, including “loss of balance”
and becoming “confused, dizzy, disoriented.” It did not
specifically mention the risk of permanent vestibular damage.
¶5 When Ms. Harward went to the infusion center for her
sixth dose of gentamicin, she complained to the nurse of
“dizziness, nausea, dry heaves, [and a] metallic taste” in
her mouth. The nurse called Dr. Reynolds, who ordered her
to “hold today’s dose and restart tomorrow.” Based on the
nurse’s description, Dr. Reynolds did not believe Ms.
Harward was having a reaction to the gentamicin, but he told the
nurse to call him back if Ms. Harward continued to have
problems. Ms. Harward returned for another infusion the next
day and received several more doses over the ensuing days. Over
the next several days, she told the nurses she was feeling “the
same,” but the nurses did not report any further symptoms to Dr.
Reynolds.
¶6 Ms. Harward ultimately received ten infusions of
gentamicin before her surgery. A week later, she followed up with
Dr. Reynolds and told him she was concerned she was suffering
from “gentamicin poisoning.” Dr. Reynolds referred Ms.
Harward to an ENT physician, who confirmed that she had
20220027-CA 3 2023 UT App 63Harward v. Urology Clinic of Utah Valley
suffered permanent vestibular damage as a consequence of the
gentamicin infusions.
¶7 Subsequently, the Harwards sued Dr. Reynolds and the
IHC infusion center for medical malpractice based on the failure
to obtain Ms. Harward’s informed consent to the gentamicin
infusions. The Harwards settled their claims against IHC and then
proceeded to trial on their claims against Dr. Reynolds.
¶8 Prior to trial, Dr. Reynolds filed a Notice of Apportionment
of Fault, stating that he intended to ask that the jury allocate
fault to the IHC nurses at trial. However, when he did not
designate a nursing expert to testify as to the nursing standard of
care, the Harwards filed a motion in limine seeking to prevent him
from allocating fault to IHC. The court denied the motion,
concluding that Dr. Reynolds’s physician experts could opine as
to the nursing standard of care in this case and that Dr. Reynolds
could, on the basis of this testimony, argue for apportionment of
fault.
¶9 Dr. Reynolds filed a motion in limine asking that he
be allowed to argue to the jury that IHC paid a settlement to
the Harwards. He explained that he wanted to argue that “[i]f
a mistake was made, IHC made it and paid out money” and
the Harwards “have been compensated for it.” The
Harwards responded that such an argument would be
inappropriate because “[t]here are many reasons why
persons settled their dispute” and that Dr. Reynolds should not
be able to imply that the settlement with IHC indicated that IHC
rather than Dr. Reynolds committed the malpractice. The district
court concluded that Dr. Reynolds would not be permitted to
make statements or elicit testimony regarding the settlement that
went beyond the language of the jury instructions, which
informed the jury that the Harwards had settled their claims
against IHC and that the jury’s award of damages “should be
made without considering what they received under this
settlement.”
20220027-CA 4 2023 UT App 63Harward v. Urology Clinic of Utah Valley
¶10 The case proceeded to trial. The Harwards presented
evidence that Dr. Reynolds had not told Ms. Harward the name
of the drug he was prescribing, that gentamicin had a “black box
warning” regarding permanent vestibular damage, or that there
were two other medications that could have potentially treated
her infection. Their infectious disease expert testified that the risk
of vestibular damage from gentamicin is somewhere between 2%
and 10% and that gentamicin should be used only in life-
threatening situations.
¶11 When cross-examining the Harwards’ expert, Dr.
Reynolds’s counsel referred to the Acknowledgement as a
“consent form.” The Harwards objected to this reference, but the
court overruled that objection. Dr. Reynolds’s counsel continued
referring to the Acknowledgement as a “consent form”
throughout the remainder of the questioning. The Harwards then
moved for a mistrial on the ground that mischaracterizing the
Acknowledgement as a “consent form” had misled the jury into
believing Ms. Harward had given informed consent. At that
point, the court took the mistrial motion under advisement and
told counsel to, for the rest of the day, refer to the
Acknowledgment as “the document that Cecilia Harward signed
on . . . March 29, 2016.” Subsequently, the district court denied the
motion for mistrial, ruling that “the question of whether the form
qualifies as a consent form” should be left to the jury and that each
side would be able to “vigorously examine and argue” the issue
in the remaining four days of trial. In the subsequent days, Dr.
Reynolds’s defense focused on the issue of consent:
• Dr. Reynolds’s counsel continued to refer to the
Acknowledgment as a “consent form” over the course of
the remaining days of trial.
• Dr. Reynolds’s counsel asked Ms. Harward, “[Y]ou
understood that at any time you wanted, after Dose 1 or 2
or 3 or any time, you can say, ‘Stop. I withdraw my consent
to have this drug given to me.’ True?” and, “[E]very . . .
20220027-CA 5 2023 UT App 63Harward v. Urology Clinic of Utah Valley
time you submitted your arm to an RN, you were
consenting to have that . . . shot given?” Ms. Harward
answered yes to both questions.
• Dr. Reynolds’s counsel asked his urology expert,
“Tomorrow morning, this jury’s going to get about ten
instructions from the judge about what informed consent
requires. . . . One of them says, ‘Just by showing up, consent
is implied.’ . . . Does that sound like a good concept?” The
expert responded, “Yeah. I agree with that concept.” The
questioning continued, “After [Ms. Harward] has spoken
to her doctor, given a sheet with the risks, talked to the
nurse, and puts her arm out, that’s consent just itself, isn’t
it?” The expert again responded, “I think so.” Dr.
Reynolds’s counsel then asked, “Another instruction is that
it doesn’t even have to be written. So, again, with no
writing, there[’s] consent, informed consent. Do you
agree?” The expert responded, “I agree.”
• Dr. Reynolds’s counsel also asked the same urology expert,
“[D]o you believe this form complies with the appropriate
standards of care for consent for gentamicin?” And the
expert replied, “Yes, I do. I think it’s quite good, actually.”
¶12 Another subject of questioning at trial concerned
apportionment of fault, both to Ms. Harward and to the IHC
nurses. First, Dr. Reynolds’s counsel asked his ENT expert,
“[W]ould you estimate for me, what percentage of [Ms.
Harward’s] failure to follow through with vestibular therapy has
contributed to her ability to deal with her vestibular problems?”
The expert responded that he believed Ms. Harward’s share of
responsibility was “50 percent.” Second, Dr. Reynolds’s counsel
elicited testimony from Ms. Harward that she and her husband
had received a settlement from IHC and testimony from Dr.
Reynolds’s urology expert indicating that he was aware the
Harwards had settled with IHC.
20220027-CA 6 2023 UT App 63Harward v. Urology Clinic of Utah Valley
¶13 The jury was sent to deliberate, and the court provided a
special verdict form asking the jury to answer several questions,
the first of which was, “Did Brandon Reynolds, M.D./Urology
Clinic of Utah Valley breach the standard of care in treating
Cecilia Harward?” As to this question, the court instructed the
jury: “A physician has a duty to obtain the patient’s informed
consent to proposed care. Consent is informed if the patient gives
consent after the physician outlines the substantial and significant
risks of serious harm from the care and the reasonable alternatives
to care.” It further outlined the elements of informed consent:
(1) that a physician-patient relationship existed
between (a) Cecilia Harward and (b) Brandon
Reynolds, M.D./Urology Clinic of Utah Valley;
(2) that Brandon Reynolds, M.D./Urology Clinic of
Utah Valley provided care to Cecilia Harward;
(3) that Cecilia Harward suffered personal injuries
arising out of the care rendered;
(4) that the care posed a substantial and significant
risk of causing serious harm;
(5) that Cecilia Harward was not informed of the
substantial and significant risk or of reasonable
alternatives;
(6) that a reasonable person in Cecilia Harward’s
position would not have consented to the care
after having been informed of the substantial
and significant risks and alternatives; and
(7) that the care was a cause of Cecilia Harward’s
harm.
20220027-CA 7 2023 UT App 63Harward v. Urology Clinic of Utah Valley
However, over the Harwards’ objection, the district court then
added two instructions concerning consent: (1) “When a person
submits to health care rendered by a health care provider, it is
presumed that actions taken by the health care provider are either
expressly or impliedly authorized to be done,” and (2) “A consent
to treatment is binding even if it is not in writing.”
¶14 The jury returned a verdict in favor of Dr. Reynolds by
answering “no” to the first question on the special verdict form,
finding that Dr. Reynolds did not breach his standard of care. The
Harwards now appeal.
ISSUES AND STANDARDS OF REVIEW
¶15 The Harwards first assert that the district court erred in
overruling their objection to the jury instructions on consent.
Whether a jury instruction correctly states the law is a matter
reviewed for correctness. Zazzetti v. Prestige Senior Living Center
LLC, 2022 UT App 42, ¶ 15, 509 P.3d 776, cert. denied, 525 P.3d 1260(Utah 2022). However, the question of whether a district court
could or should refuse to give a jury instruction is reviewed for
abuse of discretion. Miller v. Utah Dep’t of Transp., 2012 UT 54,
¶ 13, 285 P.3d 1208.
¶16 They next argue that the district court erred by denying
their motion for mistrial. They relatedly assert that the district
court should have ruled as a matter of law that the
Acknowledgment was not a consent form and precluded Dr.
Reynolds from characterizing it as such throughout the remainder
of trial. “A trial court’s decision to grant or deny a mistrial will
not be disturbed on appeal absent an abuse of discretion.” West
Valley City v. Patten, 1999 UT App 149, ¶ 7, 981 P.2d 420. “We grant
a trial court broad discretion to admit or exclude evidence and
will disturb its ruling only for abuse of discretion,” which may be
“demonstrated by showing that the district court relied on an
erroneous conclusion of law or that there was no evidentiary basis
20220027-CA 8 2023 UT App 63Harward v. Urology Clinic of Utah Valley
for the trial court’s ruling.” Daniels v. Gamma West Brachytherapy,
LLC, 2009 UT 66, ¶ 32, 221 P.3d 256 (quotation simplified).
¶17 The Harwards also argue that the district court erred in
allowing Dr. Reynolds to introduce evidence of the settlement
with IHC in the context of discussing the IHC nurses’ liability. We
also review this issue for abuse of discretion. See id.¶18 The Harwards next assert that the district court erred in
allowing Dr. Reynolds to elicit testimony regarding the consent
instructions and Ms. Harward’s percentage of fault. We review
the district court’s determinations concerning the admissibility of
expert testimony for abuse of discretion. See Steffensen v. Smith’s
Mgmt. Corp., 862 P.2d 1342, 1347 (Utah 1993).
¶19 Finally, the Harwards argue that the court erred in
allowing Dr. Reynolds to question the physician experts about the
nursing standard of care. Again, we review the admissibility of
expert testimony for abuse of discretion. 2 See id.ANALYSIS
I. Jury Instructions
¶20 “[T]he object of instructions is to enlighten the jury.”
Nielsen v. Pioneer Valley Hosp., 830 P.2d 270, 275 (Utah 1992). “It is
the duty of the trial court to cover the theories and points of law
of both parties in its instructions, provided there is competent
evidence to support them.” Miller v. Utah Dep’t of Transp., 2012 UT
54, ¶ 13, 285 P.3d 1208 (quotation simplified). However, “the trial
2. Dr. Reynolds argues that many of these issues were
unpreserved. However, Dr. Reynolds’s arguments misconstrue
our preservation rules. We identify no real concerns with
preservation in this case and consider the Harwards’ arguments
on their merits.
20220027-CA 9 2023 UT App 63Harward v. Urology Clinic of Utah Valley
court may”—and should—“properly refuse to give requested
instructions where [they do] not accurately reflect the law
governing the factual situation of the case.” See id. (quotation
simplified); see also Black v. McKnight, 562 P.2d 621, 622 (Utah 1977)
(upholding a court’s refusal to include statutory language in the
jury instructions that had no relationship to the facts presented in
the case). Indeed, even instructions that are correct as a matter of
law may be inappropriate when they “create[] the potential for
confusion and could have misled the jury.” State v. Hutchings, 2012
UT 50, ¶ 23, 285 P.3d 1183.
¶21 Our supreme court’s decision in Nielsen v. Pioneer Valley
Hospital, 830 P.2d 270 (Utah 1992), is instructive. In Nielsen, a
plaintiff brought a medical malpractice claim in which she raised
theories of both res ipsa loquitur and common law negligence. See
id. at 272. The court’s jury instructions on res ipsa loquitur
explained that the jury did not need to rely on expert testimony if
the elements of res ipsa loquitur were established and that the
existence of those elements would create “an inference of
negligence” that the defendants would have to rebut. Id. at 272–
73 (quotation simplified). However, the court also gave
instructions on common law negligence, which stated that “no
presumption of negligence arises from the fact of an adverse event
occurring during a defendant’s treatment” and that the jury could
not impose any “standard derived from [its] own experience.” Id.
at 273 (quotation simplified). But the court did not explain to the
jury that the common law negligence instructions did not apply
to the res ipsa loquitur claim. Id. at 274.
¶22 Our supreme court determined that the common law
negligence instructions were misleading because they did “not
distinguish between the two separate theories of negligence” and
therefore were likely to have denied the plaintiff a fair trial. Id.
The court explained, “While lawyers and judges with a
background in negligence law may be able to discern which
instructions apply to which theories, we are not satisfied that a lay
jury could do so.” Id.
20220027-CA 10 2023 UT App 63Harward v. Urology Clinic of Utah Valley
¶23 The same is true here. Like res ipsa loquitur and common
law negligence, the concepts of “consent” and “informed
consent” are distinct, see Lounsbury v. Capel, 836 P.2d 188, 193
(Utah Ct. App. 1992), cert. denied, 843 P.2d 1042 (Utah 1992), yet
that distinction is not readily apparent to a lay jury, see Nielsen,
830 P.2d at 274.
¶24 As the jury instructions indicated, “When a person submits
to health care rendered by a health care provider, it is presumed
that actions taken by the health care provider are either expressly
or impliedly authorized to be done.” See Utah Code § 78B-3-
406(1)(a). Nevertheless, a patient may show a lack of informed
consent by demonstrating, among other things, that the patient
was not informed of “a substantial and significant risk” before
submitting to the healthcare. See id. § 78B-3-406(1)(b). Thus, a
person may consent to the actions of a healthcare provider
without giving informed consent.
¶25 However, this distinction would not necessarily be
apparent to a lay juror, particularly one confronted with the
evidence presented in this trial. First, the terms “consent” and
“informed consent” are very similar. A juror confronted with a
question about informed consent may very well not realize that
an instruction concerning consent could not negate the informed
consent requirements unless the difference was adequately
explained in the jury instructions. Moreover, the jury in this case
was presented with extensive testimony concerning “consent,”
despite consent not being an issue in the case. Dr. Reynolds’s
questions both to Ms. Harward and his expert regarding whether
Ms. Harward gave consent by “showing up” and submitting her
arm for an injection very well could have given the jury the
impression that these actions were, in fact, relevant to the case and
that it should consider them in assessing the Harwards’ informed
consent claim.
¶26 Similar to what happened in Nielsen, the jury in this case
was presented with instructions relating to both consent and
20220027-CA 11 2023 UT App 63Harward v. Urology Clinic of Utah Valley
informed consent without any indication that the “consent”
instructions did not impact Ms. Harward’s informed consent
claim. In fact, the error is even more egregious here than in
Nielsen. Unlike the plaintiff in Nielsen, who argued theories of both
res ipsa loquitur and common law negligence—making
instructions on both necessary—the Harwards never asserted that
Ms. Harward had not consented to the treatment, instead
asserting only that she did not give her informed consent. Thus,
there was no reason for the jury to consider whether Ms. Harward
consented to the treatment or to apply the presumption of
consent, and there was no reason for the district court to include
the consent instruction. Under these circumstances, it was an
abuse of the district court’s discretion to give the requested
consent instruction.
¶27 The instruction that consent need not be in writing was
similarly unnecessary because consent was not in dispute. This
instruction, combined with the consent instruction, had the
potential to mislead the jury into believing that Ms. Harward’s
nonverbal action of presenting at the infusion center and
submitting to treatment was sufficient to establish that she gave
informed consent to receive gentamicin.
¶28 We view the “potential for confusion” created by the jury
instructions to have been sufficiently “substantial” to give rise to
“a reasonable likelihood that the jury’s verdict may have been
different absent the error.” See Nielsen, 830 P.2d at 275. And that
view is further strengthened by our recognition of additional
errors exacerbating the potential for confusion, which we address
in subsequent sections of this opinion.
II. The Acknowledgment
¶29 The Harwards raise three separate arguments relating to
the district court’s handling of the Acknowledgment. First, they
argue that the court should have granted their motion for mistrial
based on Dr. Reynolds’s characterization of the Acknowledgment
20220027-CA 12 2023 UT App 63Harward v. Urology Clinic of Utah Valley
as a consent form to the jury. Second, they argue that the court
should have given a curative instruction informing the jury that
the Acknowledgment did not meet the statutory requirements of
a written informed consent as a matter of law. Third, they argue
that the court should have precluded Dr. Reynolds from
continuing to characterize the Acknowledgment as a consent
form throughout the rest of the trial.
¶30 Trial courts have broad discretion in deciding whether to
grant a mistrial. Whether Dr. Reynolds’s initial references to the
Acknowledgment as a consent form, alone, would have required
a mistrial had the district court prevented further references, we
need not decide in light of our reversal on other grounds.
However, to guide the district court on remand, we address the
questions of whether the court should have instructed the jury
that the Acknowledgment was not a written consent and whether
the court should have allowed it to be characterized as a consent
form.
¶31 The Utah Code indicates that a written consent meeting
specific requirements and executed by the patient or their
representative is a defense to an alleged failure to obtain informed
consent. Utah Code § 78B-3-406(3)(e). To rebut this defense, the
plaintiff must then prove a lack of capacity or fraud. Id. § 78B-3-
406(4). Dr. Reynolds does not argue that the Acknowledgment
met the requirements of this statute. Moreover, he did not raise
such a defense at trial.
¶32 As a general matter, there was no reason for the court to
rule on whether the Acknowledgement was a written consent or
to include a jury instruction to that effect because Dr. Reynolds
did not assert a defense based on the existence of a written consent
and the jury was not instructed regarding the effect of such a
document. And just because the Acknowledgement did not meet
the statutory requirements of a written consent form did not mean
that it could not be used as evidence that Ms. Harward was
informed of at least some of the risks of gentamicin.
20220027-CA 13 2023 UT App 63Harward v. Urology Clinic of Utah Valley
¶33 However, we do think it was inappropriate for Dr.
Reynolds to repeatedly characterize the Acknowledgement as a
“consent form” given the potential confusion we have identified
between the concepts of consent and informed consent. Rather
than focusing on whether the Acknowledgement provided Ms.
Harward with sufficient information to make her consent
informed, Dr. Reynolds implied that Ms. Harward gave her
informed consent simply by signing the form. For example, he
elicited expert testimony that the Acknowledgement “complies
with the appropriate standards of care for consent for gentamicin.”
(Emphasis added.) And in his closing argument, he asserted that
Ms. Harward had “signed” a document that was “better than a
general surgical consent form” even though consent requires no
document. These statements, coupled with the repeated reference
to the Acknowledgement as a “consent form” throughout trial,
implied that the Acknowledgement was more than it was. And
this implication was exacerbated by the confusing jury
instructions on consent discussed above.
¶34 The potential negative effects of Dr. Reynolds’s references
to the Acknowledgement as a consent form could have been
ameliorated had the court either provided a curative instruction
or precluded Dr. Reynolds from continuing to characterize the
Acknowledgement as a consent form. The fact that the court did
neither of these things further solidifies our conviction that the
Harwards did not receive a fair trial.
III. Settlement Evidence
¶35 The Harwards also assert that the court erred in permitting
statements and questioning regarding their pretrial settlement
with IHC. Rule 408 of the Utah Rules of Evidence prohibits the
use of settlement evidence “to prove or disprove liability,” but
such evidence may be used “for another purpose.” Utah R. Evid.
408. In this case, Dr. Reynolds was permitted to argue for
allocation of fault to IHC as another potentially liable party. The
court found it appropriate to inform the jury that IHC had settled
20220027-CA 14 2023 UT App 63Harward v. Urology Clinic of Utah Valley
to explain IHC’s absence from the trial. However, the district
court ruled that the parties would not be permitted to argue “that
IHC paid money to be dismissed” or to discuss “the settlement
other than to reference the exact wording of the jury instructions.”
The Harwards do not take issue with this ruling but assert that
the court allowed Dr. Reynolds to violate it on several occasions.
¶36 Because we are remanding for a new trial, we need not
examine the challenged violations in detail. We nevertheless
caution that in the course of the new trial, the district court should
take care to prohibit questioning about the settlement that implies
a link between the settlement and liability.
IV. Expert Statements
A. Expert Testimony Regarding the Jury Instructions
¶37 The Harwards next take issue with the district court’s
decision to allow Dr. Reynolds to question his urology expert
regarding his opinions of the jury instructions. Dr. Reynolds’s
counsel asked, “Tomorrow morning, this jury’s going to get about
ten instructions from the judge about what informed consent
requires. . . . One of them says, ‘Just by showing up, consent is
implied.’ . . . Does that sound like a good concept?” The expert
responded, “Yeah. I agree with that concept.” Dr. Reynolds’s
counsel went on to ask, “Another instruction is that it doesn’t even
have to be written. So, again, with no writing, there[’s] consent,
informed consent. Do you agree?” The expert responded, “I
agree.”
¶38 The Utah Rules of Evidence permit an expert witness to
“testify in the form of an opinion or otherwise if the expert’s
scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in
issue.” Utah R. Evid. 702(a). However, “an expert witness exceeds
the scope of permissible testimony when the witness’s legal
conclusions blur the separate and distinct responsibilities of the
20220027-CA 15 2023 UT App 63Harward v. Urology Clinic of Utah Valley
judge, jury and witness, or there is danger that a juror may turn
to the witness’s legal conclusion rather than the judge for
guidance on the applicable law.” State v. Chapman, 2014 UT App
255, ¶ 17, 338 P.3d 230 (quotation simplified), cert. denied, 343 P.3d
708 (Utah 2015); accord Steffensen v. Smith’s Mgmt. Corp., 862 P.2d
1342, 1347–48 (Utah 1993).
¶39 We agree with the Harwards that the urology expert’s
testimony regarding the jury instructions exceeded the scope of
permissible expert testimony. Whether the expert agreed with a
legal standard outlined in the jury instructions was irrelevant to
the correctness of those instructions, and the expert’s opinion
created a danger of the jurors relying on the expert rather than the
judge for guidance on the law and the meaning of the instructions.
Moreover, the question to the expert explicitly suggested that the
consent instruction was an instruction about “what informed
consent requires.” (Emphasis added.) This was particularly
misleading because the instruction was not about informed
consent. The urology expert’s testimony that he agreed with the
unnecessary consent instructions and the context in which that
testimony was elicited increased the likelihood that the jury was
misled by the instructions.
B. Expert Testimony Regarding Comparative Fault
¶40 The Harwards also take issue with the testimony from Dr.
Reynolds’s ENT expert in which he provided his opinion that Ms.
Harward’s share of fault was “50 percent.” Ultimately, this
testimony did not impact the outcome of the case because the jury
never reached the questions on the special verdict form
concerning apportionment. However, we observe, for the court’s
benefit on remand, that such testimony is inappropriate. See
generally Steffensen, 862 P.2d at 1348 (explaining that
“apportionment of negligence” is “exclusively the jury’s
responsibility” and that it is therefore inappropriate for an expert
witness to opine on “the actual percentage of negligence” between
two parties); see also Webb v. Omni Block, Inc., 166 P.3d 140, 145–46
20220027-CA 16 2023 UT App 63Harward v. Urology Clinic of Utah Valley
(Ariz. Ct. App. 2007) (holding that an expert made “inadmissible
legal conclusions” when he attributed specific percentages of fault
to different parties because “he thereby told the jury how to
decide the case”).
V. Allocation of Fault
¶41 Finally, the Harwards challenge the district court’s
decision to allow Dr. Reynolds to use physician experts to testify
to the nursing standard of care. This decision ultimately did not
affect the outcome of the case because the jury never reached the
allocation issue on the special verdict form. However, as the issue
is likely to arise on remand, we elect to address it. See, e.g., Miller
v. Utah Dep’t of Transp., 2012 UT 54, ¶ 21, 285 P.3d 1208; State v.
Low, 2008 UT 58, ¶ 61, 192 P.3d 867.
¶42 “In Utah, a practitioner of one school of medicine is
ordinarily not competent to testify as an expert in a malpractice
action against a practitioner of another school due to the wide
variation between schools in both precepts and practices.” De
Adder v. Intermountain Healthcare, Inc., 2013 UT App 173, ¶ 16, 308
P.3d 543 (quotation simplified). Thus, doctors are typically not
qualified “to testify as an expert in a malpractice action against a
nurse.” Id. (quotation simplified). However, an “exception applies
when a medical expert witness . . . is knowledgeable about the
applicable standard of care” in the relevant field or the standard
of care “is the same” as the standard of care in the expert’s
specialty. Id. ¶ 17 (quotation simplified).
¶43 In this case, the nurses’ alleged breach of duty was their
handling of Ms. Harward’s initial reports of side effects. The
district court explained that the question of whether the nurses
were negligent in this case “depends on ultimately what and
when they needed to report to the doctor.” The court determined
that the doctor would be “knowledgeable about the applicable
standard of care” because “the doctor would know whether or
when to call the doctor.” We agree with this assessment. Thus, the
20220027-CA 17 2023 UT App 63Harward v. Urology Clinic of Utah Valley
district court did not err in permitting the physician experts to
testify regarding the nursing standard of care in this case. 3
CONCLUSION
¶44 Under the circumstances of this case, the jury instructions
on general consent and whether consent must be in writing were
potentially misleading to the jury. The potential for confusion was
further exacerbated by the defense’s repeated characterization of
the Acknowledgment as a “consent form” and the testimony of
the urology expert regarding his approval of the instructions. We
also observe that the ENT expert should not have opined as to Ms.
Harward’s percentage of fault and that the defense may have
gone too far in questioning the urology expert about the
settlement agreement. The district court did not err, however, in
permitting the physician experts to testify to the nursing standard
of care under the circumstances of this case.
¶45 We vacate the jury’s verdict and remand for a new trial.
3. As part of their argument, the Harwards point out that Dr.
Reynolds was permitted to question their experts regarding the
nursing standard of care, putting them in the difficult position of
having to impeach their own experts. Their argument seems to
imply that even if Dr. Reynolds could rely on his physician
experts to establish the nursing standard of care, he should not
have been permitted to establish the standard of care through the
Harwards’ experts. However, the Harwards do not provide any
support for this assertion apart from their general argument that
the physician experts were not qualified to opine on the nursing
standard of care. If there is some other basis for limiting defense
questioning of the Harwards’ experts, the Harwards can raise it
during the new trial.
20220027-CA 18 2023 UT App 63