This opinion is subject to revision before final
publication in the Pacific Reporter
2024 UT 31
IN THE
SUPREME COURT OF THE STATE OF UTAH
JANE DOE H.P., et al.,*
Appellants,
v.
DAVID H. BROADBENT, M.D., et al.,*
Appellees.
No. 20220917
Heard October 20, 2023
Filed August 8, 2024
On Direct Appeal
Fourth District, Provo
The Honorable Robert C. Lunnen
No. 220400226
Attorneys*:
Terence L. Rooney, Jefferson W. Gross, J. Adam Sorenson,
Salt Lake City, for appellants
Troy L. Booher, Caroline A. Olsen, Taylor P. Webb,
David J. Jordan, Jordan C. Bledsoe, Salt Lake City, for appellee
Intermountain Healthcare
__________________________________________________________
* Additional Appellants: Jane Does P.H., C.H., B.K., B.B., S.M.,
R.U., H.M., K.H., E.B., A.S., M.T., A.G., S.B., K.S., M.P., S.P., B.H.,
A.W., S.O., M.Z., M.R., C.G., T.M., M.M., K.W., J.S., C.S., C.C., M.C.,
K.A., S.A., R.D., D.B., J.C., L.W., C.W., S.L., E.M., A.F., A.M., A.A.,
B.W., W.D., M.I., L.B., S.E., D.M., J.B., K.C., J.A., I.A., C.Y., R.P.,
G.A., S.S., R.B., R.A., J.D., D.F., M.A., T.L., T.A., T.G., A.T., S.I., K.B.,
L.C., J.T., R.C., A.I., A.D., H.Z., E.N., L.H., C.M., N.A., H.G., F.A.,
R.M., A.B., S.C., A.J., A.E., S.N., M.E., A.L., T.S., C.L., S.U., C.T., C.I.,
T.H., L.S., and Jane Does 1–100.
Additional Appellees: Intermountain Healthcare, Inc. dba
Utah Valley Hospital; HCA Healthcare, Inc. dba MountainStar
Healthcare, a Delaware corporation; and Does 1–50.
JANE DOE H.P. v. BROADBENT
Opinion of the Court
Additional Attorneys: Christian W. Nelson, Brandon B.
Hobbs, Kristina H. Ruedas, Aaron T. Cunningham, Karra J. Porter,
Rebecca L. Hill, Anna P. Christiansen, Salt Lake City, for appellee
David H. Broadbent, M.D.; Tawni J. Anderson, Eric P. Schoonveld,
Tucker F. Levis, Salt Lake City, for appellee HCA Healthcare Inc.
dba MountainStar Healthcare. Annika B. Barkdull, Washington,
D.C., for amicus curiae Independent Women’s Law Center, in
support of appellants.
JUSTICE PETERSEN authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE PEARCE, JUDGE CHRISTIANSEN FORSTER,
JUDGE ORME, and JUDGE TENNEY joined.
Having recused themselves, CHIEF JUSTICE DURRANT,
JUSTICE HAGEN, and JUSTICE POHLMAN do not participate herein;
COURT OF APPEALS JUDGE MICHELE M. CHRISTIANSEN FORSTER,
JUDGE GREGORY K. ORME, and JUDGE RYAN D. TENNEY sat.
JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 Ninety-four former patients of David Broadbent, an
obstetrician and gynecologist (OB-GYN), have sued him, alleging
that Broadbent sexually assaulted them under the guise of
providing medical treatment. Their claims against Broadbent
include sexual battery, sexual assault, and intentional infliction of
emotional distress.
¶2 Broadbent and the other Defendants in this case moved to
dismiss the Plaintiffs’ claims in the district court. They argued that
the Plaintiffs had essentially alleged a medical malpractice action
but had failed to comply with the prelitigation requirements of the
Utah Health Care Malpractice Act (the Malpractice Act or Act). The
district court agreed and dismissed the case.
¶3 The Plaintiffs have appealed that decision to us. They
argue that their claims are not subject to the Malpractice Act, so
they were not required to comply with its prelitigation
requirements.
¶4 We agree with the Plaintiffs that their claims are not
covered by the Malpractice Act. The Act applies to any
“malpractice action against a health care provider.” UTAH CODE
§ 78B-3-404(1). It defines a malpractice action as “any action against
2
Cite as: 2024 UT 31
Opinion of the Court
a health care provider . . . based upon alleged personal injuries
relating to or arising out of health care rendered . . . by the health
care provider.” Id. § 78B-3-403(18) (emphasis added). Here, the
Plaintiffs do not allege they were injured by any health care that
Broadbent may have provided them. Rather, they allege that he
abused his position as their doctor to sexually assault them under
the pretense of providing health care. The point of their claims is
that his actions were not really health care at all. And the fact that
Broadbent committed the alleged sexual assaults during medical
appointments or examinations does not bring that conduct within
the Malpractice Act’s definition of health care because the Plaintiffs
allege Broadbent’s abusive conduct had no medical purpose and
was outside the scope of any legitimate health care he provided
them.
¶5 Accordingly, we conclude that the Malpractice Act does
not apply to the Plaintiffs’ claims because they have not brought an
action “based upon alleged personal injuries relating to or arising
out of health care rendered” by Broadbent. We therefore reverse
the district court’s dismissal of the Complaint.
BACKGROUND1
¶6 For more than four decades, David Broadbent worked as
an OB-GYN in Provo, Utah. He saw patients in his own office on
University Avenue or at Utah Valley Hospital (which is run by
Defendant Intermountain Healthcare) or Timpanogos Regional
Hospital (which is run by Defendant MountainStar Healthcare).
¶7 Ninety-four of Broadbent’s former patients filed this
lawsuit, alleging that he sexually assaulted them under the guise of
providing obstetric or gynecological treatment. In the Complaint,
each Plaintiff relates her experience with Broadbent and alleges
that she was subjected to acts of sexual abuse. Because of the
number of Plaintiffs, we recite the allegations of a selection of them
as representative examples.
__________________________________________________________
1 “[O]ur recitation of the facts underlying [the] Plaintiffs’
lawsuit is based on the allegations in their Complaint. Because this
appeal involves [the] Defendants’ motion to dismiss [the] Plaintiffs’
claims, we must assume all the factual allegations in the Complaint
are true and determine whether the claims fail as a matter of law.”
League of Women Voters of Utah v. Utah State Legislature, 2024 UT 21,
¶ 14, __ P.3d __. See also Peck v. State,
2008 UT 39, ¶ 2,
191 P.3d 4.
3
JANE DOE H.P. v. BROADBENT
Opinion of the Court
¶8 B.K. was referred to Broadbent after having a miscarriage.
When she arrived at her appointment, Broadbent discussed the
miscarriage with her “rather crudely,” and then asked if she had
ever had a pap smear. When she responded in the negative, he told
her, “We can do a pap smear today.” She told him no, that she
would “rather schedule another appointment” for that. But
Broadbent insisted, “We’re going to do one today.” He gave her a
sheet and told her to undress from the waist down. B.K. did as he
asked because she thought, “he is a doctor, someone who should
be trusted and has the expertise to recognize if there is something
wrong.” Broadbent began the exam and inserted a speculum in
B.K.’s vagina—and she then realized he had also put a finger in her
rectum. When he finished, she began to cry. He then announced
that he was going to do a breast exam. He “put his hands under her
sweatshirt, palmed both of her breasts, squeezed them once, and
was done.” B.K. left feeling “frustrated, angry, upset, . . .
overwhelmed[,] . . . awful, gross, and violated.”
¶9 H.P. went to Broadbent to be checked for a sexually
transmitted illness. Broadbent joked that the swab would be
painful and that he would need to swab her until he counted to one
hundred. H.P. thought Broadbent was joking, but he held the swab
in her vagina and moved it around slowly as he counted to one
hundred.
¶10 P.H. visited Broadbent to get a prescription for birth
control before her wedding. Upon learning that P.H. had not had
sex before, Broadbent said, “your fiancé is pretty lucky to get to
have sex with a girl like you.” Broadbent told her she would not
need a pap smear because she was only nineteen and not sexually
active, but then said he would “just take a look and make sure
everything was good” before prescribing her birth control. He
warned her that sex hurts the first time because a man’s penis is
equivalent to three to four fingers in width. He told her she was
unprepared for what she would experience. Then, without
warning, he said, “Watch this,” and stuck three fingers into P.H.’s
vagina. She tensed up and tried not to cry. Broadbent asked,
“How’s that feel?” P.H. said it was uncomfortable. And he advised
her to “work on stretching herself in a warm bath.”
¶11 R.P. was a patient of Broadbent’s for eight years and had
three children during that time. She saw Broadbent for her first
gynecological appointment at the age of nineteen. At this
appointment, he performed a pelvic exam, during which he
“suddenly put his fingers in her rectum without any warning.” He
4
Cite as: 2024 UT 31
Opinion of the Court
then “took his gloves off, lifted up her shirt and underwire bra, and
started feeling her breasts.” She alleges that over the years,
Broadbent “frequently performed” similar “pelvic exams.” During
the exams, he would make comments such as “you like that” or “all
the girls like this part” as she “squirmed on the table in pain.” After
each appointment, R.P. would go to her car crying and try to forget
about the experience. She felt “terrible,” but assumed “it was all
routine and that the fact that she left in so much pain and with
feelings of being violated meant there was something wrong with
her.”
¶12 C.G. went to Broadbent because she was having painful
cramping during her periods. He had her undress so he could
perform a physical exam. During the “exam,” he “grabbed [her]
breasts and . . . continually squeez[ed] them,” and told her he
needed to make sure her “nipples could get hard.” “He rubbed,
squeezed, and played with them until they got hard.” Then, with
his ungloved hand, he “insert[ed] his index finger into her vagina,
his middle finger in her rectum, and pushed them deep enough to
rest his thumb on her clitoris, . . . . then began moving them in a
circular motion which caused excruciating pain.” After the
appointment, she was “extremely uncomfortable” and said she
“never wanted to go back.” But as it was her first appointment with
a doctor other than her pediatrician, “she did not know what to
expect or what was normal.”
¶13 S.O. went to Utah Valley Hospital to give birth. Her
regular OB-GYN was unavailable, and Broadbent delivered her
baby because he was the on-call doctor at the time. After the
delivery, Broadbent went to S.O.’s recovery room. She alleges that,
[W]hile talking about something related to the actual
delivery, Broadbent slid his hand down [her] hospital
gown and pinched the nipple on her right breast. His
hand did not linger and he did not feel around—it
was literally a hard, painful pinch, followed
immediately by removing his hand. During the entire
incident, Broadbent continued speaking and did not
break eye contact with [her]; in fact, he continued
discussing the delivery as though he had not done
anything.
She was “shocked and embarrassed and was left feeling unsure and
telling herself that she had to be misunderstanding the situation.”
5
JANE DOE H.P. v. BROADBENT
Opinion of the Court
¶14 T.S. saw Broadbent twice for prenatal appointments. At
both appointments, Broadbent felt her breasts with one hand and
thrust his fingers in her vagina and rectum with the other hand, as
he hit his body against the exam table with each thrust.
¶15 L.C. went to Broadbent during her first pregnancy. At one
appointment, “Broadbent started feeling [her] breasts in a way
which felt like he was feeling her up rather than examining her.”
This seemed odd to L.C. because “it was not her normal yearly
gynecological check-up.” But she did not object because “she was
unaware of what normal protocol was.” As she attended prenatal
appointments over the next six months, Broadbent “insisted on
vaginal exams using his fingers and breast checks at almost every
appointment.” L.C. switched to a different OB-GYN who only
delivered at American Fork Hospital because she was “so scared”
that Broadbent might end up delivering her baby as the on-call
doctor at Utah Valley Hospital.
¶16 Many of the Plaintiffs describe similar experiences with
Broadbent. They initially sought gynecological or obstetric care
from Broadbent directly or encountered him during a pregnancyrelated hospitalization at one of the facilities where he worked.
They allege that at some point during their appointments,
Broadbent sexually assaulted them under the pretense of providing
a medical examination or treatment. Many of the Plaintiffs describe
feeling “distraught,” “terrible,” and “violated.” But they secondguessed their feelings because they trusted Broadbent’s expertise
as a doctor and assumed his conduct must have been routine
medical care.
¶17 The Plaintiffs explain that,
It was not until December 2021 when one of
Broadbent’s victims related her experience on a
podcast, causing numerous other accounts of women
being sexually abused by Broadbent to surface, that
Plaintiffs realized that they were not alone, and
Broadbent’s actions were not medically necessary—
they were unlawful. With this revelation and media
on this issue, numerous other women came forward
and started sharing their stories of being abused by
Broadbent.
¶18 The Plaintiffs collectively sued Broadbent, Intermountain
Healthcare, and MountainStar Healthcare, asserting seven causes
of action: sexual battery, sexual assault, negligent supervision,
6
Cite as: 2024 UT 31
Opinion of the Court
fraudulent misrepresentation, joint venture, intentional infliction
of emotional distress, and negligent infliction of emotional distress.
The Complaint alleges that Broadbent committed acts of sexual
assault under the guise of providing medical treatment, causing
each woman to suffer trauma, pain, anxiety, and distress.
¶19 In response, the Defendants moved to dismiss the
Complaint for lack of subject matter jurisdiction. They asserted that
the Plaintiffs’ claims fall within the ambit of the Utah Health Care
Malpractice Act, and therefore the Plaintiffs were required to
comply with the Act’s prelitigation requirements. Because the
Plaintiffs had not done so, the Defendants argued that the district
court lacked jurisdiction over the matter.
¶20 The district court granted the motion to dismiss,
concluding that the Plaintiffs had alleged injuries that arose from
health care rendered by Broadbent—thus implicating the
Malpractice Act—and that they had failed to comply with the Act’s
prelitigation requirements.
¶21 The Plaintiffs appeal that decision. We exercise jurisdiction
under Utah Code subsection 78A-3-102(3)(j).
STANDARD OF REVIEW
¶22 “A district court’s dismissal of claims [for lack of subject
matter jurisdiction] . . . presents a question of law that we review
for correctness.” Granite Sch. Dist. v. Young, 2023 UT 21, ¶ 15,
537
P.3d 225 (cleaned up). “Also, we review the interpretation and
application of a statute for correctness, granting no deference to the
district court’s legal conclusions.” Berneau v. Martino,
2009 UT 87,
¶ 9,
223 P.3d 1128.
ANALYSIS
¶23 The question before us is whether the Plaintiffs have
alleged claims that are encompassed by the Utah Health Care
Malpractice Act. See UTAH CODE §§ 78B-3-401 to -454. If they have,
then the district court was correct to dismiss the Complaint because
it is undisputed that the Plaintiffs did not comply with the Act’s
prelitigation requirements.
¶24 The Plaintiffs argue that the Malpractice Act does not
apply here because the injuries they allege did not relate to or arise
from health care. Rather, they assert that although Broadbent may
have provided them with some actual medical treatment, their
injuries occurred when he stopped providing health care and
began sexually assaulting them for his own sexual gratification.
7
JANE DOE H.P. v. BROADBENT
Opinion of the Court
¶25 The Defendants contend that because the Plaintiffs’
alleged injuries originated from something Broadbent did during
otherwise medically indicated treatment, the Act’s broad scope
includes the Plaintiffs’ allegations. And they argue that the
Plaintiffs cannot evade the Malpractice Act’s requirements by
putting a different label on their claims.
¶26 We discuss the scope of the Act, with particular focus on
its definition of “health care.” And we conclude the conduct that
the Plaintiffs allege injured them does not fall within that
definition. Even though Broadbent’s alleged actions took place
during medical appointments or examinations, and even assuming
he provided some legitimate medical treatment at the time, this
does not transform his alleged acts of sexual assault into health
care, nor does it turn the Plaintiffs’ lawsuit into a malpractice
action.
I. THE MALPRACTICE ACT APPLIES TO ANY ACTION AGAINST A
HEALTH CARE PROVIDER FOR PERSONAL INJURIES RELATING TO OR
ARISING OUT OF HEALTH CARE RENDERED BY THE PROVIDER
¶27 Whether the Plaintiffs have brought a “malpractice action
against a health care provider” within the parameters of the
Malpractice Act is a question of statutory interpretation. See Scott v.
Wingate Wilderness Therapy, LLC, 2021 UT 28, ¶¶ 19–21,
493 P.3d
592. We first look to the statute’s plain language, including “its
linguistic, structural, and statutory context.” Olsen v. Eagle
Mountain City,
2011 UT 10, ¶ 9,
248 P.3d 465.
¶28 Before would-be plaintiffs can bring a “malpractice action
against a health care provider” in Utah, the Malpractice Act
requires that they take certain procedural steps. See UTAH CODE
§§ 78B-3-404 to -423 (2022);2 Scott,
2021 UT 28, ¶ 22. Plaintiffs must
__________________________________________________________
2 The legislature amended certain procedural components of
the Utah Health Care Malpractice Act in 2022, 2023, and 2024. See,
e.g., H.B. 318, 64th Leg., 2022 Gen. Sess. (Utah 2022) (amending
Utah Code section 78B-3-412); H.B. 201, 65th Leg., 2023 Gen. Sess.
(Utah 2023) (amending Utah Code section 78B-3-416). But we cite
and apply the version of the statute in effect at the time the
Plaintiffs filed this action in February 2022. See State v. Clark,
2011
UT 23, ¶ 14,
251 P.3d 829 (noting that “[w]hen it comes to the
parties’ procedural . . . responsibilities, . . . . [t]he law governing [the]
(continued . . .)
8
Cite as: 2024 UT 31
Opinion of the Court
first give the provider ninety days’ prior notice of intent to
commence the action, UTAH CODE § 78B-3-412(1)(a), and present
their case to a prelitigation panel, id. § 78B-3-416(2)(a), which
determines whether the claims have “merit” or “no merit,” id.
§ 78B-3-418(2)(a)(i). Plaintiffs must also file their complaint within
the Act’s time limits. Id. § 78B-3-404.
¶29 The Act defines a “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. § 78B-3-403(17) (2021).3
¶30 Of significance to this case, the Act 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.” Id. § 78B-3-403(10).4
__________________________________________________________
procedural occurrence is . . . the law in effect at the time of the
procedural act”).
3 The Plaintiffs have alleged injuries that occurred between
1979 and 2021, and the definitions of “health care” and
“malpractice action” have remained the same from the time the Act
was originally passed in 1976 until the time the events at issue
occurred. See Utah Health Care Malpractice Act, ch. 23, H.B. 35, § 3,
1976 Utah Laws at 91–93. While the definitions were originally
located in Utah Code subsections 78B-3-403(10) and 78B-3-403(17),
respectively, the subsections were renumbered in May 2022 as
78B-3-403(11) and 78B-3-403(18). See H.B. 318, 64th Leg., 2022 Gen.
Sess. (Utah 2022). These amendments make no change relevant to
our analysis, and we cite the version in effect at the time of the most
recent event at issue, which is 2021. See Clark, 2011 UT 23, ¶ 13 (“[I]f
a law regulates a . . . tort, we apply the law as it exists when the
alleged . . . tort occurs—i.e., the law that exists at the time of the
event giving rise to a cause of action.”).
4 In May 2023, the Legislature amended the Malpractice Act’s
definition of “health care” with a new provision that expressly
excludes sexual acts:
(continued . . .)
9
JANE DOE H.P. v. BROADBENT
Opinion of the Court
¶31 As we explained in Scott, when read together, these
provisions provide that,
[T]o constitute a “malpractice action against a health
care provider,” a claimant’s alleged injuries must:
(1) “relat[e] to or aris[e] out of”
(2) “health care,” i.e., “any act or treatment performed
or furnished, or which should have been performed
or furnished”:
(a) “for, to, or on behalf of a patient”;
(b) “during the patient’s medical care, treatment,
or confinement”; and
__________________________________________________________
(b) “Health care” does not include an act that, based
on the totality of the circumstances, is sexual in
nature regardless of whether:
(i) the act was committed under the auspice of
providing professional diagnosis, counseling, or
treatment; or
(ii) at the time the act occurred, the victim believed
the act was for medically or professionally
appropriate diagnosis, counseling, or treatment.
Medical Malpractice Amendments, S.B. 247, 65th Leg., 2023 Gen.
Sess. (Utah 2023) (codified at UTAH CODE § 78B-3-403(11)(b)),
https://le.utah.gov/~2023/bills/static/SB0247.html [https://perma
.cc/3UQ7-YS7D]. The general description of S.B. 247 states: “This
bill clarifies what health care means in the context of a medical
malpractice action.” Id. The Defendants argue that this “change
confirms that, before the amendment, the Act’s definition of ‘health
care’ had no such exclusion,” and that by passing the amendment,
“the Legislature effectively confirmed that the plaintiffs’
allegations fell within the scope of the pre-amendment version of
the Malpractice Act.” The Plaintiffs argue that S.B. 247 was “merely
a clarifying amendment” evidencing that the legislature took the
initiative to clarify a misreading of the Act by some courts. We find
it unnecessary, however, to speculate about the legislature’s
reasons for amending the definition of health care, because the
language of the applicable version of the Act is clear.
10
Cite as: 2024 UT 31
Opinion of the Court
(c) by a listed “health care provider” or others
“rendering similar care and services,” or their
“officers, employees, or agents . . . acting in the
course and scope of their employment.”
2021 UT 28, ¶ 26 (citing UTAH CODE § 78B-3-403(10), (12), (17)). “If
any one of the elements is not met, the Act does not apply.” Id. ¶ 66.
II. THE PLAINTIFFS HAVE NOT ALLEGED CLAIMS FOR INJURIES
RELATING TO OR ARISING OUT OF HEALTH CARE
¶32 Applying this analytical framework to the Plaintiffs’
claims, some of the elements are not in dispute. Each Plaintiff
alleges that she was a patient of Broadbent at some point. And the
Plaintiffs do not dispute that Broadbent and the other Defendants
are health care providers. So there is no question that the Plaintiffs
have brought “an[] action against . . . health care provider[s].”
UTAH CODE § 78B-3-403(17). And with respect to the definition of
“health care,” there is no dispute that the acts alleged to have
caused the Plaintiffs’ injuries were performed “by a listed health
care provider,” (element (2)(c) of the Scott framework), and that
those acts were “for, to, or on behalf of a patient,” (element (2)(a)).5
¶33 Thus, the core of the Plaintiffs’ argument involves element
(2)(b), in that they assert that the conduct that gave rise to their
injuries did not take place “during” their “medical care [or]
treatment.” While the Plaintiffs acknowledge that Broadbent may
have provided some of them with “some actual treatment,” they
emphasize that Broadbent’s acts of sexual abuse had no medical
purpose and therefore were not within the scope of the legitimate
medical treatment Broadbent provided them.
¶34 The district court concluded otherwise. It ruled that the
Plaintiffs’ injuries related to or arose out of health care, and
therefore their claims were subject to the Malpractice Act because
Broadbent’s “alleged misconduct” occurred “in the course of
obstetrical treatment.” The court reasoned this was so because
Broadbent is an OB-GYN who was “purportedly performing
OB-GYN services” during appointments addressing “obstetrical
__________________________________________________________
5 With respect to element (2)(a), the Plaintiffs do argue that
Broadbent’s actions were not “on their behalf.” But because the
Act’s definition is broader than that and includes actions that are
merely “to” a patient, we conclude that the Plaintiffs’ argument
primarily implicates element (2)(b).
11
JANE DOE H.P. v. BROADBENT
Opinion of the Court
issues”; the Plaintiffs “scheduled appointments to see Dr.
Broadbent” or “were referred to [him] for the purpose of a medical
examination”; they “sought medical advice and treatment related
to obstetrics”; the conduct occurred “within the confines of a
medical facility”; and Broadbent “us[ed] medical instruments[,]
and examinations often occurred on an exam table.”6 In all, the
court concluded that because “OB-GYNs commonly examine
sensitive, otherwise private areas of a woman’s person, including
the pelvic area generally, the vaginal area, and breasts,” the
“alleged misconduct” occurred “in the course of obstetrical
treatment.”
¶35 The court acknowledged that “not all alleged improper
acts performed during a medical exam must constitute medical
malpractice.” But it contrasted instances where a health care
provider’s misconduct was only tangentially related to the health
care provided—like a podiatrist engaging in the kind of
misconduct alleged in this case, or a physician stealing a patient’s
wallet during an appointment, see Dowling v. Bullen, 2004 UT 50,
¶ 11, 94 P.3d 915—with the circumstances alleged here. And the
court concluded that because the actions alleged to have caused the
Plaintiffs’ injuries occurred “in the course of obstetrical treatment,”
it followed that the Plaintiffs had alleged injuries related to or
arising from health care.
¶36 The Defendants’ argument on appeal is similar. They
contend that the Plaintiffs’ injuries relate to or arise out of health
care provided by Broadbent because “the prescribed scope of
obstetrical and/or gynecological care . . . necessitated some
touching of or communication about the patients’ bodies,” and it
was “during that care” that the alleged misconduct occurred. They
assert that the alleged misconduct was “inextricably intertwined
with the provision of such care.” Accordingly, they argue that
because the Plaintiffs allege injuries arising out of actions that were
performed “during a medically indicated exam or treatment,” the
Act applies.
__________________________________________________________
6 The district court also noted that during the motion to
dismiss hearing, the Plaintiffs’ counsel did not reject the possibility
of using a standard of care expert. We discuss later why the
Plaintiffs’ use of a medical expert would not bring their claims
within the purview of the Act. See infra ¶ 46 and note 7.
12
Cite as: 2024 UT 31
Opinion of the Court
¶37 This analysis is incorrect in light of the facts alleged in the
Complaint. To reiterate, the central dispute on appeal is whether
the Plaintiffs’ alleged injuries relate to or arise out of health care
performed by Broadbent. In this case, the answer turns on element
(2)(b) of the framework we provided in Scott for applying the
Malpractice Act’s definition of “health care”—namely, whether the
conduct from which the injuries arose (the alleged sexual assault)
occurred “during the patient’s medical care, treatment, or
confinement.” UTAH CODE § 78B-3-403(10) (emphasis added).
¶38 To start, it is important to accurately identify the Plaintiffs’
alleged injuries because the Act applies only where the “injuries
relat[e] to or aris[e] out of health care.” Id. § 78B-3-403(17) (emphases
added). And we caution that Broadbent’s alleged acts of sexual
abuse should not be conflated with the Plaintiffs’ injuries. Here, the
Plaintiffs’ alleged injuries include “pain, suffering, anxiety,
distress”; “[self] doubt[] . . . [and] lost trust in [self] and in authority
figures”; “hyper-vigilan[ce]”; “triggers that cause flashbacks”;
“damage to . . . self-worth, . . . depression, social anxiety, denial,
minimization . . . , suspicion of male intentions . . . [,] and shame”;
“fe[eling] violated, distraught, and gross”; “emotional distress,
humiliation, embarrassment, mental distress”; and “trauma.”
¶39 Then, we must identify the actions that the Plaintiffs allege
gave rise to these injuries. We assume, for purposes of this appeal,
that the Plaintiffs received some legitimate health care from
Broadbent. However, the Complaint alleges that it was Broadbent’s
acts of sexual abuse that gave rise to the Plaintiffs’ injuries. They
describe many specific incidents, which they allege were not part
of their medical treatment, had no medical purpose, and were
solely for Broadbent’s own sexual gratification. For example, S.O.
does not complain of any actions Broadbent took when delivering
her baby. Rather, she asserts that her injuries arose when he visited
her recovery room after the delivery and, without acknowledgment
or explanation, put his hand down her shirt and pinched her
nipple. C.G. alleges that her injuries arose when she went to
Broadbent because she was having painful menstrual cramps, and
among other things, he “grabbed [her] breasts and . . . continually
squeez[ed] them,” claiming he needed to make sure her “nipples
could get hard.” And P.H. alleges that her injuries arose when she
visited Broadbent to get a birth control prescription, and he
personally demonstrated how painful sex would be by suddenly
sticking three fingers in her vagina while exclaiming, “Watch this.”
The other Plaintiffs make allegations of the same nature.
13
JANE DOE H.P. v. BROADBENT
Opinion of the Court
¶40 The question here is whether these particular actions
constitute “health care” under the Malpractice Act. And the answer
turns on whether the acts were performed “during the patient’s
medical care, treatment, or confinement.” Id. § 78B-3-403(10); Scott
v. Wingate Wilderness Therapy, LLC, 2021 UT 28, ¶ 26,
493 P.3d 592
(listing “during” as element (2)(b) of a “malpractice action”). To
make this determination, we examine:
what was the scope of the care or treatment the health
care provider prescribed, ordered, designed, or
carried out for the patient; and whether a particular
act occurred during that treatment or care for the
patient—that is, whether the act explicitly or
implicitly falls within the scope, and in the course of,
the treatment or care prescribed, designed, or
ordered for the patient.
Scott, 2021 UT 28, ¶ 66.
¶41 The Defendants answer this question in the affirmative
because the Plaintiffs “uniformly allege that [Broadbent] engaged
in misconduct during an exam or treatment, which he could
undertake only because he also was performing medically
indicated acts.” For example, Broadbent was able to insert his
ungloved fingers into C.G.’s vagina and rectum, “push[ing] them
deep enough to rest his thumb on her clitoris,” only because he was
already performing a physical exam to address painful cramping
during her periods. In this way, they emphasize the timing of the
misconduct.
¶42 But we have made clear that “during” means more than
that the acts took place at the time of a medical appointment or
exam. Id. ¶ 28 (“[N]ot every act a ‘health care provider’ performs is
‘health care’ within the Malpractice Act’s meaning.”). For an act to
occur “during” the treatment of a patient, it must also “fall[] within
the scope . . . of[] the treatment or care prescribed, designed, or
ordered for the patient.” Id. ¶ 66 (emphasis added). We provided a
stark example of this in Dowling v. Bullen, where we hypothesized
that the Act would not apply to a patient’s tort claim for conversion
based on a physician stealing the patient’s wallet during a medical
examination. 2004 UT 50, ¶ 11.
¶43 The Defendants argue that the facts here are
distinguishable from the hypothetical in Dowling, because
Broadbent’s alleged misconduct was “inextricably intertwined
with” and “more than ‘only tangentially related’” to Broadbent’s
14
Cite as: 2024 UT 31
Opinion of the Court
provision of obstetric and gynecological care. But this is insufficient
to bring the acts within the scope of the Plaintiffs’ medical
treatment. In Scott, we drew upon the theft example to explain that,
Even if the doctor is a “health care provider” and had
provided “health care” during the patient’s visit, the
patient’s loss of cash is not an injury that originated
from the provision of health care. Theft cannot
reasonably be said to be an act or treatment “for, to,
or on behalf of” the patient, nor in the course of or
“during the patient’s medical care, treatment, or
confinement.” Even using the broadest view of
“medical care, treatment, or confinement,” there is no
conceivable medical or health purpose of theft; nor is theft
an omission of or a negligent version of an act that does
have a medical or health purpose. Thus, the patient’s loss
of the wallet does not “relate to or arise out of health
care.”
2021 UT 28, ¶ 69 (cleaned up) (emphasis added).
¶44 This rationale applies here. We have interpreted “during”
to have not just a temporal but a substantive component. To
constitute health care, an act must be within “the scope of the care
or treatment the health care provider prescribed, ordered,
designed, or carried out for the patient.” Id. ¶ 66. In other words,
the acts must have some “conceivable medical or health purpose.”
Id. ¶ 69. And the Plaintiffs allege that the conduct that caused their
injuries had no medical or health purpose.
¶45 Thus, accepting the allegations in the Complaint as true,
Broadbent’s alleged abusive acts are not health care under the
Malpractice Act just because they occurred at the time of a medical
exam. Nor are they health care because Broadbent’s position as an
OB-GYN gave him an enhanced opportunity to commit the alleged
acts under the guise of medical necessity. Certainly, this may make
the claims more difficult for the Plaintiffs to prove. They will have
to prove the elements of the claims they have chosen to bring,
which include sexual battery, sexual assault, and intentional
infliction of emotional distress. And, to use the district court’s
example, these claims might be easier to prove if Broadbent were a
podiatrist who interrupted his treatment of the Plaintiffs’ feet to
engage in the alleged misconduct. But sexual assault does not fall
within the scope of medical treatment regardless of whether it is
perpetrated by a podiatrist or an OB-GYN.
15
JANE DOE H.P. v. BROADBENT
Opinion of the Court
¶46 Accordingly, we conclude that the Plaintiffs have alleged
claims that are not covered by the Malpractice Act. To be subject to
the Malpractice Act, the alleged injury must arise from or relate to
an act that was within the scope of the patient’s medical treatment
and had some medical or health purpose. The point of the
Plaintiffs’ claims is that although Broadbent purported to be
conducting medical exams and providing medical treatment, his
actions were not medically necessary. They allege that his acts
constitute sexual abuse, done only for his own gratification. These
claims do not fall within the ambit of the Malpractice Act.7
CONCLUSION
¶47 We hold that the Plaintiffs have not asserted claims within
the bounds of the Malpractice Act because they do not allege
injuries arising out of or related to health care provided by
Broadbent. Indeed, the crux of the Complaint is that their injuries
were caused by actions that were not medical treatment and had
no medical purpose.
¶48 We reverse.
__________________________________________________________
7 In concluding that the Plaintiffs’ claims were encompassed
by the Malpractice Act, the district court noted that the Plaintiffs
did not “summarily reject” the notion that a standard of care expert
might be useful to their case. We do not intend to pre-judge
evidentiary issues that might arise in this case going forward. But
we note generally that where the Plaintiffs’ claims do not fall within
the parameters of the Malpractice Act, the nature of their claims
would not change, nor would they be drawn under the umbrella of
the Act, if they were to use a medical expert to help prove the
elements of their claims.
16
