SCOTT v. WINGATE WILDERNESS THERAPY LLC (2019)

ORDER CERTIFYING STATE LAW QUESTION

Jacob M. Scott was hiking in the wilderness of southern Utah as part of his participation in a program run by Wingate Wilderness Therapy, LLC, (“Wingate”) when a staff member allowed him and several other boys to climb a seventy-foot-tall, snow-dusted rock formation without climbing equipment or training. Jacob ¹ struggled to descend the formation, and when he tried to follow the route a staff member recommended, he slipped, fell, and shattered his left knee. Jacob sued Wingate for negligence, and Wingate moved to dismiss pursuant to the Utah Health Care Malpractice Act (UHCMA), which requires plaintiffs filing complaints against health care providers to comply with certain procedural requirements, including a two-year statute of limitations period. The district court dismissed the lawsuit, reasoning that Wingate was a health care provider, Jacob's injuries arose out of health care rendered by Wingate, and Jacob failed to comply with several UHCMA provisions, including the statute of limitations. Jacob then appealed, arguing the district court erred in finding his injuries arose out of health care provided by Wingate.

Because the disposition of this appeal turns on an important and unsettled question of Utah law, we respectfully request the Utah Supreme Court exercise its discretion to accept the following certified question:

Where Wingate is a “health care provider” under Utah Code § 78B-3-403(12), does an injury sustained by a plaintiff while climbing a rock formation during a “wilderness therapy” program operated by Wingate “relat[e] to or aris[e] out of health care rendered or which should have been rendered by [a] health care provider” within the meaning of the UHCMA?

I. BACKGROUND

Wingate operates an outdoor youth program offering “wilderness therapy” to troubled adolescents. Young people enrolled in Wingate's program engage in “[a]ll aspects of living in the wilderness,” including hiking and camping, as well as individual and group therapy. App. at 32. They live in the wilderness during their time at Wingate and receive treatment from various professionals, including licensed therapists and psychologists.

On February 21, 2015, Jacob Scott, a seventeen-year-old minor, was enrolled in Wingate's wilderness therapy program by his parents, who sought treatment for Jacob's substance abuse, disruptive behavior, and anxiety, among other things. That evening, staff members from Wingate met Jacob and his mother at a chiropractor's office in St. George, Utah, where Jacob received a sports physical (required for participation in Wingate's program), before the Wingate staff members drove Jacob to Kanab.

Jacob then began a fourteen-day period in the wilderness participating in Wingate's program. On February 23, 2015, he met with Scott Hess, a licensed marriage and family therapist employed by Wingate, to discuss his adjustment to the program, his fellow campers, and Wingate staff. Two days later, on February 25, 2015, Mr. Hess created a treatment plan for Jacob, which “identif[ied] initial diagnostic impressions, outlin[ed] the course of treatment, and identif[ied] his treatment areas.” Id. at 178–79. Specifically, the treatment plan stated that during his time at Wingate Jacob would:

participate in weekly individual and group therapy as well as daily psychoeducational and process groups. He will be immersed in wilderness principles and experiences, and will have the opportunity to learn & apply ‘Leave No Trace’ principles throughout his outdoor experience at WinGate. He will have the opportunity to learn outdoor survival skills as well as a variety of methods for making and utilizing primitive tools, instruments, and shelters. Jacob will be introduced to new philosophies and strategies to assist him in creating a more effective path for himself and for his family relationships.

Id. at 182. During his subsequent deposition, Mr. Hess described the treatment plan as providing for, “among other things, weekly individual and group therapy sessions, daily psychoeducational and process groups, hiking (exercise), and recommended a stay in the therapeutic program for eight weeks.” Id. at 179.

According to Jacob's complaint, on March 6, 2015, Jacob was hiking with six other boys and two staff members. At some point during the hike, the lead staff member left the group. After that, the boys asked the remaining staff member whether they could climb to the top of a seventy-foot-high, snow-dusted rock formation. The staff member gave them permission to do so. Four boys, including Jacob, made it to the top, but Jacob and at least one other boy found it much more difficult to climb back down. The boy in front of Jacob nearly fell fifty feet off the side of the formation. The lead staff member returned around this time to find Jacob stuck on the rock formation and scared to come down. Neither staff member offered Jacob any physical assistance, but one of them advised Jacob to follow a certain route down. As Jacob tried to do so, he slipped on the snow and fell approximately twenty-five feet to the ground, landing on his left knee.

The other boys moved Jacob under a nearby tree and built a fire to keep him warm. Two or three hours later, another staff member arrived in an off-road vehicle and transported Jacob to Kane County Hospital in Kanab, Utah, where he was diagnosed with a high-energy comminuted left patellar fracture. Jacob has undergone numerous surgeries since then, and “[h]is knee is permanently disabled and disfigured” because of the accident. Aplt. Op. Br. at 9.

Jacob turned eighteen in 2015, a few months after his fall. About three years later, Jacob filed a lawsuit against Wingate in federal district court, asserting a single cause of action for negligence and reckless conduct. He alleged Wingate breached its duty of care to him by:

(i) allowing the youth to take a detour from the designated route; (ii) allowing the lead staff member to leave the group with only one staff member remaining with the group; (iii) not doing anything to determine whether the climbing of the rock formation would be safe for the youth; (iv) not properly assessing the danger of allowing the youth to climb the rock formation; (v) allowing the youth to climb the dangerous rock formation without supervision; (vi) allow[ing] the youth to climb the dangerous rock formation without any safety gear; (vii) not assisting Jacob with his descent down the rock formation[;] and (viii) instructing [Jacob] to climb down the rock formation when and where it was dangerous to do so.

Scott v. Wingate Wilderness Therapy, LLC, No. 4:18-CV-0002-DN, 2019 WL 1206901, at *2 (D. Utah Mar. 14, 2019) (quoting App. at 13). Jacob did not attempt to comply with the UHCMA prior to filing suit, and he filed his complaint outside the two-year statute of limitations provided under the UHCMA (but within the otherwise-applicable four-year statute of limitations, see Utah Code § 78B-2-307(3)).

Wingate moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction, arguing Jacob had failed to comply with the procedural requirements of the UHCMA by failing to (1) give Wingate at least ninety days prior notice of his intent to commence an action, (2) request a pre-litigation panel review hearing with the Division of Occupational and Professional Licensing, and (3) file the lawsuit within the UHCMA's truncated two-year statute of limitations. Scott, 2019 WL 1206901, at *4. In response, Jacob argued the UHCMA did not apply because (1) Wingate was not a health care provider within the UHCMA's meaning and (2) “Jacob's [i]njuries [d]id not [a]rise [o]ut of [o]r [r]elate to the [r]endering of [h]ealth [c]are.” App. at 64. In the alternative, Jacob argued the district court should equitably toll the statute of limitations on his claim.

The district court granted Wingate's motion to dismiss, reasoning that the UHCMA applied because:

Wingate provides services similar to health care providers listed in the UHCMA and the UHCMA specifically extends the definition of “health care provider” to entities that provide these comparable services. Wingate therefore is a health care provider under the UHCMA. The injury [Jacob] alleges relates to or arose out of health care rendered or which should have been rendered by Wingate. The terms of the UHCMA are [therefore] applicable to this matter.

Scott, 2019 WL 1206901, at *5. The district court also found that “[t]olling the statute of limitations for equitable purposes is inappropriate in this case” because Jacob had failed to show that Wingate “did anything to prevent him from investigating and filing suit prior to the expiration of the statute of limitations,” and Jacob's parents knew about the details of his injury within days of the accident. Id. at *4. Finally, the district court denied Jacob's request to certify the question to the Utah Supreme Court, reasoning that “certification is unnecessary” because “the language of the relevant statutes is clear, and the case does not present an issue of law which would require clarification from the Utah Supreme Court.” Id. at *1. Jacob timely appealed.

II. DISCUSSION

The UHCMA imposes a set of procedural requirements a plaintiff must satisfy prior to filing any “malpractice action against a health care provider.” See Utah Code §§ 78B-3-404(1)–412(1). In particular, before filing a lawsuit, a plaintiff must (1) “giv[e] notice to the health care provider ninety days before commencement of the action,” (2) “participat[e] in a prelitigation panel review,”² and (3) “fil[e] the complaint within the abbreviated two-year statute of limitations period” the UHCMA prescribes. Carter v. Milford Valley Memorial Hosp., 996 P.2d 1076, 1079 (Utah Ct. App. 2000). These requirements apply to any “malpractice action against a health care provider.” Utah Code § 78B-3-404(1). The UHCMA defines “malpractice action against a health care provider” as “any action against a health care provider, whether in contract, tort, breach of warranty, wrongful death, or otherwise, based upon alleged personal injuries relating to or arising out of health care rendered or which should have been rendered by the health care provider.” Id. § 403(17).

The parties do not dispute that Jacob failed to satisfy the UHMCA's procedural requirements prior to filing suit. Nor do they dispute that Wingate is a health care provider. Aplt. Op. Br. at 5. The only issue remaining for appeal is whether Jacob's injuries “ar[ose] out of health care rendered or which should have been rendered” by Wingate. Utah Code § 78B-3-403(17).³

Jacob argues that his injuries arose out of the Wingate staff member's decision to allow him to climb a seventy-foot rock formation without climbing equipment or assistance. Even if Wingate's counseling services constitute health care, Jacob contends the relevant conduct here does not fall within the meaning of “health care rendered” in the UHMCA because the “alleged transgressions are only tangentially related to [Wingate's] provision of health care services.” Dowling v. Bullen, 94 P.3d 915, 918 (Utah 2004); see also Smith v. Four Corners Mental Health Ctr., Inc., 70 P.3d 904, 913 (Utah 2003) (distinguishing between mental health services, which are health care covered by the UHMCA, and foster care services, which are not). Wingate responds that the UHMCA broadly defines “health care” as “any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement.” Utah Code § 78B-3-403(10). Wingate argues that Jacob was receiving health care in the form of “wilderness therapy” when he was injured and therefore his claim plainly falls within the Act's reach.

Jacob counters that none of the health care providers listed in the UHMCA provide wilderness therapy, and therefore such services were not intended by the Utah Legislature to be treated as health care. And even if wilderness therapy were included, Jacob contends that unassisted rock climbing is not wilderness therapy.

Whether and to what extent an injury sustained in the course of “wilderness therapy” “relat[es] to or aris[es] out of health care rendered,” id. § 403(17), within the meaning of the UHMCA has yet to be addressed by a Utah state court. Because this question is a controlling issue of law in a proceeding pending before this court, and there appears to be no controlling Utah law, the Utah Supreme Court should be permitted to answer this question in the first instance if it should choose to do so. See Utah Code § 78A-3-102(1) (“The Supreme Court has original jurisdiction to answer questions of state law certified by a court of the United States.”).

III. CERTIFICATION

Accordingly, pursuant to Tenth Circuit Rule 27.4 and Utah Rule of Appellate Procedure 41, we CERTIFY the following question to the Utah Supreme Court:

Where Wingate is a “health care provider” under Utah Code § 78B-3-403(12), does an injury sustained by a plaintiff while climbing a rock formation during a “wilderness therapy” program operated by Wingate “relat[e] to or aris[e] out of health care rendered or which should have been rendered by [a] health care provider” within the meaning of the UHCMA?

The Clerk of this court shall transmit a copy of this certification order to counsel for all parties. The Clerk of this court shall also forward to the Clerk of the Utah Supreme Court, under the Tenth Circuit's official seal, copies of this certification order, the briefs filed in this court, and the appendix filed in this court. We greatly appreciate the Utah Supreme Court's consideration of this request, and we recognize the discretion of the Utah Supreme Court to reformulate the question posed.

The appeal is ABATED pending resolution of the certified question. Within 30 days of the date of this order, and every 30 days thereafter, the parties shall file a joint report advising this court of the status of the proceedings before the Utah Supreme Court. The parties shall notify this court within 10 days of the Utah Supreme Court's issuance of any orders or opinion regarding the certified question.

Entered for the Court

FOOTNOTES

1.   Because Appellant was a minor at the time of the incident and was consistently referred to as Jacob in the parties’ briefing, we have followed that convention in this order.

2.   The Utah Supreme Court recently modified the prelitigation panel review requirement. See Vega v. Jordan Valley Med. Ctr., LP, 449 P.3d 31 (Utah 2019).

3.   The parties dispute whether Jacob preserved this issue for appeal. Our review of the briefing before the district court confirms that he did. In his Opposition to Wingate's Motion to Dismiss, Jacob plainly argued that “Wingate is not a provider of health care and Jacob's injuries did not arise out of or relate to the providing of health care.” App. at 65. This argument sufficed to preserve the issue—which the district court squarely addressed—for appeal. See Yee v. City of Escondido, 503 U.S. 519, 534, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992) (“Once a ․ claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below.”); U.S. Aviation Underwriters, Inc. v. Pilatus Business Aircraft, Ltd., 582 F.3d 1131, 1147 (10th Cir. 2009) (holding issue preserved where “[t]he parties argued, and the district court definitively ruled on, the precise objection raised on appeal”); Century 21 Real Estate Corp. v. Meraj Int'l Inv. Corp., 315 F.3d 1271, 1278 (10th Cir. 2003) (“To preserve an issue for appeal, a party must alert the district court to the issue and seek a ruling.”).

Timothy M. Tymkovich, Chief Circuit Judge