Today the Utah Court of Appeals (Mortensen/Forster/Appleby) affirmed Judge Barry Lawrence’s denial of the defense post-trial motions in the Salt Lake wrongful death case of Sprague v. Avalon Care Center, 2019 UT App 107.
This was a wrongful death case arising out a death said to be caused by a pressure ulcer that developed at Avalon Care. (See my earlier blog posts of November 16, 2017 and December 18, 2017 for a fuller description of the allegations and the trial.)
On appeal, the defense had issues with the qualifications of the plaintiff’s experts on the standard of care issues. In particular, that not all of the opinions were specifically phrased in terms of “reasonable medical certainty.” The appellate court held that Utah does not require that an expert expressly invoke the words “reasonable degree of medical probability/certainty”– it is the substance of the testimony taken as a whole that sufficiently expresses a degree of medical certainty, not whether the incantation itself is used. And, in any event, the relevant expert did preface his opinions generally with a statement of “reasonable medical probability.”
Other “expert” issues considered and rejected by the Court were the scope of permissible cross examination, the foundation needed for a doctor to testify on the nursing standard of care, the foundations for an expert to testify on medical expenses, and foundation for admission of a death certificate. The lack of demonstrable prejudice was also stressed by the three-judge panel.
Appellee’s counsel: Karra Porter, of Christensen & Jensen. Trial counsel were Norm Younker, Ashton Hyde, and John Macfarlane.
