Lane v. Provo Rehabilitation and Nursing

2018 UT App 10THE UTAH COURT OF APPEALS
SHAUNNA LANE, individually and
as the heir of JACKIE ADAMS, deceased,
Appellee and Cross-appellant,
v.
PROVO REHABILITATION AND NURSING,
Appellant and Cross-appellee.
Opinion
No. 20160472-CA
Filed January 19, 2018
Fourth District Court, Provo Department
The Honorable Claudia Laycock
No. 100404282
Stephen T. Hester and Bradley M. Strassberg,
Attorneys for Appellant and Cross-appellee
Bradley H. Parker, W. Alexander Evans, and James
W. McConkie, Attorneys for Appellee
and Cross-appellant
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
GREGORY K. ORME and DIANA HAGEN concurred.
HARRIS, Judge:
¶1 While Jackie Adams was a resident at Provo
Rehabilitation and Nursing (Provo Rehab), a residential nursing
facility, a nurse (Nurse) mistakenly gave Adams doses of three
potent narcotics that were prescribed for another patient. Nurse
then compounded her mistake by not informing anyone about it,
thereby depriving Adams of the opportunity to be administered
medicine that would likely have reversed the effects of the
overdose. Adams later died due to the physiological effects of
the overdose. His heir (Plaintiff) filed suit against Provo Rehab
and Nurse.
Lane v. Provo Rehabilitation and Nursing
¶2 During the lawsuit, Provo Rehab conceded that Nurse
was negligent in giving Adams the wrong medication, and
conceded that it was vicariously liable for Nurse’s initial
mistake. However, Provo Rehab asserted that it was not
responsible for Nurse’s concealment of her mistake, and that
Nurse’s knowledge of her mistake could not be imputed to
Provo Rehab. Based on these two contentions, Provo Rehab’s
main defense of the case was its claim that it was Nurse’s
concealment of her mistake, and not the mistake itself, that
proximately caused Adams’s death. During pretrial proceedings,
the trial court agreed with Provo Rehab that knowledge of
Nurse’s mistake could not be imputed to Provo Rehab. Based
partly on this ruling, the trial court approved a special verdict
form that required the jury to decide whether Nurse was acting
in the course and scope of her employment when she concealed
her mistake, and then potentially to allocate fault as between
Nurse’s original mistake and her subsequent concealment of the
mistake.
¶3 After a three-day trial, the jury determined that Nurse
was not acting in the course and scope of her employment when
she concealed her mistake, and that therefore Provo Rehab was
not vicariously liable for her act of concealment. The jury
determined that both Nurse’s initial error and her subsequent
concealment were causes of Adams’s death, and allocated 65% of
the fault to the initial medication error and 35% of the fault to the
subsequent concealment. The jury also determined that
Plaintiff’s total damages were $1,407,210.68. The trial court later
entered judgment against Provo Rehab for 65% of that amount,
plus court costs.
¶4 Both parties appeal from this judgment. Plaintiff argues,
among other things, that knowledge of Nurse’s mistake should
have been imputed to Provo Rehab, and that the jury should
therefore never have been asked to apportion fault between
Nurse’s initial mistake and any concealment. Plaintiff asks us to
20160472-CA 2 2018 UT App 10Lane v. Provo Rehabilitation and Nursing
vacate the judgment and remand for entry of judgment for the
full amount of damages as determined by the jury. Provo Rehab,
for its part, argues that Plaintiff failed to introduce sufficient
evidence of causation, and that the trial court should have
entered a directed verdict in favor of defendants. Provo Rehab
asks us to vacate the judgment and remand for entry of a no-
cause judgment.
¶5 For the reasons discussed herein, we conclude that
knowledge of Nurse’s medication error should have properly
been imputed to her employer, Provo Rehab. It follows from this
conclusion that there was no “concealment,” at least not from
Provo Rehab, given that Provo Rehab is deemed to have known
about the error from the outset, and that therefore the jury
should not have been asked to apportion fault between the
medication error and any concealment. It also follows from this
conclusion that Plaintiff’s evidence of proximate causation—that
the initial medication error set in motion an unbroken chain of
events that led to Adams’s death—was easily sufficient. We
therefore vacate the judgment, and remand this case to the trial
court for entry of judgment for the full amount of damages as
determined by the jury.
BACKGROUND
¶6 On the evening of February 8, 2010, Nurse worked a six-
hour swing shift as a licensed practical nurse at Provo Rehab, a
residential nursing facility in Provo, Utah. During this time
period, Nurse was one of Provo Rehab’s many employees, and
worked occasional shifts as a nurse there. On one previous
occasion, Nurse had been involved in an incident in which one
narcotic pill ended up unaccounted for at the end of her shift,
and Nurse was informed that if something like that ever
happened again, she would be terminated.
20160472-CA 3 2018 UT App 10Lane v. Provo Rehabilitation and Nursing
¶7 By February 2010, Adams had resided at, and been under
the care of, Provo Rehab for approximately eleven months. He
was in his early seventies and had been suffering from a number
of medical conditions, including congestive heart failure,
diabetes, and obesity, and had been having a hard time at home.
He and his family had hoped that, during his stay at Provo
Rehab, he could “get stronger” and “get his weight under
control.”
¶8 Upon arriving at work on February 8, 2010, Nurse
consulted an assignment board and learned that she would
spend the evening attending to the residents in the hallway in
which Adams resided. Part of her job as a nurse was to “pass
medication” to the residents in the hall to which she was
assigned. These duties included ascertaining which medications
were prescribed for which resident, gathering those medications,
and administering them timely and in the manner prescribed. If
the medication consisted of pills, her duties also included
actually counting the pills to make sure that she administered
the correct dosages.
¶9 On the evening in question, Nurse began a “medication
pass” at about 8:00 p.m., in which she proceeded down her
hallway with a movable cart containing the medications she
would need to administer. In the course of this “medication
pass,” Nurse made a crucial mistake: she mixed up Adams’s
identity with another resident’s. When she arrived at Adams’s
room, she erroneously assumed that another resident, and not
Adams, resided there. Based on that mistaken assumption, she
prepared the other resident’s medications in a “cup of pills” and
gave them to Adams, who inquired as to whether his “as-
needed” pain medications were in the cup. Both Adams and the
other resident had been prescribed pain medications to be
administered on an as-needed basis, but the prescribed pain
medications were not the same. Nurse told Adams that his pain
medications were not in the cup, and Adams asked that he be
20160472-CA 4 2018 UT App 10Lane v. Provo Rehabilitation and Nursing
given some. Nurse returned to her cart and retrieved the pain
medications—three narcotics of varying dosages for which
Adams did not have a prescription—that had been prescribed
for the other resident, and added them to the cup. Adams took
all of the pills in the cup. 1
¶10 A few minutes later, as she was completing her
“medication pass” through the hallway, Nurse noticed that the
other resident’s name appeared on the door of a different room
than the one in which Adams resided. Nurse soon deduced that
she had mistakenly provided the other patient’s medications to
Adams. She also realized that Adams was diabetic, and the other
resident was not, so she returned to Adams’s room to administer
insulin to him. Adams was still awake and lucid at this point, as
the narcotics had not yet had time to metabolize. In the course of
administering to Adams his diabetes medication, she did not
inform him that she had given him the wrong pain medications.
¶11 Over the course of the rest of her shift, Nurse decided to
conceal her mistake. She proceeded into the other resident’s
room and administered to him the narcotics that had been
prescribed for Adams. She also checked on Adams “at least
twice” over the course of the rest of her shift, and nothing
appeared acutely amiss. Before her shift ended, Nurse falsified
the medical records so that they indicated that both Adams and
the other resident had been given their proper medications.
Nurse testified that, at the time, she did not think administering
the incorrect medications would cause harm to either Adams or
the other resident. In addition, Nurse testified that, given her
past employment history including the previous lost-pill
incident, she was concerned that she might be terminated if she
informed anyone of her mistake. Nurse’s shift ended around
1. The parties refer to this sequence of events as the Medication
Error.
20160472-CA 5 2018 UT App 10Lane v. Provo Rehabilitation and Nursing
midnight, and she informed no one of the Medication Error
before completing her shift. 2
¶12 The three narcotics that Nurse mistakenly administered to
Adams were morphine, hydromorphone, and oxycodone, three
“very potent” opioids. By contrast, the only pain medications for
which Adams had a prescription—and which he should have
been given—were Neurontin, which is not an opioid, and Norco,
a less-potent opioid similar to Lortab. Individuals who are not
conditioned to taking strong opioid medications are more prone
to suffer acute negative effects, including respiratory depression
and cardiac arrest. Because Adams had not been prescribed
these three potent opioid medications, both parties’ experts
agreed that he was not conditioned to them. Indeed, one expert
referred to Adams as an “opiate-naïve” individual who was
more likely than others to suffer negative effects from a mistaken
overdose of narcotics.
¶13 However, even unconditioned individuals who have
taken an overdose of narcotics can be administered another
medication—known generically as naloxone—which, if timely
administered, will almost always reverse even severe
physiological effects of a narcotics overdose. Neither side
disputes the fact that Nurse’s decision to conceal the Medication
Error deprived Adams of an opportunity to be saved from the
Medication Error through the timely administration of naloxone.
¶14 At approximately 5:45 a.m. the next morning, Adams was
discovered “not breathing” and “unresponsive.” He had no
pulse. At that point, Adams was taken to a hospital but, despite
aggressive treatment, he died two days later without ever
regaining consciousness.
2. The parties refer to this sequence of events as the
Concealment.
20160472-CA 6 2018 UT App 10Lane v. Provo Rehabilitation and Nursing
¶15 Plaintiff filed suit against Provo Rehab and Nurse, 3
alleging that both Provo Rehab and Nurse owed Plaintiff a duty
of care and that both defendants breached that duty, causing
Adams’s death and Plaintiff’s damages. Plaintiff also brought
claims against Provo Rehab and Nurse under the wrongful
death statute and the survival statute. During pretrial
proceedings, Provo Rehab conceded that Nurse acted
negligently by committing the Medication Error, and further
conceded that it was vicariously liable for Nurse’s actions in
committing the Medication Error, because Nurse was clearly
acting in the course and scope of her employment in
administering the medications. However, Provo Rehab took the
position that Nurse was not acting in the course and scope of her
employment when she chose to conceal the Medication Error
from Adams and from her superiors, and contended that it was
therefore not vicariously liable for Nurse’s Concealment.
¶16 Plaintiff responded to this defense by asking the trial
court to determine, as a matter of law, that knowledge of Nurse’s
Medication Error was imputed to Provo Rehab, because Nurse
committed the Medication Error during the course and scope of
her employment with Provo Rehab, and therefore Provo Rehab
had knowledge of the Medication Error pursuant to principles of
agency law. Plaintiff argued that, if knowledge of the Medication
Error was imputed to Provo Rehab at the moment it occurred,
there could not have been any “concealment,” at least not from
Provo Rehab. Had the trial court granted this motion, it would
have prevented Provo Rehab from pursuing any defense based
on Nurse’s Concealment. Indeed, at oral argument before this
court, Provo Rehab conceded that, if knowledge of the
Medication Error is imputed to it, it effectively has no defense to
Plaintiff’s lawsuit. The trial court denied the motion, however,
3. Nurse has since been dismissed as a defendant, and is not a
party to this appeal.
20160472-CA 7 2018 UT App 10Lane v. Provo Rehabilitation and Nursing
effectively allowing Provo Rehab’s concealment defense to
continue. 4
¶17 The trial court also approved the use of a special verdict
form that contained seven questions. First, the jury was asked to
determine whether Nurse was “acting in the course and scope of
her employment . . . when she concealed her medication error.”
Next, in two questions, the jury was asked to determine, in turn,
whether the Medication Error and the Concealment were “a
cause” of Adams’s death. After that, the jury was asked, in two
questions, to apportion fault between the Medication Error and
the Concealment. Finally, the jury was asked, in two questions,
to fix an amount for Plaintiff’s economic and non-economic
damages.
¶18 During trial, both parties’ medical experts were in general
agreement on two main points. First, both agreed that Adams
died as a result of receiving the three narcotics from Nurse that
were prescribed for the other resident. Second, both experts
likewise agreed that had Adams timely been administered
naloxone, he likely would not have died. However, Plaintiff’s
expert had not been asked to consider, and therefore did not
4. After the trial court denied Plaintiff’s motion to impute, and
partially because of that ruling, the trial court also granted Provo
Rehab’s motion for summary judgment on Plaintiff’s direct
claims against it, concluding, among other things, that Provo
Rehab did not breach the standard of care when it failed to
disclose the Medication Error to Adams because—due to the
trial court’s previous ruling regarding imputation—Provo Rehab
did not know of the Medication Error until it was too late.
Although Plaintiff here appeals the trial court’s ruling regarding
imputation of knowledge, Plaintiff does not appeal the trial
court’s related ruling dismissing her direct claims against Provo
Rehab on summary judgment.
20160472-CA 8 2018 UT App 10Lane v. Provo Rehabilitation and Nursing
offer an opinion on, whether the Medication Error alone, apart
from the Concealment, was the proximate cause of Adams’s
death. Provo Rehab’s expert, on the other hand, testified that,
while the Medication Error was a “but-for” cause of Adams’s
death, the proximate cause of the death was the Concealment.
¶19 At the close of evidence, Provo Rehab moved for a
directed verdict, asserting that Plaintiff had failed to meet her
burden of presenting expert testimony that the Medication
Error—as opposed to the Concealment—was the proximate
cause of Adams’s death. The trial court denied the motion.
During closing arguments, Provo Rehab’s counsel again argued
that Nurse’s Concealment, not the Medication Error, caused
Adams’s death, and pointed out that both experts agreed that
Adams would have lived if Nurse had appropriately disclosed
the Medication Error.
¶20 After deliberation, the jury found that Nurse was not
acting in the course and scope of her employment when she
concealed the Medication Error. The jury found that both the
Medication Error and the Concealment were causes of Adams’s
death, and apportioned 65% of the fault to the Medication Error
and 35% to the Concealment. The jury awarded Plaintiff
$1,375,000 in loss-of-companionship damages and $32,210.68 in
medical and funeral expenses, for a total of $1,407,210.68. The
trial court later entered judgment against Provo Rehab for 65%
of that amount, plus court costs.
¶21 After trial, Provo Rehab moved for a judgment
notwithstanding the verdict, or alternatively for a new trial,
making the same lack-of-causation arguments it had made in its
motion for directed verdict. The trial court denied the motion.
¶22 Both parties appeal.
20160472-CA 9 2018 UT App 10Lane v. Provo Rehabilitation and Nursing
ISSUES AND STANDARDS OF REVIEW
¶23 Plaintiff argues, first, that the trial court should have
granted her motion to impute Nurse’s knowledge to Provo
Rehab, thus foreclosing Provo Rehab’s defense at trial that
Nurse’s Concealment of the Medication Error was a cause of
Adams’s death. Whether a principal is imputed with its agent’s
knowledge is a legal question. Wardley Better Homes & Gardens v.
Cannon, 2002 UT 99, ¶ 19, 61 P.3d 1009. And we review a trial
court’s conclusions on legal questions for correctness. Zions Gate
R.V. Resort, LLC v. Oliphant, 2014 UT App 98, ¶ 4, 326 P.3d 118.
¶24 Second, and relatedly, Plaintiff argues that the trial court
should not have instructed the jury to allocate fault between the
Medication Error and the subsequent Concealment. We review
for correctness a trial court’s decisions about whether to allow
apportionment of fault. Call v. Keiter, 2010 UT App 55, ¶ 15, 230
P.3d 128.
¶25 Provo Rehab’s arguments on appeal all hinge on one
assertion: that Plaintiff failed to present sufficient evidence of
proximate causation because Plaintiff’s expert could not testify
that the Medication Error, separate from the Concealment,
caused Adams’s death. Specifically, Provo Rehab argues that the
trial court should have recognized that Plaintiff’s case was
deficient with regard to causation, and should have granted its
motions for directed verdict and/or for judgment
notwithstanding the verdict.
When a party challenges a trial court’s denial of a
motion for directed verdict or judgment
notwithstanding the verdict on the basis of
insufficiency of the evidence, we follow one
standard of review: We reverse only if, viewing the
evidence in the light most favorable to the
prevailing party, we conclude that the evidence is
insufficient to support the verdict.
20160472-CA 10 2018 UT App 10Lane v. Provo Rehabilitation and Nursing
Schreib v. Whitmer, 2016 UT App 61, ¶ 28, 370 P.3d 955 (citation
and internal quotation marks omitted).
ANALYSIS
I
¶26 Plaintiff first argues that the trial court should have
granted her motion to impute Nurse’s knowledge of the
Medication Error to Provo Rehab. We agree.
¶27 Provo Rehab is a corporate entity. “Corporations can only
act through agents, be they officers or employees.” Orlob v.
Wasatch Mgmt., 2001 UT App 287, ¶ 18, 33 P.3d 1078 (citation
and internal quotation marks omitted); see also Restatement
(Third) of Agency § 7.03 cmt. c (Am. Law Inst. 2006) (“A
principal that is not an individual can take action only through
its agents, who typically are individuals.”). Similarly,
“corporations, being artificial legal entities, can have only that
knowledge which is imputed to them under principles of agency
law.” See Wardley, 2002 UT 99, ¶ 22 (citing 9A Fletcher Cyclopedia
of Private Corporations § 4589 (perm. ed., rev. vol. 2000)); id.
(stating that “a corporation’s knowledge is entirely imputed to it
from the knowledge possessed by its officers and agents”
(citation and internal quotation marks omitted)).
¶28 Pursuant to agency law, the general rule is that “the
knowledge of [an] agent concerning the business which he is
transacting for his principal is to be imputed to his principal.” Id.
¶ 16 (alteration in original) (citation and internal quotation
marks omitted); see also Restatement (Third) of Agency § 5.03
(Am. Law Inst. 2006) (stating that “notice of a fact that an agent
knows or has reason to know is imputed to the principal if
knowledge of the fact is material to the agent’s duties to the
principal”). “This rule is broad, encompassing ‘all notice or
knowledge relating to the subject-matter of the agency which the
20160472-CA 11 2018 UT App 10Lane v. Provo Rehabilitation and Nursing
agent obtains while acting as such agent and within the scope of
his authority.’” Wardley, 2002 UT 99, ¶ 16 (quoting Latses v. Nick
Floor, Inc., 104 P.2d 619, 623 (Utah 1940)). Indeed, this rule
applies even where the agent fails to inform his principal of the
fact in question:
[A] principal is affected with constructive
knowledge, regardless of actual knowledge, of all
material facts of which his agent receives notice or
acquires knowledge while acting in the course and
scope of his employment and within the scope of
his authority, although the agent does not in fact
inform his principal thereof.
Id. (second emphasis added) (citing 3 C.J.S. Agency § 432 (1973)).
¶29 Provo Rehab has long since conceded that Nurse was its
agent, and that Nurse was acting in the course and scope of her
employment and within the scope of her authority when she
committed the Medication Error. Under general principles of
agency law, then, all of Nurse’s knowledge that was material to
her work for Provo Rehab—even knowledge of facts that Nurse
did not share with her superiors—is automatically imputed to
Provo Rehab, including Nurse’s knowledge that, at
approximately 8:00 p.m. on February 8, 2010, Nurse
administered the wrong medication to Adams.
¶30 Provo Rehab argued to the trial court, and argues here,
that these general principles of agency law are not applicable in
this case under the Utah Supreme Court’s holding in Wardley.
Provo Rehab’s reliance upon Wardley, however, is misplaced.
¶31 In Wardley, a real estate agent fraudulently altered four
listing agreements to surreptitiously extend their duration. See
Wardley, 2002 UT 99, ¶ 2. After the properties that were the
subject of the agreements were sold, the agent and his brokerage
claimed entitlement to a commission. Id. ¶ 5. The owners
20160472-CA 12 2018 UT App 10Lane v. Provo Rehabilitation and Nursing
disagreed, pointing out that the listing agreements they signed
expired before the properties were sold. See id. The brokerage
sued the owners for breach of contract. Id. At the time the suit
was filed, the agent knew that he had fraudulently altered the
contracts, but his superiors at the brokerage who made the
decision to file suit apparently did not. Id. ¶¶ 6, 8. The case
proceeded to trial, and the trial court ruled in favor of the
owners, finding that the agent had fraudulently altered the
listing agreements. Id. ¶ 6. After trial, the owners asked the trial
court to award attorney fees under the “bad faith” statute, which
permits a trial court to award fees “if the court determines that
the action . . . was without merit and not brought or asserted in
good faith.” Id. ¶ 7. The trial court denied the motion, ruling that
because the brokerage “represented that it did not have
knowledge” of the agent’s fraudulent acts at the time it filed suit,
the case was not brought in bad faith, and this court affirmed the
trial court’s decision. Id. ¶¶ 8, 10–11 (internal quotation marks
omitted).
¶32 The Utah Supreme Court reversed, ultimately ruling that
knowledge of the agent’s fraudulent actions could be imputed to
the agent’s principals at the brokerage. Id. ¶ 33. In reaching this
conclusion, the court discussed the distinctions between the
concepts of vicarious liability, on the one hand, and imputation
of knowledge, on the other hand. Id. ¶ 19 (referring to the two
concepts as “separate legal questions”). The court explained that
imputation of knowledge is a broader concept than vicarious
liability, and that an agent’s knowledge is imputed to its
principal in many contexts, not just when vicarious liability is at
issue. Id. ¶ 20 (stating that “[i]f we were to impute an agent’s
knowledge to his principal only when the principal is being
sought to account for his agent’s acts, imputation of knowledge
would be a wholly superfluous legal principle because in each
instance in which it might apply, the principal could simply be
held responsible by means of vicarious liability” (emphasis
omitted)).
20160472-CA 13 2018 UT App 10Lane v. Provo Rehabilitation and Nursing
¶33 Provo Rehab relies heavily on one particular quotation
from Wardley in which the court stated as follows:
Under principles of imputation, a principal is held
responsible for his own act, which is deemed to have
been committed with the knowledge his agent had
at the time of the principal’s act, assuming the
agent obtained such knowledge while acting
within the scope of his authority.
Id. ¶ 19 (emphasis added). Provo Rehab argues that imputation
of knowledge must necessarily be limited to only one context:
where a litigant is attempting to hold a principal “responsible for
his own act.” Provo Rehab asserts that there is no “act” that was
committed by Provo Rehab for which Plaintiff is attempting to
hold it liable, 5 and asserts that Nurse’s knowledge may therefore
not be imputed to it. We find these arguments unpersuasive.
¶34 Wardley certainly applied the concept of imputation of
knowledge to a set of facts in which a plaintiff was attempting to
hold a principal directly liable for its own actions (there,
allegedly filing suit in bad faith). But Wardley came nowhere
close to limiting the applicability of the concept of imputation of
knowledge to that solitary factual setting. Indeed, Wardley
discussed at least one prior case—Hodges v. Gibson Products Co.,
811 P.2d 151 (Utah 1991)—in which the concept was properly
5. As noted earlier, at one point in the case Plaintiff did allege
that Provo Rehab directly (and not vicariously) committed an act
(namely, failing to tell Adams about the Medication Error after it
happened) for which it should be held liable based on imputed
knowledge. As noted, all such direct claims were dismissed on
summary judgment, partially as a result of the trial court’s
imputation ruling, and Plaintiff does not appeal the dismissal of
her direct claims.
20160472-CA 14 2018 UT App 10Lane v. Provo Rehabilitation and Nursing
applied in a case alleging vicarious (as opposed to direct)
liability. Id. ¶ 20 (citing Hodges, 811 P.2d at 157). In our view,
Provo Rehab’s interpretation of Wardley is exactly backwards:
rather than limiting the concept of imputation of knowledge,
what the court in Wardley was doing was extending the concept to
a factual setting—a case alleging direct liability—in which the
court had apparently not previously applied it. Nothing in the
Wardley opinion can be construed as limiting or overruling the
concept’s applicability in factual settings in which it had already
been applied.
¶35 And those factual settings are quite numerous. Plaintiff
directs our attention to numerous prior cases, some of which are
cited here in the margin, 6 in which our supreme court has
applied the concept of imputation of knowledge from agent to
principal in a variety of circumstances. In two of these cases, the
court imputed knowledge from agent to principal in a factual
setting similar to the one presented here: where a litigant was
attempting to impute knowledge to the principal in order to
foreclose a principal’s claim or affirmative defense. See Macris v.
6. See, e.g., Hardy v. Prudential Ins. Co. of Am., 763 P.2d 761, 767
(Utah 1988) (holding that an insurance agent’s knowledge of an
insured’s medical history would be imputed to the principal
insurance company in an insurance coverage dispute); Harris-
Dudley Plumbing Co. v. Professional United World Travel Ass’n
(WTA), Inc., 592 P.2d 586, 588–89 (Utah 1979) (holding that a
company officer’s knowledge of the commencement of an action
would be imputed to the company); Evona Inv. Co. v. Brummitt,
240 P. 1105, 1112 (Utah 1925) (concluding that an agent’s
knowledge would be imputed to the principal in a breach of
promissory note case); First Nat’l Bank v. Foote, 42 P. 205, 206–07
(Utah Terr. 1895) (acknowledging the general rule that an agent’s
knowledge is imputed to his principal when the agent is acting
on behalf of the principal and has authority to do so).
20160472-CA 15 2018 UT App 10Lane v. Provo Rehabilitation and Nursing
Sculptured Software, Inc., 2001 UT 43, ¶ 21, 24 P.3d 984 (imputing
knowledge from agent to principal to determine that the
principal’s lawsuit was barred by the statute of limitations, since
the agent was aware of the relevant facts earlier); Latses v. Nick
Floor, Inc., 104 P.2d 619, 622–24 (Utah 1940) (imputing
knowledge from agent to principal to determine that the
principal would not be allowed to assert a statute of frauds
defense). Here, Plaintiff wishes to impute Nurse’s knowledge of
the Medication Error to Provo Rehab in order to prevent Provo
Rehab from arguing that there was a separate act of
“Concealment” that proximately caused Adams’s death. We are
aware of no principle of law—certainly, none is found in
Wardley—that would prevent imputation of knowledge under
these circumstances.
¶36 Imputation of knowledge from agent to principal is a
broad concept, and “encompass[es] ‘all notice or knowledge
relating to the subject-matter of the agency which the agent
acquires or obtains while acting as such agent and within the
scope of his authority.’” Wardley, 2002 UT 99, ¶ 16 (quoting
Latses, 104 P.2d at 623). Nurse committed the Medication Error
within the course and scope of her agency. Knowledge of that
error was, as a matter of law, necessarily imputed to Nurse’s
principal, Provo Rehab, the moment it occurred. Accordingly,
the trial court’s decision not to impute that knowledge to Provo
Rehab was error.
II
¶37 The conclusion that Provo Rehab had constructive
knowledge, as a matter of law, of the Medication Error the
moment it happened means, as a matter of logic, that there
cannot have been any concealment of the Medication Error from
Provo Rehab. This fact has several important consequences in
this case.
20160472-CA 16 2018 UT App 10Lane v. Provo Rehabilitation and Nursing
A
¶38 First, Provo Rehab’s efforts to defend this case on the
ground that the Concealment, rather than the Medication Error,
proximately caused Adams’s death must fail for the simple
reason that there was no concealment of the Medication Error
from Provo Rehab. While the Medication Error was certainly
concealed from Adams and his family, it cannot have legally
been concealed from Provo Rehab, because Provo Rehab’s agent
(Nurse) learned of the Medication Error in the course and scope
of her employment, and her knowledge was imputed to Provo
Rehab. Because there was no concealment from Provo Rehab,
there was no legal or factual basis for allocating fault as between
the Medication Error and the Concealment. Accordingly, the
trial court’s instruction to the jury that it should attempt that
allocation was erroneous.
B
¶39 Second, Provo Rehab’s assertion that Plaintiff failed to
present sufficient evidence of proximate causation is incorrect.
Provo Rehab’s arguments in this regard are grounded in the fact
that both sides’ expert medical witnesses—including Plaintiff’s
expert—testified that Adams would not have died if he had
timely been given naloxone. As Provo Rehab puts it, Plaintiff
was unable to present any competent expert testimony that the
Medication Error, standing alone and apart from the
Concealment, proximately caused Adams’s death.
¶40 This argument collapses, however, once it is
acknowledged that there was never any “concealment” in a legal
sense. Without any concealment, the causation question becomes
much simpler: did the Medication Error proximately cause
Adams’s death? And the answer to this question was
undoubtedly answered in the affirmative by expert medical
witnesses from both sides.
20160472-CA 17 2018 UT App 10Lane v. Provo Rehabilitation and Nursing
¶41 In order to prevail on a claim of medical malpractice,
Plaintiff must establish “(1) the standard of care required of
health care providers under the circumstances; (2) breach of that
standard by the defendant; (3) injury proximately caused by the
breach; and (4) damages.” Morgan v. Intermountain Health Care,
Inc., 2011 UT App 253, ¶ 8, 263 P.3d 405. Ordinarily, proximate
cause in a medical malpractice case must be established through
expert testimony. Id. ¶ 9. This is because “‘the standard of care
and the causal link between the negligence and the injury’” in a
medical malpractice case “‘are usually not within the common
knowledge of the lay juror.’” Id. (quoting Bowman v. Kalm, 2008
UT 9, ¶ 7, 179 P.3d 754); see also Jensen v. IHC Hosps., Inc., 2003
UT 51, ¶ 96, 82 P.3d 1076 (“Unless the propriety of the treatment
received is within the common knowledge and experience of the
layman, the plaintiff is required to prove the standard of care
through an expert witness who is qualified to testify about the
standard.” (citation and internal quotation marks omitted)).
Provo Rehab correctly points out that Plaintiff was required to
present expert medical testimony that Adams’s death was
proximately caused by a breach of the medical standard of care.
¶42 Provo Rehab also correctly points out that proximate
causation is not the same thing as “but-for” causation, and that
the expert testimony on causation must establish more than
simply that, but for the Medication Error, Adams would not
have died. See Raab v. Utah Ry. Co., 2009 UT 61, ¶ 23, 221 P.3d 219(stating that “[f]or a particular negligent act to be the legal cause
of a plaintiff’s injuries, there must be some greater level of
connection between the act and the injury than mere ‘but for’
causation”). In order to meet the elements of medical
malpractice, Plaintiff’s expert medical testimony on causation
must establish that the Medication Error was the “proximate
cause” of Adams’s death. See Morgan, 2011 UT App 253, ¶ 8.
¶43 We have defined “[p]roximate cause” as “‘that cause
which, in a natural and continuous sequence, unbroken by any new
20160472-CA 18 2018 UT App 10Lane v. Provo Rehabilitation and Nursing
cause, produced the injury, and without which the injury would
not have occurred.’” Dee v. Johnson, 2012 UT App 237, ¶ 4, 286
P.3d 22 (emphasis added) (quoting Bunker v. Union Pac. R.R. Co.,
114 P. 764, 775 (Utah 1911)); see also Model Utah Jury Instructions
2d (MUJI) CV209 (2016), https://www.utcourts.gov/resources/
muji/inc_list.asp?action=showRule&id=2#209 [https://perma.cc/
BE3B-2ZDB] (stating that the first element of “cause” is that “the
person’s act or failure to act produced the harm directly or set in
motion events that produced the harm in a natural and
continuous sequence”). Additionally, “‘foreseeability is an
element of proximate cause.’” Dee, 2012 UT App 237, ¶ 5
(quoting Steffensen v. Smith’s Mgmt. Corp., 862 P.2d 1342, 1346
(Utah 1993)); see also MUJI CV209 (stating that the second
element of “cause” is that “the person’s act or failure to act could
be foreseen by a reasonable person to produce a harm of the
same general nature”). “Therefore, ‘the more fundamental test is
whether under the particular circumstances the defendant
should have foreseen that his conduct would have exposed
others to an unreasonable risk of harm; and this includes
situations where negligent or other wrongful conduct of others
should reasonably be anticipated.’” Dee, 2012 UT App 237, ¶ 5
(brackets omitted) (quoting Watters v. Querry, 588 P.2d 702, 704
(Utah 1978)).
¶44 Under these standards, and in the absence of any
Concealment, we have no trouble concluding that the expert
medical testimony presented at trial was more than sufficient to
establish that the Medication Error was a proximate cause of
Adams’s death. Both parties’ experts agreed that an overdose of
narcotics, such as those mistakenly administered to Adams, sets
in motion a chain of events that will, if not halted by the timely
administration of naloxone, very likely cause respiratory failure
and death. Specifically as to this case, both parties’ experts
agreed that the Medication Error had precisely these effects
upon Adams: that it set in motion a chain of events that shut
down Adams’s respiratory system and ultimately led to his
20160472-CA 19 2018 UT App 10Lane v. Provo Rehabilitation and Nursing
death. That testimony was easily sufficient to allow the case to
go to the jury on the issue of proximate causation. 7 Accordingly,
the trial court did not err in denying Provo Rehab’s various post-
trial motions.
C
¶45 Finally, we briefly discuss the issue of damages. Neither
side raises any issues on appeal with regard to the propriety of
the evidence presented to the jury regarding damages. That is,
neither side calls into question the jury’s determination, after
hearing the damages evidence, that Plaintiff’s total damages
were $1,407,210.68.
7. Provo Rehab did not make any argument, either at trial or
before this court, that the failure to administer naloxone was a
superseding cause of Adams’s death. Presumably, this choice
was tactical. Indeed, the related argument that it advanced
instead—that the Concealment and not the Medication Error
was the true cause of Adams’s death—was at least partially
successful at trial. However, we note here that we perceive
potential substantive deficiencies in any argument Provo Rehab
might have made that the failure to administer naloxone to
Adams was a superseding cause of Adams’s death. The failure
to administer naloxone was Provo Rehab’s own failure (or the
failure of its agents). A defendant “cannot rely on its own
subsequent acts of negligence to break the chain of causation
between an earlier act of negligence and the injury”; indeed,
“[o]nly the unforeseeable acts of another constitute an
intervening proximate cause.” See Steffensen v. Smith’s Mgmt.
Corp., 820 P.2d 482, 488 (Utah Ct. App. 1991) (emphasis added),
aff’d, 862 P.2d 1342 (Utah 1993). Here, there is no second actor;
thus, Provo Rehab’s and/or its agents’ failure to administer
naloxone cannot have been a superseding cause of Adams’s
death.
20160472-CA 20 2018 UT App 10Lane v. Provo Rehabilitation and Nursing
¶46 In some cases in which we discern error in the manner in
which a trial was conducted, it is necessary to remand the case
for a new trial. In this case, given that neither party takes issue
with the damages evidence, a full remand is not necessary. We
have determined that the imputation of the knowledge of
Nurse’s Medication Error to Provo Rehab means that there was
no proper basis for the jury to be asked to allocate fault—and
thus portions of the total damages award—between the
Medication Error and the Concealment. Plaintiff’s suggested
remedy is simply for us to vacate the judgment (which was
entered for approximately 65% of the full damages amount) and
remand the case for the limited purpose of entry of judgment in
the full, non-allocated amount of damages awarded by the jury,
plus appropriate costs. On the facts of this case, we agree that
this is the proper remedy. 8
CONCLUSION
¶47 Adams and his family entrusted his care to Provo Rehab.
While under the care of Provo Rehab, Adams was mistakenly
given an overdose of narcotics, and that mistake was not
ameliorated through the timely administration of naloxone.
These events led inexorably to Adams’s death, and Provo Rehab
is appropriately liable for damages resulting therefrom.
8. Plaintiff also raises several other arguments on appeal,
including (1) that the trial court should have ruled that Provo
Rehab ratified Nurse’s actions by accepting payment for his care,
and (2) that Provo Rehab failed to provide the jury with any
rational basis for dividing responsibility for Adams’s death
between the Medication Error and the Concealment. Given our
resolution of the issues discussed herein, we need not address
these alternative arguments.
20160472-CA 21 2018 UT App 10Lane v. Provo Rehabilitation and Nursing
¶48 Provo Rehab’s efforts to avoid full liability here are
unavailing, largely because knowledge of Nurse’s Medication
Error was imputed, as a matter of law, to Provo Rehab the
moment it happened. As a result, Provo Rehab cannot point to
any concealment as the cause of Adams’s death, because there
was no concealment from Provo Rehab as a matter of law, and
therefore no basis for apportioning fault between the Medication
Error and the Concealment. In the absence of any concealment,
Plaintiff’s expert medical evidence regarding causation was
sufficient.
¶49 Accordingly, we vacate the judgment of the trial court,
and remand this case for the limited purpose of entering
judgment in the full amount of damages awarded by the jury,
plus appropriate costs.
20160472-CA 22 2018 UT App 10