Aguila v. Planned Parenthood of Utah

2023 UT App 49

THE UTAH COURT OF APPEALS

ALYSSA AGUILA,
Appellant,
v.
PLANNED PARENTHOOD OF UTAH AND
ADRIANA RODRIGUEZ NAVARRO,
Appellees.

Opinion
No. 20210457-CA
Filed May 11, 2023

Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 210900821

Sarah Elizabeth Spencer and Kristen C. Kiburtz,
Attorneys for Appellant
Bradley M. Strassberg, Attorney for Appellee
Planned Parenthood of Utah
Richard A. Bednar and John E. Keiter, Attorneys for
Appellee Adriana Rodriguez Navarro

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.

MORTENSEN, Judge:

¶1 Alyssa Aguila sued both Planned Parenthood of Utah and
Adriana Rodriguez Navarro for negligence and breach of
fiduciary duty, claiming that Navarro—a medical assistant at
Planned Parenthood—had publicized Aguila’s private health
information and that Planned Parenthood was vicariously liable
for Navarro’s actions. Aguila also made direct claims against
Planned Parenthood for negligent hiring, training, and
Aguila v. Planned Parenthood

supervision. The district court dismissed all claims under a
variety of theories, including failure to comply with Utah’s
prelitigation procedure under the Health Care Malpractice Act
(the Act) as to Navarro. See Utah Code §§ 78B-3-401 to -426. Aguila
appeals the dismissal. We reverse in part and affirm in part.

BACKGROUND

¶2 In February 2019, Aguila underwent an abortion
procedure at Planned Parenthood. During Aguila’s visit to the
clinic, she saw an acquaintance, Navarro, who worked as a
medical assistant for Planned Parenthood. Not long after the
procedure, Aguila discovered that Navarro had revealed details
about Aguila’s procedure to mutual friends and acquaintances
and even shared information about it on social media. Those
Navarro informed were not involved in Aguila’s medical care. As
a result of Navarro’s disclosure, private information about the
abortion became known to friends, family, and other members of
the community.

¶3 Aguila filed a notice of intent to initiate a malpractice claim
against Planned Parenthood under the Act. The notice was served
on Planned Parenthood but not on Navarro. In January 2021,
Aguila received a certificate of compliance from the Utah Division
of Occupational and Professional Licensing, stating that she had
satisfied the prelitigation procedures outlined in the Act for her
claim against Planned Parenthood.

¶4 Aguila then filed a complaint against both Planned
Parenthood and Navarro. Aguila sued Navarro for negligence
and breach of fiduciary duty. Aguila alleged that Planned
Parenthood, as Navarro’s employer, was vicariously liable for
Navarro’s negligence and breach of fiduciary duty. Aguila also
made a direct claim against Planned Parenthood for negligent
hiring, training, and supervision of Navarro.

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Aguila v. Planned Parenthood

¶5 Planned Parenthood filed a motion to dismiss Aguila’s
complaint under rule 12(b)(6) of the Utah Rules of Civil Procedure
for failure to state a legal claim and rule 12(b)(1) for lack of
jurisdiction. Planned Parenthood’s argument was threefold. First,
it argued that Aguila could not sue Navarro because Aguila had
not served Navarro with a notice of intent to commence action
under the prelitigation requirements of the Act. Navarro filed a
motion joining that argument. This lack of service, Planned
Parenthood argued, resulted in a jurisdictional defect that
“renders dismissal of all [Aguila’s] claims—each of which
ultimately charges that she was harmed by the failure to render
appropriate health care—proper.”

¶6 Second, Planned Parenthood asserted that it could not be
held vicariously liable for Navarro’s actions because her actions
were not within the scope of her employment. Specifically,
Planned Parenthood argued that Navarro’s disclosure violated
the Health Insurance Portability and Accountability Act (HIPAA),
which could expose Planned Parenthood to “potential civil and
criminal sanctions.” See 42 U.S.C. § 1320d-6(a) (“A person who
knowingly and in violation of this part . . . discloses individually
identifiable health information to another person, shall be
punished as provided [herein].”). Planned Parenthood argued
that such an illegal act “could not be viewed as an act incident to
employment” nor serve Planned Parenthood’s interests. Planned
Parenthood thus argued that Navarro’s “dissemination of
protected health information” could not—as a matter of law—“be
the subject of a claim for vicarious liability.”

¶7 Third, Planned Parenthood asserted that to be vicariously
liable, it had to have “control of Navarro when she made the
purported disclosure.” But Planned Parenthood argued that
Aguila failed “to allege, even upon information and belief, that
Navarro was employed by [Planned Parenthood] at the time of
her purported disclosure.” Absent such an allegation, Planned
Parenthood argued that Aguila’s complaint failed to state “any

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Aguila v. Planned Parenthood

claim” against Planned Parenthood. In other words, Planned
Parenthood argued that without an employment relationship
pled, there was no basis to assert that Planned Parenthood had
any control over Navarro, the lack of which precluded Aguila’s
claims.

¶8 The district court agreed with Planned Parenthood’s
arguments and dismissed Aguila’s complaint on all claims and
against all parties.

¶9 First, it ruled that Aguila’s complaint against Navarro
failed for lack of jurisdiction because Navarro was never served
with a notice of intent to sue as required by the Act. See Utah Code
§ 78B-3-412(1)(a) (“A malpractice action against a health care
provider may not be initiated unless and until the plaintiff . . .
gives the prospective defendant . . . at least 90 days’ prior notice
of intent to commence an action . . . .”). Asserting that Aguila did
“not dispute” that Navarro was a “health care provider,” see id.
§ 78B-3-403(13), or that the claims Aguila raised in her complaint
constituted a “malpractice action against a healthcare provider,”
see id. § 78B-3-403(18), the court concluded that Aguila was
required to serve notice on Navarro and that her failure to do so
resulted in a lack of jurisdiction, see Utah R. Civ. P. 12(b)(1).

¶10 Second, the court determined that Navarro’s actions were
not within the scope of her employment. Specifically, the court
noted that because the purported disclosure could subject
Planned Parenthood to “civil and criminal penalties,” Navarro’s
actions could not—as a matter of law—fall within the scope of her
employment. Somewhat perplexingly, as we will point out, the
court also determined that Aguila’s complaint failed “to allege
that any purported act of Navarro was performed while she was
employed by” Planned Parenthood. Given these supposed
defects, the court concluded that Aguila’s complaint failed to state
a claim upon which relief could be granted.” See id. R. 12(b)(6).
Aguila appeals.

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Aguila v. Planned Parenthood

ISSUES AND STANDARDS OF REVIEW

¶11 Aguila first argues that the district court incorrectly
concluded that she failed to sufficiently plead that Navarro was
an employee of Planned Parenthood at the time of the disclosure.
Second, Aguila asserts that the court erred in concluding that
because Navarro’s disclosure of the protected information could
expose Planned Parenthood to criminal or civil liability, such
disclosure could not, as a matter of law, be within the course and
scope of employment. Both issues share the same standard of
review. “A rule 12(b)(6) motion to dismiss admits the facts alleged
in the complaint but challenges the plaintiff’s right to relief based
on those facts. The propriety of a 12(b)(6) dismissal is a question
of law. Accordingly, we give the trial court’s ruling no deference
and review it under a correctness standard.” Helf v. Chevron
U.S.A., Inc., 2009 UT 11, ¶ 14, 203 P.3d 962 (cleaned up).

¶12 Third, Aguila argues that the court incorrectly ruled that
“Navarro was a ‘health care provider’ and that her conduct
constituted a ‘malpractice claim’ under the Act.” Aguila asserts
that this incorrect interpretation of the Act resulted in the district
court concluding that Aguila’s claims against Navarro were
“subject to the prelitigation requirements” of the Act, which in
turn resulted in the court determining that it lacked jurisdiction
over Aguila’s individual claims against Navarro because Aguila
did not comply with the notice requirements of the Act. A
dismissal made under rule 12(b)(1) “presents a question of law
that we review for correctness.” Salt Lake County v. State, 2020 UT
27, ¶ 14, 466 P.3d 158 (cleaned up). And we review questions of
statutory interpretation for correctness. See Biesele v. Mattena, 2019
UT 30, ¶ 31, 449 P.3d 1.

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Aguila v. Planned Parenthood

ANALYSIS

I. Employment Issues

¶13 The Utah Rules of Civil Procedure require a plaintiff to
plead facts “showing that the party is entitled to relief.” See Utah
R. Civ. P. 8(a). Under this standard, a motion to dismiss “should
be granted only if, assuming the truth of the allegations in the
complaint and drawing all reasonable inferences therefrom in the
light most favorable to the plaintiff, it is clear that the plaintiff is
not entitled to relief.” Hudgens v. Prosper, Inc., 2010 UT 68, ¶ 14,
243 P.3d 1275 (cleaned up); see also Utah R. Civ P. 12(b)(6). Thus,
“we will affirm the dismissal of a complaint only where it clearly
appears that the plaintiff would not be entitled to relief under the
facts alleged or under any state of facts they could prove to
support their claim.” Hudgens, 2010 UT 68, ¶ 14 (cleaned up).
Stated in the reverse, “[t]o survive a motion to dismiss, the
complaint must allege facts sufficient to satisfy each element of a
claim, otherwise the plaintiff has failed to show that she is entitled
to relief.” Harvey v. Ute Indian Tribe of Uintah & Ouray Rsrv., 2017
UT 75, ¶ 60, 416 P.3d 401.

A. Employer–Employee Relationship

¶14 Aguila first asserts that the district court erred when it
concluded that she failed to plead any facts that established that
Navarro was an employee of Planned Parenthood at the time of
the alleged disclosure. We agree.

¶15 The district court—in a somewhat cursory fashion and
without providing any analysis of Aguila’s complaint—simply
stated, “[T]here is no dispute that [Aguila’s complaint] fails to
allege that any purported act of Navarro was performed while she
was employed” by Planned Parenthood. As Planned Parenthood
contends, “Because Aguila acknowledged her failure to allege,
even upon information and belief, that Navarro was employed by
[Planned Parenthood] at the time of her purported disclosures,

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Aguila v. Planned Parenthood

the district court properly dismissed” Aguila’s complaint. But
Aguila didn’t concede the point, and such a conclusion cannot be
sustained on the record here—the four corners of the complaint.

¶16 Aguila was indeed required to plead facts asserting that
Navarro was employed by Planned Parenthood at the time of the
disclosure. “Under the doctrine of respondeat superior, an
employer may be held vicariously liable for the acts of its
employee if the employee is acting in the course and scope of . . .
employment at the time of the act giving rise to the injury.” Sutton
v. Byer Excavating, Inc., 2012 UT App 28, ¶ 7, 271 P.3d 169
(emphasis added) (cleaned up); see also Glover ex rel. Dyson v. Boy
Scouts of Am., 923 P.2d 1383, 1385 (Utah 1996) (“[T]o establish [an
employer’s] liability for [an employee’s] tortious conduct, [a
plaintiff must] demonstrate that . . . an employer–employee
relationship existed . . . at the time the tort occurred.”).

¶17 Aguila adamantly asserts that she never acknowledged or
conceded that she failed to plead the existence of an employer–
employee relationship. She argues, on the contrary, that her
complaint referenced the relationship multiple times. Her
complaint contains numerous statements that Navarro was an
employee of Planned Parenthood, for example (with our
emphases):

• “The standard of care required Ms. Navarro to keep
Ms. Aguila’s medical information confidential
throughout her employment at Planned Parenthood
. . . .”
• “Defendant Planned Parenthood is vicariously
liable for Ms. Navarro’s actions as Ms. Navarro’s
employer.”
• “Defendant Planned Parenthood hired Ms. Navarro
as an employee of Planned Parenthood. . . . Ms.
Navarro failed to maintain confidentiality of Ms.
Aguila’s medical information.”

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Aguila v. Planned Parenthood

• “Planned Parenthood is vicariously liable for Ms.
Navarro’s actions as an employee of Planned
Parenthood.”
• “Defendant Planned Parenthood had a duty to
supervise Ms. Navarro as an employee of Planned
Parenthood.”
• “Defendant Planned Parenthood breached their
duty by negligently supervising Ms. Navarro as an
employee of Planned Parenthood.”
• “Planned Parenthood is vicariously liable for Ms.
Navarro’s action as Ms. Navarro’s employer.”
• “The standard of care requires Planned Parenthood
and its employees to not disclose personal medical
information to those outside a patient’s medical
providers.”
• “The failure of Planned Parenthood and its
employees to keep Ms. Aguila’s medical information
confidential breached the duty of care.”

And in the following allegation, Aguila pled that Navarro was
employed at the time of the disclosure: “Navarro was acting in the
course and scope of her employment or contractual relationship at
times discussed herein.” (Emphases added.)

¶18 Planned Parenthood describes these pleadings as “legal
conclusions [that] cannot stave off dismissal.” But Aguila’s
pleadings are not unadulterated legal conclusions void of pled
facts. As the final above-quoted allegation demonstrates, Aguila
pled that Navarro was employed by Planned Parenthood at the
“times discussed” in the complaint, at least implicitly including
the “time” when Navarro allegedly disclosed that Aguila had
undergone an abortion procedure. “On appeal from a motion to
dismiss, we must accept the factual allegations in the complaint
as true and view all reasonable inferences from them in the light

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Aguila v. Planned Parenthood

most favorable to the plaintiff.” Pang v. International Document
Services, 2015 UT 63, ¶ 3, 356 P.3d 1190 (cleaned up). Applying this
standard, we have little trouble concluding that Aguila pled facts
that, at least inferentially, led to the singular conclusion that
Navarro was employed by Planned Parenthood when the alleged
disclosure was made. Any other reading requires us to draw
inferences unfavorable to Aguila, something we are not permitted
to do at this procedural stage.

¶19 Thus, the district court erred in concluding that Aguila
failed to plead facts that an employer–employee relationship
existed between Planned Parenthood and Navarro at the time of
the disclosure.

B. Course and Scope of Employment

¶20 Aguila also takes exception to the district court’s ruling
that Navarro’s conduct could not, as a matter of law, be within the
course and scope of employment because her disclosure of
protected information potentially exposed Planned Parenthood to
civil and criminal liability. In the district court’s words,

To hold [Planned Parenthood] liable, each of the
claims [Aguila] asserts relies on an underlying
theory that Navarro’s purported disclosure was
performed in the course and scope of her
employment. Because Navarro’s purported
disclosure would violate HIPAA and subject
[Planned Parenthood] to civil and criminal
penalties, such would not be within the scope of
Navarro’s employment as a matter of law.

We agree with Aguila that the court erred in this ruling.

¶21 The notion that an employee’s illegal conduct can never
(i.e., as a matter of law) fall within the course and scope of
employment is simply not supported by our caselaw. Rather,

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Aguila v. Planned Parenthood

under Utah law, an employee’s acts fall within the course and
scope of employment if (1) the employee’s “conduct is of the
general kind” the employee “is employed to perform” and (2) the
employee’s “acts were motivated, at least in part, by the purpose
of serving the” employer’s “interest.” See M.J. v. Wisan, 2016 UT
13, ¶¶ 54–55, 371 P.3d 21 (cleaned up). Put another way, “acts
falling within the scope of employment are those acts which are
so closely connected with what the [employee] is employed to do,
and so fairly and reasonably incidental to it, that they may be
regarded as methods, even though quite improper ones, of carrying
out the objectives of employment.” Christensen v. Swenson, 874
P.2d 125, 127 (Utah 1994) (emphasis added) (cleaned up).
“Accordingly, an [employee] does not cease to act within the
course of . . . employment merely because [the employee]
engages” in an illegal activity. See Wardley Better Homes & Gardens
v. Cannon, 2002 UT 99, ¶ 26, 61 P.3d 1009 (cleaned up); see also Clark
v. Pangan, 2000 UT 37, ¶ 26, 998 P.2d 268 (concluding that “under
Utah law, it is possible for the intentional tort of battery to be
within the scope of a person’s employment”); Phillips v. JCM Dev.
Corp., 666 P.2d 876, 882–83 (Utah 1983) (concluding that an
employee’s tortious conduct involving real estate fraud was
within the scope of employment). Our supreme court has
observed that “an employer is vicariously liable for an employee’s
intentional tort if the employee’s purpose in performing the acts
was either wholly or only in part to further the employer’s
business, even if the employee was misguided in that respect.”
Hodges v. Gibson Products Co., 811 P.2d 151, 156 (Utah 1991).

¶22 And rather than being a question of law, the inquiry of
“[w]hether an employee is acting within the scope of . . .
employment is ordinarily a question of fact.” See Christensen, 874
P.2d at 127; see also Wisan, 2016 UT 13, ¶¶ 61–62 (stating that it is
the task of the “factfinder” to conclude whether an agent acted in
the scope of employment when committing an illegal act);
Newman v. White Water Whirlpool, 2008 UT 79, ¶ 10, 197 P.3d 654
(“Whether an employee is in the course and scope of his

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Aguila v. Planned Parenthood

employment . . . presents a question of fact for the fact-finder.”).
It is only “when the employee’s activity is so clearly within or
outside the scope of employment that reasonable minds cannot
differ [that] the court may decide the issue as a matter of law.”
Christensen, 874 P.2d at 127. 1

¶23 This is not a case where “reasonable minds cannot differ”
about the complained of conduct being outside the scope of
employment. See id. Indeed, cases from other jurisdictions have
concluded that the issue of whether the disclosure of protected
medical information—even in violation of HIPAA—could fall
within the scope of employment is a question of fact that is usually
reserved for the factfinder. See Walgreen Co. v. Hinchy, 21 N.E.3d
99, 104–105, 108 (Ind. Ct. App. 2014) (reasoning that whether a
pharmacist’s disclosure of private medical information was
within the scope of employment was “properly determined by the
jury rather than as a matter of law”); Parker v. Carilion Clinic, 819
S.E.2d 809, 814, 822 (Va. 2018) (holding that whether the
disclosure of private medical information in violation of HIPAA
was within the scope of employment is a “question . . . for the
jury” (cleaned up)); Bagent v. Blessing Care Corp., 862 N.E.2d 985,
988–89, 994, 996 (Ill. 2007) (affirming a summary judgment ruling
that an employee’s disclosure of the results of a pregnancy test to

1. Furthermore, the “reasonable minds cannot differ” standard is
typically employed in the context of a motion for summary
judgment. See, e.g., Penunuri v. Sundance Partners, Ltd., 2017 UT 54,
¶ 33, 423 P.3d 1150 (“A court must grant summary judgment if
reasonable minds cannot differ as to the inferences to be drawn
from the undisputed facts.” (cleaned up)). This is in contrast to a
motion to dismiss, where the challenge is about the right to
relief—as a matter of law—on facts that are presumed to be true.
See Oakwood Village LLC v. Albertsons, Inc., 2004 UT 101, ¶ 8, 104
P.3d 1226 (“A Rule 12(b)(6) motion to dismiss admits the facts
alleged in the complaint but challenges the plaintiff’s right to
relief based on those facts.”).

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a third party fell outside the scope of employment when hospital
policies expressly forbade such disclosure but noting that “an act
of an employee, although forbidden, may be within the scope of
employment”); Korntved v. Advanced Healthcare, SC, 2005 WI App
197, ¶¶ 1, 3, 12, 704 N.W.2d 597 (affirming a summary judgment
ruling that a lab technician’s disclosure of medical information to
a third party in violation of a health care provider’s policies fell
outside the scope of employment while noting that “whether an
employee acts within the scope of his or her employment is
generally a fact issue to be decided by a jury” and “questions of
intent can rarely be resolved by the court as a matter of law”
(cleaned up)).

¶24 Similarly, here the issue of the course and scope of
employment presents a question of fact and was not properly
decided in the context of a motion to dismiss. The complaint was
silent regarding Planned Parenthood’s policies concerning
maintaining patient confidentiality. Nor was there evidence about
whether Navarro had ever been apprised of Planned
Parenthood’s confidentiality policies. The court had before it only
Aguila’s complaint alleging that Navarro, an employee of
Planned Parenthood, had divulged protected information about
Aguila to third parties. The district court was required to assume
“the truth of the allegations in the complaint and draw[] all
reasonable inferences therefrom in the light most favorable” to
Aguila. See Rusk v. University of Utah Healthcare Risk Mgmt., 2016
UT App 243, ¶ 5, 391 P.3d 325, cert. denied, 390 P.3d 727 (Utah
2017). Keeping in mind the procedural posture of this case—
dismissal under rule 12(b)(6) for failure to state a claim upon
which relief could be granted—we conclude that the district court
erred in ruling that Navarro’s improper disclosure fell outside the
scope of employment merely because it potentially exposed
Planned Parenthood to civil and criminal liabilities under HIPAA
or otherwise. However, we note that this issue—even though it
involves a question of fact—might be resolved on summary
judgment if the undisputed facts show that Navarro’s conduct

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was so clearly within or outside the scope of her employment that
reasonable minds could not differ. See Bagent, 862 N.E.2d at 988–
89, 994, 996; Korntved, 2005 WI App 197, ¶¶ 1, 3, 12. But those
undisputed facts have not yet been established here. Thus, the
district court erred in dismissing Aguila’s complaint when it
determined that Navarro’s actions fell outside the course and
scope of her employment at Planned Parenthood in the absence of
undisputed facts to support that conclusion.

II. Notice Requirement Under the Act

¶25 Aguila argues that the district court incorrectly ruled that
Navarro was a health care provider and that Aguila’s claims
against Navarro constituted a malpractice claim, which
determinations supported the court’s conclusion that Navarro
was covered by the notice provisions of the Act. 2 We find no error
in the district court’s ruling.

A. “Health Care Provider”

¶26 Aguila contends that the district court erred in holding that
Navarro was a health care provider under the Act. More
specifically, Aguila argues that Planned Parenthood did not show
as a matter of law that Navarro was a health care provider. But
given her own characterization of Navarro’s job as a medical
assistant, there was very little for Planned Parenthood left to say
about whether Navarro was a health care provider under the Act.

2. Planned Parenthood argues that this issue was not preserved.
Because we resolve this issue on the merits in favor of Planned
Parenthood, we need not address the preservation arguments. See
State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 (“If the merits
of a claim can easily be resolved in favor of the party asserting that
the claim was not preserved, we readily may opt to do so without
addressing preservation.” (cleaned up)), cert. denied, 496 P.3d 718
(Utah 2021).

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¶27 In her complaint, Aguila alleges that Planned Parenthood
employed Navarro as a “medical assistant.” In her opposition to
Planned Parenthood’s motion to dismiss, Aguila clarified,

Navarro was employed as a medical assistant at
Planned Parenthood’s clinic. As a medical assistant,
discussing [a] patient’s medical procedures and
treatment is common practice as well as answering
phones, welcoming patients, scheduling
appointments, and corresponding with patients or
others.

Thus, according to Aguila, Navarro’s position as a medical
assistant at Planned Parenthood involved not only clerical tasks
handling patients’ private information but also direct interaction
with patients related to their medical procedures.

¶28 The Act defines “health care provider” in these terms:

“Health care provider” includes any person,
partnership, association, corporation, or other
facility or institution who causes to be rendered or
who renders health care or professional services as
a hospital, health care facility, physician, physician
assistant, registered nurse, licensed practical nurse,
nurse-midwife, licensed direct-entry midwife, . . . or
others rendering similar care and services relating
to or arising out of the health needs of persons or
groups of persons and officers, employees, or agents
of any of the above acting in the course and scope of
their employment.

Utah Code § 78B-3-403(13).

¶29 “In matters of statutory construction, the best evidence of
the true intent and purpose of the Legislature in enacting an Act
is the plain language of the Act.” Platts v. Parents Helping Parents,

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947 P.2d 658, 662 (Utah 1997) (cleaned up). And here, as our
supreme court has explained, “the statute . . . is not ambiguous.”
Id. The Act identifies three distinct categories of health care
providers. The first category includes those commonly regarded
as health care providers—hospitals, doctors, and nurses. See Utah
Code § 78B-3-403(13). The second category comprises “others
rendering similar care and services relating to or arising out of the
health needs of persons.” See id. The third category encompasses
employees or other agents of any entity or person in the first two
categories “acting in the course and scope of their employment.”
See id.

¶30 Even if the term “medical assistant” is not explicitly listed
among the individual professions identified as health care
providers in the first category, there can be no argument that
Navarro was an employee of Planned Parenthood who offered
“services relating to or arising out of the health needs” of Planned
Parenthood’s patients. She was a medical assistant who,
according to Aguila, was directly involved in discussing medical
procedures with patients, as well as handling various clerical
tasks involving patients’ personal information. In short, even
construing all the statements in the complaint as true and giving
every inference to Aguila, under the facts pled, her claims were
against Navarro in her capacity as a health care provider.
Accordingly, we see no error in the district court’s conclusion that
Navarro was a health care provider under the Act.

B. “Health Care”

¶31 Aguila contends that the district court erred in concluding
that Navarro’s disclosure of private medical records constituted
“health care” as that term is defined under the Act.

¶32 The Act defines a malpractice action as “any action against
a health care provider, whether in contract, tort, breach of
warranty, wrongful death, or otherwise, based upon alleged
personal injuries relating to or arising out of health care rendered

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or which should have been rendered by the health care provider.”
Utah Code § 78B-3-403(18) (emphasis added). “Health care,” as
statutorily defined, includes “act[s] or treatment performed or
furnished . . . by any health care provider for, to, or on behalf of a
patient during the patient’s medical care, treatment, or
confinement.” Id. § 78B-3-403(11).

¶33 Addressing the nature of a malpractice action, our
supreme court has explained that “once we determine that health
care was rendered . . . by a health care provider, we then look to
the relationship between that health care and the patient’s
injuries.” Scott v. Wingate Wilderness Therapy, LLC, 2021 UT 28,
¶ 67, 493 P.3d 592 (cleaned up). Those “injuries must relate to or
arise out of the health care rendered by the health care provider.”
Id. (cleaned up). In other words, “the injury must originate from
or be connected to something a health care provider did or should
have done in the course of providing health care to that patient.”
Id.

¶34 Here, this is exactly what Aguila alleges in her complaint.
She underwent an abortion procedure (i.e., “health care was
rendered”). See id. (cleaned up). Then, allegedly, a health care
provider (i.e., Navarro) caused her to suffer “damages including
mental distress, mental anguish, tarnish to her reputation,
anxiety, and depression” by divulging private medical
information about the procedure to third parties. In sum, Navarro
provided “health care” as a “health care provider,” and her
actions done in the course of providing that health care to Aguila
fell subject to the jurisdictional prelitigation requirements of the
Act.

¶35 As a point of clarification, this jurisdictional defect extends
only to Aguila’s individual claims against Navarro. It is unclear
whether Planned Parenthood argued below that the lack of notice
to Navarro resulted in a jurisdictional defect with respect to just
Planned Parenthood, just Navarro, or both. The district court

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appears to have decided not to extend the jurisdictional defect
present in Aguila’s claims against Navarro to Aguila’s claims
against Planned Parenthood. Instead, the court determined that
(1) there was a lack of jurisdiction with respect to the claims
against Navarro individually and (2) Planned Parenthood could
not be held vicariously liable because (a) Aguila had not pled an
employment relationship and (b) the disclosure was not within
the scope of employment. If the court had concluded that the
jurisdictional defect extended to both parties, there obviously
would have been no reason for it to address vicarious liability.

¶36 In sum, we see no error in the district court’s conclusion
that the claims Aguila raised against Navarro alleged malpractice
as defined by the Act.

CONCLUSION

¶37 We conclude that the district court erred in dismissing
Aguila’s complaint against Planned Parenthood. Specifically, the
district court erred in concluding that Aguila had not pled that an
employer–employee relationship existed between Planned
Parenthood and Navarro at the time of the alleged disclosure and
that Navarro’s disclosure was, as a matter of law, outside the
course and scope of employment. However, the district court
correctly dismissed Aguila’s malpractice claims against Navarro
on the grounds that it lacked jurisdiction owing to Aguila’s failure
to observe the prelitigation requirements of the Act with regard
to Navarro. We therefore affirm the district court’s dismissal of
Aguila’s claims against Navarro but reverse the dismissal of
Aguila’s claims—both direct and vicarious—against Planned
Parenthood. We remand this case for further proceedings
consistent with this opinion.

20210457-CA 17 2023 UT App 49