McVinnie v. UofU

McVinnie v. UofU

IN THE UTAH COURT OF APPEALS

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Jo Anne McVinnie, heir and personal representative of the deceased, Kenneth James McVinnie, and for his heirs, Christina Marie McVinnie and Jonathan William McVinnie,

Plaintiffs and Appellants,

v.

University of Utah Hospital,

Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030678-CA

Case No. 20030826-CA
 

F I L E D
(March 11, 2004)
 

2004 UT App 63

 

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Third District, Salt Lake Department

The Honorable Anthony B. Quinn

Attorneys: Jo Anne McVinnie, Sandy, Appellant Pro Se

David G. Williams, Brian P. Miller, and Bradley R. Blackham, Salt Lake City, for Appellee

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Before Judges Davis, Jackson, and Thorne.

PER CURIAM:

Jo Anne McVinnie filed two appeals in the same medical malpractice case. The appeal in Case No. 20030678-CA is taken from the dismissal of the complaint, and the appeal in Case No. 20030826-CA is taken from the denial of a motion for relief from judgment, denial of a motion for stay pending appeal, and denial of a motion to enlarge the time for compliance with the Utah Governmental Immunity Act. The appeals are before the court on the University of Utah Hospital's (University) motions for summary disposition of both appeals and on McVinnie's motion for summary disposition in Case No. 20030826-CA.

The University first argues that the dismissal of the complaint without prejudice is not a final appealable order and seeks dismissal of Case No. 20030678-CA for lack of jurisdiction. The dismissal without prejudice in this case "disposed of the case and has the effect of a final order, thus permitting appellate review." Hales v. Oldroyd, 2000 UT App 75,¶1, n.2, 999 P.2d 588. Because the dismissal concluded the action on the complaint and would require McVinnie to file a new complaint after fully complying with all statutory prerequisites, it is final for purposes of appeal. See Bowles v. State, 652 P.2d 1345, 1346 (Utah 1982) (stating if a new action must be commenced, the judgment ending the action is final for purposes of appeal).

The district court did not err in dismissing the complaint for failure to comply with requirements of the Utah Healthcare Malpractice Act (the Act). See Utah Code Ann. §§ 78-14-1 to -17 (2002 & Supp. 2003). If the requirements of the Act are not fully satisfied, the suit against a health care provider will be dismissed. See Carter v. Milford Valley Mem'l Hosp., 2000 UT App 21,¶13, 996 P.2d 1076. A plaintiff must give a prospective defendant "at least ninety days' prior notice of intent to commence an action." Utah Code Ann. § 78-14-8 (2002). The notice must either be served in the matter prescribed for service of a summons and complaint or "by certified mail, return receipt requested, in which case notice shall be deemed to have been served on the date of mailing." Id. Although McVinnie mailed her first notice of intent to commence action to the University on October 5, 2002, it was mailed by regular first class mail and did not satisfy the statute. McVinnie also failed to request and complete the required prelitigation panel review prior to filing her complaint on February 18, 2003. A party initiating a medical malpractice action "shall file a request for prelitigation panel review with the [Division of Occupational and Professional Licensing] within 60 days after the service of a statutory notice of intent to commence action under section 78-14-8." Utah Code Ann. § 78-14-12(2) (2002). McVinnie failed to comply with both statutory prerequisites before filing her complaint. There is no authority in the Act for allowing a plaintiff to cure a failure to satisfy the statutory prerequisites after filing a complaint. The district court did not err in dismissing the case.

McVinnie's second appeal is taken from denial of a motion to set aside the judgment under rule 60(b)(1) of the Utah Rules of Civil Procedure. In substance, the motion seeks to set aside the judgment based upon her mistake, surprise, or misunderstanding of the statutory prerequisites. McVinnie requested the trial court to excuse her from compliance with the Act, but demonstrated no basis upon which explicit statutory requirements can be disregarded based upon mistake, inadvertence, or neglect. See Utah R. Civ. P. 60(b)(1). The district court properly denied the motion.

McVinnie also appeals the denial of a motion to stay the dismissal pending appeal. Rather than an appeal, a properly supported motion for stay should have been filed in the appellate court after the trial court's denial. See Utah R. App. P. 8. Finally, McVinnie appeals the denial of a motion to enlarge the time for compliance with the Utah Governmental Immunity Act, Utah Code Ann. §§ 63-30-1 to -38 1997 and (Supp. 2003). Because the complaint had been dismissed, and an appeal was pending, there was no case before the district court in which to seek this relief. McVinnie also cited no authority allowing the district court to suspend the requirements of those statutes. The district court did not err in denying the motions. McVinnie's arguments regarding the statute of limitations and her alleged mental incapacity are not properly before the court because the dismissal was not based upon the statute of limitations.

On the basis of the foregoing, we grant the University's motions for summary disposition of Case No. 20030678-CA and Case No. 20030826-CA, and deny McVinnie's motion for summary reversal in Case No. 20030826-CA. Accordingly, we affirm the dismissal of the complaint, and the denials of the motion to set aside judgment, motion for stay, and motion for enlargement of time.

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James Z. Davis, Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge