Lee v. Williams, 2018 UT App 16 (Jan. 25, 2018).

The district court dismissed the plaintiff’s medical malpractice claim on statute of limitations grounds after the jury found she knew that she “might have sustained an injury” more than two years before she filed her complaint. The Court of Appeals reversed and remanded for a new trial.  Among the various issues addressed on appeal, the Court held it was error for the district court to instruct the jury that “discovery of an injury from medical malpractice occurs when an ordinary person through reasonable diligence knows or should know that she might have sustained an injury.”  The addition of the words “might have” impermissibly relaxed the burden of proof that defendants were required to meet for their statute of limitations defense.  The Court also held the defendants’ pre-trial ex parte contact with a nurse who had treated the plaintiff was improper and warranted a sanction under Sorensen v. Barbuto, 2008 UT 8, regardless of whether confidential details of the plaintiff’s care were in fact discussed and regardless of whether actual prejudice resulted from the contact.