Zendler v. University of Utah Health Care

2020 UT App 143

THE UTAH COURT OF APPEALS

JOHN ZENDLER AND DEBORAH ZENDLER,
Appellants,
v.
UNIVERSITY OF UTAH HEALTH CARE, UNIVERSITY OF UTAH
HOSPITAL, UNIVERSITY HOSPITAL, UNIVERSITY OF UTAH HEALTH
SCIENCES CENTER, AND STATE OF UTAH,
Appellees.

Opinion
No. 20190512-CA
Filed October 22, 2020

Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 160907183

Melvin C. Orchard III and Jessica A. Andrew,
Attorneys for Appellants
Terence L. Rooney and J. Adam Sorenson, Attorneys
for Appellees

JUDGE KATE APPLEBY authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
FORSTER concurred.

APPLEBY, Judge:

¶1 John Zendler received a right knee replacement at the
University of Utah Hospital in June 2015. After surgery, Zendler
experienced multiple complications, including a serious
infection, which ultimately necessitated amputation of his right
leg. Zendler and his wife, Deborah Zendler (collectively,
Plaintiffs), sued the University of Utah Health Care, the
University of Utah Hospital, the University Hospital, the
University of Utah Health Sciences Center, and the State of Utah
(collectively, Defendants) seeking damages. Following
Zendler v. University of Utah Health Care

consideration of various motions, the district court entered
summary judgment in favor of Defendants. Plaintiffs appeal,
and we affirm.

BACKGROUND 1

¶2 In December 2014, Zendler consulted with a doctor (Utah
Doctor) at the University of Utah Orthopedic Center concerning
chronic right knee pain. Based on his symptoms, Utah Doctor
determined Zendler was a candidate for “total knee replacement
surgery of his right knee.” Utah Doctor informed Zendler that
“knee replacement surgery carries with it several significant and
substantial risks, including (1) infection requiring further
surgery or removal of implants; (2) massive infection requiring
amputation; and (3) life-threatening complications including
stroke, clot, heart attack, pulmonary embolism and death.”
(Quotation simplified.) Despite knowing these risks, Zendler
scheduled the elective surgery with Utah Doctor for June 2015, at
the University of Utah Hospital (the Hospital).

¶3 Between Zendler’s consultation with Utah Doctor in
December and the date of his surgery, Zendler developed
swelling in his non-operative left leg. Zendler visited three
physicians in his hometown in Wyoming. Those physicians
diagnosed him with lymphedema. 2

1. When reviewing a grant of summary judgment, we view the
facts and all reasonable inferences in the light most favorable to
the nonmoving parties. Anderson Dev. Co. v. Tobias, 2005 UT 36,
¶ 31, 116 P.3d 323.

2. According to Plaintiffs, “[l]ymphedema compromises the
body’s ability to heal and fight infection, significantly increasing
a surgical patient’s risk of post-surgical infection and associated
(continued…)

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¶4 About one week before his scheduled surgery, the
lymphedema symptoms in Zendler’s left leg intensified; his leg
became “very painful and extremely swollen, with pain
extend[ing] up [his] leg and into his groin.” Concerned by these
new symptoms, Zendler tried several times over the next few
days to contact Utah Doctor to discuss whether it was safe to
proceed with the scheduled surgery because of the lymphedema
in his non-operative leg. On Saturday, May 30, 2015, three days
before the surgery, Zendler spoke with Utah Doctor’s nurse,
who told him Utah Doctor recommended he postpone the
surgery until the lymphedema resolved. The nurse also
informed Zendler she would contact his hometown physician on
Monday to obtain information about his lymphedema testing.
Utah Doctor would then review the results and determine
whether to conduct a physical examination of Zendler’s leg that
day, but in the meantime, Zendler could “plan to proceed with
surgery,” and if the lymphedema was too serious to proceed, the
surgery would be cancelled at that time.

¶5 Utah Doctor’s office obtained and reviewed Zendler’s
medical records from his hometown physician. At that time,
Utah Doctor elected not to conduct a physical examination of
Zendler and instead determined to proceed with surgery. The
following day, on June 2, 2015, Zendler underwent a right knee
replacement at the Hospital. Before surgery, Zendler was again
informed of the risks of the procedure, including, as relevant
here, the risks of “nonhealing of the tissues and need for
reoperation, . . . infection requiring further surgery or removal of
implants, massive infection requiring amputation, or continued
or worse pain.” Having been informed of these risks, Zendler
then signed a consent form for the surgery.

(…continued)
complications. It causes infections to spread, persist[,] and be
more severe.”

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¶6 After surgery, Zendler was discharged from the Hospital
and returned home to Wyoming. He soon began experiencing
symptoms of infection and was eventually readmitted to the
Hospital on June 20, 2015, where he was diagnosed with “right
total knee periprosthetic joint infection” (the first infection).
While at the Hospital, Zendler’s infection was treated by Utah
Doctor, who performed a “right knee irrigation and
debridement.” The consulting infectious disease specialists at the
Hospital, in conjunction with Utah Doctor, also prescribed a six-
month course of antibiotics to treat the infection. On June 25,
2015, Zendler was again discharged from the Hospital.

¶7 In July 2015, Zendler began care with a doctor in
Wyoming (Wyoming Doctor). The following month, Wyoming
Doctor noted Zendler’s infected right knee was not causing
Zendler “fevers, chills, [or] sweats,” he had “returned to work
part time,” and he was experiencing only minimal pain, for
which he did not take any medication.

¶8 On September 9, 2015, Plaintiffs expressed a desire to
Wyoming Doctor to improve the range of motion in Zendler’s
right knee. Wyoming Doctor explained that if the knee infection
was not cured and the antibiotics were extended for another four
months, the delay would “limit the ability for [Zendler] to get
his range of motion back.” Wyoming Doctor then proposed
Zendler “abstain from the antibiotics for several weeks, re-
aspirate the knee and see if it is still infected.” If the infection
was eradicated, Wyoming Doctor would perform a revision knee
replacement of Zendler’s right knee at that time. Wyoming
Doctor further explained that although surgery could improve
Zendler’s range of motion in his right knee by “a few more
degrees,” the range could also “get worse.”

¶9 The following week, Wyoming Doctor noted Zendler
looked better “than he has for quite some time since the onset of
his infection.” Specifically, there was a “mild improvement of his

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lymphedema, no fevers, chills or sweats,” and his incision had
improved with the wound width decreasing. Wyoming Doctor
and Plaintiffs again discussed stopping the course of antibiotics
prescribed by Utah Doctor, ultimately concluding Zendler
would “cease all antibiotics” and Wyoming Doctor would “re-
evaluate him in three weeks, re-aspirate the joint to check for
evidence of recurrent infection and then talk about further
options regarding his arthrofibrosis.”

¶10 Zendler stopped all antibiotics, as discussed, and
Wyoming Doctor took cultures of Zendler’s knee, one in October
2015 and one in November 2015. Both cultures were “negative
for infection,” and Wyoming Doctor proceeded to surgery.

¶11 On December 3, 2015, Wyoming Doctor performed
surgery on Zendler’s right knee. Before surgery, Wyoming
Doctor examined Zendler, noting the infection in his right knee
“ha[d] resolved” and the “oblique incision over [his] knee” had
“closed.” Also at that time, Zendler’s right leg showed signs of
lymphedema. During surgery, Wyoming Doctor made incisions
on Zendler’s right knee to introduce tools “into the knee joint to
break apart adhesions from the initial surgery.” Wyoming
Doctor also injected steroids into Zendler’s knee joint during
surgery, and again in his office after surgery.

¶12 In January 2016, Zendler returned to Wyoming Doctor
with “a loss in his range of motion, swelling in his operative
knee, lymphedema that was not well controlled, and a mild
fever.” (Quotation simplified.) A culture was taken to test for
infection; three days later, Wyoming Doctor informed Zendler
“the culture came back positive for infection” (the second
infection). On January 25, Wyoming Doctor performed a second
surgery to remove Zendler’s prothesis and to treat the second
infection. The surgery was unsuccessful at eradicating the
second infection, and in August 2016, after several additional

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surgeries from providers at UCLA Medical Center, Zendler’s
right leg was amputated above the knee.

¶13 In November 2016, Plaintiffs filed a complaint against
Defendants asserting three causes of action. Defendants filed a
motion for summary judgment and a motion for partial
summary judgment. After argument and supplemental briefing,
the district court granted both of Defendants’ motions. Plaintiffs
timely appeal.

ISSUES AND STANDARD OF REVIEW

¶14 Plaintiffs argue the district court erred in dismissing their
claim that Utah Doctor failed to obtain informed consent prior to
performing surgery, as required by Utah’s informed consent
statute. They also argue the court erred in adopting Defendants’
affirmative defense that Wyoming Doctor’s treatment “was an
intervening superseding cause of all of Plaintiffs’ damages.” “We
review a district court’s decision to grant summary judgment for
correctness, granting no deference to the district court’s
conclusions.” Gillmor v. Summit County, 2010 UT 69, ¶ 16, 246
P.3d 102 (quotation simplified). 3

ANALYSIS

¶15 Rule 56 of the Utah Rules of Civil Procedure provides that
summary judgment is appropriate “if the moving party shows
that there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.” Utah R.

3. Plaintiffs also argue the district court erred in dismissing their
medical negligence claim. Because we affirm the court’s rulings
on the first two issues, this claim necessarily fails and
accordingly we do not address it.

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Civ. P. 56(a). Under this rule, “the extent of the moving party’s
burden varies depending on who bears the burden of persuasion
at trial.” Salo v. Tyler, 2018 UT 7, ¶ 26, 417 P.3d 581. “Where the
moving party would bear the burden of proof at trial, the
movant must establish each element of his claim in order to
show that he is entitled to judgment as a matter of law.” Orvis v.
Johnson, 2008 UT 2, ¶ 10, 177 P.3d 600. But when the movant
seeks summary judgment on a claim where the burden of
production falls on the nonmoving party, “the moving party
may carry its burden of persuasion without putting on any
evidence of its own—by showing that the nonmoving party has
no evidence to support an essential element of a claim.” Salo,
2018 UT 7, ¶ 2.

I. Causation

¶16 Plaintiffs argue the district court erred in adopting
Defendants’ affirmative defense that Wyoming Doctor’s care of
Zendler was a superseding cause of the injury. First, Plaintiffs
contend Utah Doctor, not Wyoming Doctor, caused Zendler’s
prosthetic infection. According to Plaintiffs, the infection that
arose after Utah Doctor performed the first surgery never
resolved but instead remained indolent, meaning the first
infection remained present but dormant. Second, they contend
that even if Wyoming Doctor’s subsequent care was a cause of
the injury, it was not sufficient to break any causal chain.

¶17 To succeed on a medical malpractice claim, “the plaintiff
must establish that the physician performed below the
applicable standard of care, proximately causing injury to the
plaintiff.” Pete v. Youngblood, 2006 UT App 303, ¶ 20, 141 P.3d
629; see also Ruiz v. Killebrew, 2020 UT 6, ¶ 9, 459 P.3d 1005.
“Proximate causation is that cause which in natural and
continuous sequence, unbroken by an efficient intervening
cause, produces the injury and without which the result would
not have occurred.” Kilpatrick v. Wiley, Rein & Fielding, 909 P.2d

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1283, 1292 (Utah Ct. App. 1996) (quotation simplified). “An
intervening cause is an independent event, not reasonably
foreseeable, that completely breaks the connection between fault
and damages.” Breton v. Clyde Snow & Sessions, 2013 UT App 65,
¶ 9, 299 P.3d 13 (quotation simplified).

¶18 Because the question of causation raises an issue of fact, it
is generally reserved for the jury. Steffensen v. Smith’s Mgmt.
Corp., 820 P.2d 482, 486 (Utah Ct. App. 1991). But a district court
may decide an issue of proximate cause as a matter of law where
“reasonable minds could not differ that something was or was
not the proximate cause of injury.” Jensen v. Mountain States Tel.
& Tel. Co., 611 P.2d 363, 365 n.4 (Utah 1980).

¶19 Here, Defendants argued as an affirmative defense that
Wyoming Doctor’s actions broke the chain of causation between
Utah Doctor’s alleged negligent care and the injury. Defendants’
affirmative defense hinged on the propositions that (1) Zendler’s
infection had resolved prior to Wyoming Doctor’s involvement,
and (2) Wyoming Doctor’s intervention caused a “second
infection” that would not have occurred without his actions.
Plaintiffs posit they presented evidence to the contrary on both
points, which the district court did not exclude or otherwise find
inadmissible but instead improperly weighed and used to make
factual findings. We disagree.

¶20 First, Wyoming Doctor and experts on both sides agreed
that at the time Wyoming Doctor intervened, Zendler’s infection
was under control, there were no obvious signs of infection, and
the wound was healing. In August 2015, after his hospital stay to
treat the first infection, Zendler reported to Wyoming Doctor he
was not experiencing fevers, chills, or sweats; his pain was
minimal; and he had returned to work parttime. The following
month, Wyoming Doctor noted improvement of Zendler’s
incision and lymphedema, and observed that Zendler “looks
better . . . than he has for quite some time since the onset of his

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infection.” Most importantly, after stopping Zendler’s
antibiotics, Wyoming Doctor took two cultures from Zendler’s
knee in October and November 2015. Each was negative for
infection, leading Wyoming Doctor to conclude, on December 3,
2015, that the wound “is closed” and “the infection has
resolved.”

¶21 Second, Wyoming Doctor broke the causation sequence
when he stopped Zendler’s antibiotics, performed surgery on
him, and injected immunosuppressant steroids into his knee. It
is undisputed that following the first infection, near the end of
June 2015, a team of orthopedic and infectious disease
specialists, in consultation with Utah Doctor, instructed Zendler
to complete a six-month course of antibiotics. But three months
later, Wyoming Doctor, who is not an infectious disease
specialist, intervened and stopped the antibiotics months before
the prescribed course was complete. Wyoming Doctor then
performed surgery on the recently healed knee. During surgery,
and again in his office, Wyoming Doctor injected steroids into
Zendler’s knee joint.

¶22 Based on expert testimony from both sides, we agree that
each of these actions was a separate efficient intervening cause of
the injury. First, Wyoming Doctor’s decision to prematurely stop
Zendler’s antibiotics was not reasonably foreseeable. One
infectious disease specialist observed that while the antibiotic
prescribed to Zendler has a normal success rate of “85 to 90
percent,” “if you stop that antibiotic prematurely, you increase
the odds of failure.” And Plaintiffs’ expert testified he would not
have stopped Zendler’s antibiotics without consulting with the
prescribing doctor, stating, “I literally have never unilaterally
stopped a treatment without some sort of input from the person
that owned the treatment . . . .”

¶23 Second, experts on both sides agreed that a post-surgical
infection from a knee replacement is serious and it is not easy to

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determine whether such an infection has resolved or merely
become indolent. Not only does performing surgery on a
recently infected knee present a higher risk of new infection, but
in this case, there was the additional risk associated with the
lymphedema present in Zendler’s operative leg at the time of the
second surgery. In addition, the second surgery carried with it
the risk of disturbing the first infection that may have been
indolent. In light of such widely recognized risks, it was not
reasonably foreseeable that Wyoming Doctor would perform the
second surgery.

¶24 Lastly, Wyoming Doctor’s act of injecting steroids into
Zendler’s knee was not reasonably foreseeable. Experts on both
sides testified about the impact of steroids on a patient’s ability
to fight infections. Each expert acknowledged a link between
steroids and infection. Wyoming Doctor agreed with the
consensus, testifying that injecting steroids into an infected knee
“could exacerbate an infection.”

¶25 Based on the foregoing, the district court correctly ruled
that Defendants had established their affirmative defense as a
matter of law. Testimony from experts on both sides indicated
Wyoming Doctor’s treatment was a superseding cause of the
injury because his decisions to stop Zendler’s antibiotics,
perform elective surgery on him, and inject him with steroids
were independent events, not reasonably foreseeable, that
effectively broke the causal connection between Utah Doctor’s
actions and Zendler’s eventual amputation. See Breton, 2013 UT
App 65, ¶ 9.

II. Informed Consent

¶26 Plaintiffs next argue the district court erred in dismissing
their informed consent claim by misapplying Utah’s informed
consent statute. They contend the statute “requires that
physicians inform each patient of his or her specific increased
risks” before performing surgery and assert Utah Doctor did not

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fulfill this obligation because he gave Zendler “the same
information as to potential bad outcomes that he gives to every
surgery patient.” Defendants counter that Plaintiffs’
interpretation expands the scope of the informed consent statute
beyond its plain language and urge us to affirm the court’s
determination that the disclosures provided by Utah Doctor
satisfied the plain language of the statute. We agree with
Defendants.

¶27 In Utah, claims for failure to obtain informed consent are
governed by statute. See Utah Code Ann. § 78B-3-406
(LexisNexis Supp. 2019). 4 That statute provides,

For a patient to recover damages from a health care
provider in an action based upon the provider’s
failure to obtain informed consent, the patient must
prove the following:

....

(iv) the health care rendered carried with it a
substantial and significant risk of causing the
patient serious harm;

(v) the patient was not informed of the substantial
and significant risk;

(vi) a reasonable, prudent person in the patient’s
position would not have consented to the health
care rendered after having been fully informed as

4. Because the statutory provisions in effect at the relevant times
do not differ materially from the statutory provisions now in
effect, we cite the current version of the Utah Code for
convenience.

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to all facts relevant to the decision to give
consent . . . .

Id. § 78B-3-406(1)(b).

¶28 The district court concluded Utah Doctor met the
statutory informed consent requirements based on the
undisputed facts that “on at least three occasions” Utah Doctor
conveyed to Zendler the potential risks specific to his surgery,
including the risk of “infection requiring further surgery or
removal of implants” and “massive infection requiring
amputation.” The court reasoned that “[w]hile there may be
multiple factors that result in these risks being substantial and
significant, the plain language of the informed consent statute
does not require doctors to parse out each factor with their
accompanying added percent-of-risk.” Accordingly, Plaintiffs
failed to establish the elements required to state a claim under
Utah Code section 78B-3-406.

¶29 We discern no error in the district court’s interpretation of
the informed consent statute. When tasked with interpreting a
statute, “we look first to the plain language of the statute.”
Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000 (quotation
simplified). We “presume that the legislature used each word
advisedly and give effect to each term according to its ordinary
and accepted meaning.” State v. Richardson, 2006 UT App 238,
¶ 13, 139 P.3d 278 (quotation simplified).

¶30 Under the plain language of the informed consent statute,
a medical provider must inform the patient “of the substantial
and significant risk[s]” of a procedure. Utah Code Ann. § 78B-3-
406(1)(b). Here, it is undisputed Zendler was informed multiple
times prior to surgery of the potential risks and benefits of the
procedure. In December 2014, during Zendler’s initial
consultation with Utah Doctor, Utah Doctor informed Zendler
that he “was a candidate for total knee replacement surgery on
his right knee.” Utah Doctor explained to Zendler that knee

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replacement surgery “carries with it several significant and
substantial risks, including (1) infection requiring further
surgery or removal of implants; (2) massive infection requiring
amputation; and (3) life-threatening complications including
stroke, clot, heart attack, pulmonary embolism and death.”
(Quotation simplified.) Knowing these risks, Zendler elected to
proceed with surgery. On the morning of surgery, Zendler and
Utah Doctor again discussed the potential risks, including
“infection requiring further surgery or removal of implants” and
“massive infection requiring amputation.” Following this
discussion, Zendler “signed consent willfully” to proceed with
surgery. The Hospital staff verified this consent a final time
immediately before Zendler was taken to the operating room.

¶31 Nevertheless, Plaintiffs argue Utah Doctor’s attempt to
obtain informed consent was insufficient because Zendler was
provided with only a list of “generic” risks, asserting “the law
requires that a patient be informed of his specific risks, given his
specific medical condition.” Thus, they contend Utah Doctor
“had a duty to inform [Zendler] that he faced not only a
significantly higher risk of developing an infection than a typical
patient due to his lymphedema, but that the consequences of
such an infection would be much more severe.” We disagree.

¶32 Plaintiffs’ argument would expand the scope of Utah’s
informed consent statute beyond its plain language to include
common law consent requirements. But our supreme court has
recognized “the informed consent statute displaces all common
law claims based on failure to inform a patient of the medical
risks posed by a medical procedure.” Daniels v. Gamma West
Brachytherapy, LLC, 2009 UT 66, ¶ 46, 221 P.3d 256. And the
disclosure requirements imposed by the statute are narrower
than their common law counterparts. Id. ¶ 50. The statute
requires health care providers to disclose only the risks of a
health care treatment that are “substantial and significant and
that could cause the patient serious harm,” whereas “the

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common law duty to disclose requires a physician to provide a
patient with any information material to the decision process of
an ordinary individual.” Id. (quotation simplified). 5 Thus,
Plaintiffs are not entitled to damages, because damages are
available only for claims satisfying the elements prescribed in
the informed consent statute, and the statute does not require
health care providers to parse out the percentage or likelihood of
each risk.

CONCLUSION

¶33 The district court did not err in concluding Plaintiffs
failed to establish causation. The court also did not err in
dismissing Plaintiffs’ informed consent claim, because Utah’s
informed consent statute does not require health care providers
to inform each patient of his or her specific increased risks.

¶34 Affirmed.

5. Indeed, Plaintiffs appear to conflate the disclosure
requirements under the informed consent statute with those
required under the common law. Plaintiffs cite Nixdorf v. Hicken,
612 P.2d 348 (Utah 1980), for the proposition that a doctor “must
supply the patient with the material facts the patient will need in
order to intelligently” make healthcare decisions. Id. at 354 nn.
18–19. But as our supreme court recognized in Daniels v. Gamma
West Brachytherapy, LLC, 2009 UT 66, 221 P.3d 256, the disclosure
requirements at issue in Nixdorf were imposed by the common
law duty to disclose rather than by statutory duty. See id. ¶ 50.

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