Munson v. Chamberlain

2007 UT 91
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Rebekah Munson, 	No. 20060447
Plaintiff and Appellant,
v.
Bruce H. Chamberlain, M.D., and 	F I L E D
Central Utah Medical Clinic,
Defendants and Appellees. 	November 9, 2007
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Fourth District, American Fork
The Honorable Derek P. Pullan
No. 050100024
Attorneys: 	Kenneth Parkinson, Provo, for plaintiff
Curtis J. Drake, Troy L. Booher, Salt Lake City, for
defendants
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PARRISH, Justice:
INTRODUCTION
¶1 	Rebekah Munson’s counsel provided to an expert witness
two documents he had previously submitted to a medical
malpractice prelitigation panel. 	The question presented on
appeal is whether this act violated Utah Code section
78-14-12(1)(d) (2002), which imposes confidentiality requirements
on proceedings before such panels. 	We hold that it did not.
Because Munson’s counsel had independent access to the documents,
he was free to provide them to the expert witness without
violating the statute.
BACKGROUND
¶2 	Munson claims that Dr. Bruce Chamberlain misdiagnosed
her condition and unnecessarily prescribed medication that caused
her harm. 	Before Munson could initiate a medical malpractice
lawsuit against Central Utah Medical Clinic and Dr. Chamberlain
(collectively, “defendants”), the Utah Health Care Malpractice

No. 20060447 	2
Act, Utah Code Ann. §§ 78-14-1 to -18 (2002 & Supp. 2007),
required her to take two preliminary steps. 	In compliance with
these statutory requirements, Munson first served on defendants a
notice of her intent to commence an action as mandated by Utah
Code section 78-14-8. 	She then submitted her claim to review by
a prelitigation panel as required by Utah Code section
78-14-12(1)(c). 	As part of the prelitigation review, Munson
submitted various documents to the panel, including her medical
records; the notice of intent; and an opinion letter prepared by
Dr. Greg Kane, a medical expert Munson had retained to evaluate
her case. 	Following completion of the prelitigation review
process, Munson initiated a lawsuit against defendants.
¶3 	After filing suit, Munson hired a second medical
expert, Dr. Alexander Jacobs, for the purpose of testifying at
trial. 	Munson’s counsel provided Dr. Jacobs with a comprehensive
set of documents, including Munson’s medical records, a copy of
the notice of intent, and a copy of Dr. Kane’s opinion letter.
On the morning of trial, defendants moved to disqualify
Dr. Jacobs from testifying because he had viewed the notice of
intent and the opinion letter. 	Defendants asserted that Munson’s
counsel had violated the confidentiality requirements of Utah
Code section 78-14-12(1)(d) by showing the documents to
Dr. Jacobs. 	They further asserted that they had been prejudiced
by this act because they could not cross-examine Dr. Jacobs about
his reliance on the documents without violating the
confidentiality requirements themselves.
¶4 	Relying on our decision in Doe v. Maret, 1999 UT 74,
¶ 21, 984 P.2d 980, the district court held that the
confidentiality requirements had been violated and that sanctions
were appropriate. 	The district court thereafter barred
Dr. Jacobs from testifying, declared a mistrial, and ordered
Munson to pay defendants’ costs incurred in connection with
Dr. Jacobs’ testimony.
¶5 	Over a year and a half later, defendants moved for
summary judgment because Munson had yet to designate an expert
witness to replace Dr. Jacobs. 	In response, Munson filed a
motion to reconsider the order of mistrial and the
disqualification of Dr. Jacobs. 	The district court denied
Munson’s motion to reconsider and granted summary judgment to
defendants.
¶6 	Munson appealed, arguing that the district court erred
in ruling that the notice of intent and the opinion letter were
protected by the confidentiality provisions of Utah Code section
78-14-12(1)(d). 	Because the interpretation of section

1 Prelitigation panel review need not be completed if the
prelitigation hearing is not held within 180 days of the filing
of a request for prelitigation panel review, Utah Code Ann.
§ 78-14-12(3)(b) (2002), or if “[t]he claimant and any respondent
. . . agree by written stipulation that no useful purpose would
be served by convening a prelitigation panel under this section,”
id. § 78-14-12(3)(c)(i).
3 	No. 20060447
78-14-12(1)(d) is an issue of law, we review the decision below
for correctness. 	See State v. Burns, 2000 UT 56, ¶ 15, 4 P.3d
795.
ANALYSIS
¶7 	The Utah Health Care Malpractice Act, Utah Code Ann.
§§ 78-14-1 to -18 (2002 & Supp. 2007), mandates that a plaintiff
satisfy two preliminary requirements before initiating a
malpractice lawsuit against a health care provider. 	First, the
potential plaintiff must serve the health care provider with a
notice of intent to commence an action at least ninety days prior
to initiating suit. 	Id. § 78-14-8 (2002). 	The notice of intent
must include “a general statement of the nature of the claim, the
persons involved, the date, time and place of the occurrence, the
circumstances thereof, specific allegations of misconduct on the
part of the prospective defendant, the nature of the alleged
injuries and other damages sustained.” 	Id.
¶8 	Second, the potential plaintiff must file a request for
review before a prelitigation panel. 	Id. § 78-14-12(2)(a). 	A
copy of the notice of intent must be included with the request
for prelitigation review. 	Id. § 78-14-12(2)(b). 	Upon completion
of the prelitigation review by the panel, 1 and after the ninety-
day compulsory waiting period from the service of the notice of
intent has run, the plaintiff may commence formal litigation.
Id. §§ 78-14-8, -12(1)(c).
¶9 	Under the statute, the proceedings of prelitigation
panels are “confidential, privileged, and immune from civil
process.” 	Id. § 78-14-12(1)(d). 	In a previous case, Doe v.
Maret, we summarily held that the notice of intent was protected
under the statute as part of the “proceedings” before the
prelitigation panel. 	1999 UT 74, ¶ 21, 985 P.2d 980. 	This case
presents us with a similar claim, requiring us to address whether
documents presented to a prelitigation panel are transfigured
into confidential documents by virtue of being presented to the
panel.

2 We note that Utah Code section 78-14-12(1)(d) likewise
does not bar defendants from divulging the notice of intent or
introducing it into evidence. 	The notice of intent was served on
defendants pursuant to Utah Code section 78-14-8. 	Therefore,
defendants also had access to the notice of intent independent of
their participation in the proceedings rendered confidential by
Utah Code section 78-14-12(1)(d). 	The broad rule advocated by
(continued...)
No. 20060447 	4
¶10 	We hold that neither the plain language of the statute
nor the statutory purpose supports the broad interpretation of
the confidentiality requirement we recognized in Doe v. Maret.
This opinion clarifies the scope of the confidentiality
requirement imposed by section 78-14-12(1)(d), overruling any
contradictory precedent in Doe v. Maret.
I. 	THE SCOPE OF THE PROTECTION AFFORDED BY
UTAH CODE SECTION 78-14-12(1)(d)
¶11 	Defendants argue that Utah Code section 78-14-12
protects the documents and evidence submitted to prelitigation
panels, permanently rendering them confidential and privileged
for all purposes thereafter. 	We disagree. 	The plain language of
the statute, common law notions of confidential and privileged
communications, and policy considerations all dictate that the
protections afforded by the statute apply only to the actual
proceedings before such panels.
¶12 	First, the plain language of the statute does not
extend to material submitted to the panel. 	When interpreting a
statute, we look first to its plain language. 	See Bilanzich v.
Lonetti, 2007 UT 26, ¶ 13, 160 P.3d 1041. 	The plain language of
section 78-14-12(1)(d) extends only to the “proceedings”
conducted by prelitigation panels; it does not protect documents
or other evidence submitted to such panels. 	While both the
notice of intent and opinion letter were submitted to the
prelitigation panel, they were actually created by Munson’s
counsel and her expert consultant outside of the actual
proceedings before the panel.
¶13 	Because Munson had previously authored and served the
notice of intent according to Utah Code section 78-14-8, she had
access to that document independent of the proceedings described
in Utah Code section 78-14-12. 	Munson also had independent
access to the opinion letter because she acquired it directly
from Dr. Kane. 	In short, while both the notice of intent and the
opinion letter were submitted to the panel, Munson had access to
them independent of her participation in the proceedings. 2

2 (...continued)
defendants, which would render the notice of intent completely
confidential after it is submitted to the prelitigation panel,
has the potential to seriously handicap health care providers.
Until a complaint is filed, a potential defendant’s only source
of knowledge about the vital elements of a claim--such as the
identity of the potential plaintiff and the nature and date of
the claimed injury--is the notice of intent. 	If a potential
defendant were unable to share this basic information with
medical experts, insurance carriers, and even legal counsel in
order to evaluate the merits of the potential lawsuit, the entire
purpose of the prelitigation process would be negated.
Similarly, if defendants were independently able to obtain
Dr. Kane’s opinion letter through the discovery process, section
78-14-12(1)(d) would not bar them from introducing it into
evidence.
5 	No. 20060447
Because she had independent access to the materials, their use in
the pretrial proceedings did not render them confidential.
¶14 	Second, the common law traditionally interprets
privileges narrowly. 	We previously have concluded that because a
privilege has the undesirable effect of excluding relevant
evidence, the term “privileged” should be “‘strictly construed in
accordance with its object.’” 	Gold Standard, Inc. v. Am. Barrick
Res. Corp., 801 P.2d 909, 911 (Utah 1990) (quoting Jackson v.
Kennecott Copper Corp., 495 P.2d 1254, 1257 (Utah 1972)). 	We
have accordingly construed the scope of privileged communications
narrowly to protect only the communications themselves rather
than their contents.
¶15 	This approach is consistent with the one taken by the
United States Supreme Court in addressing the scope of the
attorney-client privilege, where it stated:
The protection of the privilege extends only
to communications and not to facts. 	A fact
is one thing and a communication concerning
that fact is an entirely different thing.
The client cannot be compelled to answer the
question, “What did you say or write to the
attorney?” but may not refuse to disclose any
relevant fact within his knowledge merely
because he incorporated a statement of such
fact into his communication to his attorney.
Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981)
(internal quotation marks and brackets omitted); see also

No. 20060447 	6
Jackson, 495 P.2d at 1255, 1257 (holding that a smelting facility
that regularly forwarded emissions data to its legal counsel
“cannot foreclose the discovery process by the simple expedient
of funneling the matter into its counsel’s custody”); cf. Utah R.
Evid. 408 (noting that even though evidence of settlement
negotiations is inadmissible in Utah courts, “[t]his rule does
not require the exclusion of any evidence otherwise discoverable
merely because it is presented in the course of compromise
negotiations”).
¶16 	This same analysis supports our conclusion that the
privilege should extend only to the proceedings themselves, not
to the facts, documents, and other evidence submitted to
prelitigation panels. 	An overly broad application of the
confidentiality requirement--extending it to documents and
evidence that would otherwise be available through independent
sources--would unfairly influence future litigation by allowing
parties to use prelitigation proceedings as a device to
strategically obscure relevant facts, expert opinions, and other
legal documents through the simple expedient of presenting them
to a prelitigation panel. 	Prelitigation proceedings were never
intended to be a trap for the unwary whereby a party could lose
her ability to utilize otherwise available evidence or her
attorney’s or expert’s own work product.
¶17 	Finally, the public policies behind the prelitigation
panels and their attendant confidentiality requirement similarly
support a narrow interpretation of the confidentiality provision.
The stated purpose of the prelitigation panel proceedings is to
encourage “the early evaluation and settlement of [malpractice]
claims.” 	Utah Code Ann. § 78-14-2 (2002). 	But precluding the
future use of all opinion evidence and other documents submitted
to a prelitigation panel would discourage parties from submitting
this material to the panel, thereby severely limiting the panel’s
and the parties’ ability to honestly evaluate the potential
claim. 	In short, an overly broad application of Utah Code
section 78-14-12(1)(d) would undermine the very purpose of
prelitigation panel review.
¶18 	We conclude that documents and information obtained by
a party solely through participation in proceedings before a
prelitigation panel are confidential, privileged, and immune from
civil process pursuant to Utah Code section 78-14-12(1)(d). 	A
party is free, however, to share materials created by that party
or obtained by that party independent of the proceedings before
the panel. 	Because the items at issue in this appeal were, in
fact, created by Munson’s own counsel and consulting expert,
Munson’s counsel was free to disclose them to Munson’s testifying

3 Under our holding, counsel for defendants would be
precluded from disclosing or offering into evidence at trial
Dr. Kane’s opinion letter because defendants’ counsel had access
to the letter solely by virtue of participation in the
proceedings before the prelitigation panel. 	Once Munson provided
the letter to her testifying expert, however, she effectively
waived the privilege, rendering the letter available for use by
defendants’ counsel.
7 	No. 20060447
expert and defendants were then free to use them as a basis for
cross-examining that expert. 3
II. 	THE LAST PARAGRAPH OF DOE v. MARET
¶19 	In holding that Munson violated the confidentiality
requirements of Utah Code section 78-14-12(1)(d), the district
court relied heavily on our opinion in Doe v. Maret, 1999 UT 74,
¶ 21, 984 P.2d 980. 	In the last paragraph of that opinion, we
commented on a matter unrelated to the question at issue in that
appeal. 	Id. 	In his briefing to this court, Maret had attached a
copy of the notice of intent that he had received. 	Id. 	In her
reply brief, the plaintiff had asserted that this act violated
the confidentiality requirement of Utah Code section
78-14-12(1)(d). 	We agreed, stating, “Today we hold that because
the notice of intent serves as the basis for the prelitigation
panel review . . . it is part of the proceedings and must be kept
confidential.” 	Maret, 1999 UT 74, ¶ 21. 	While we declined to
impose any sanctions, we stated that future infractions could be
penalized. 	Id.
¶20 	Upon a more considered analysis of the issue, we
overrule the last paragraph of Maret. 	Although we are normally
bound by our own precedent, we may overrule it where “the
decision is clearly erroneous or conditions have changed so as to
render the prior decision inapplicable.” 	State v. Menzies, 889
P.2d 393, 399 n.3 (Utah 1994) (internal quotation marks omitted).
The Maret decision is clearly erroneous inasmuch as it suggests
that all documents submitted to a prelitigation panel are
confidential--a suggestion that is simply not supported by the
statutory language.
¶21 	Our decision to overrule the last paragraph of Maret is
supported by the fact that it “is not the most weighty of
precedents.” 	Id. at 399. 	The paragraph at issue was appended to
our opinion in Maret almost as an afterthought. 	Indeed, we
devoted only a single paragraph to our analysis of the issue, an
analysis consisting almost entirely of a conclusory sentence
asserting that because the notice of intent is part of the

No. 20060447 	8
proceedings, it must be kept confidential. 	This lack of
analysis, combined with the unique way in which the issue was
presented, reduces the precedential value of the applicable
language. 	Unlike the vast majority of cases in which we either
affirm or assign error to a decision by a lower court, in Maret
we were asked to exercise our inherent jurisdiction over the
proceedings before us to impose sanctions for an act that
occurred during briefing. 	Because of this unique procedural
posture, the issue did not benefit from the focus and refinement
afforded issues actually litigated in the lower courts.
Moreover, because the issue was first raised in a reply brief, we
were not able to benefit from any adversarial briefing of the
issue. 	We accordingly conclude that it is appropriate to
overrule the last paragraph of our opinion in Doe v. Maret.
CONCLUSION
¶22 	Munson did not violate the confidentiality requirements
imposed by Utah Code section 78-14-12. 	Thus, the district
court’s orders awarding sanctions, disqualifying Dr. Jacobs from
testifying, and awarding costs to defendants were erroneous.
Because Dr. Jacobs’ disqualification was the basis for the
summary judgment entered against Munson, the summary judgment was
also erroneous. 	We accordingly reverse the district court’s
order granting summary judgment and remand the case for further
proceedings consistent with this opinion.
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¶23 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish’s
opinion.