Daniels v. Gamma

2009 UT 66
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Ralph L. Daniels and Tracey 	No. 20080201
H. Daniels,
Plaintiffs and Appellant,
v.
Gamma West Brachytherapy, LLC;
John K. Hayes; Salt Lake Regional
Medical Center; and University 	F I L E D
Hospital,
Defendants and Appellees. 	October 2, 2009
---
Third District, Salt Lake Dep’t
The Honorable Robin W. Reese
No. 030926947
Attorneys: 	Kay Burningham, Park City, for plaintiff
George T. Naegle, Robert G. Wright, Brandon B. Hobbs,
Zachary E. Peterson, Salt Lake City, for defendants
---
DURHAM, Chief Justice:
INTRODUCTION
¶1 	The Utah Health Care Malpractice Act requires a patient
to bring a claim for malpractice no more than two years after the
patient discovers or should have discovered the injury. 	We have
interpreted this requirement to mean a patient must discover the
legal injury--that is, both the fact of injury and that it
resulted from negligence--before the statute of limitations
begins to run. 	In this case, the plaintiff and appellant, Ralph
L. Daniels, asks this court to determine whether under this
discovery rule the statute of limitations period for his claim
was triggered when he discovered that he might have been treated
negligently during the course of multiple procedures performed at
different times and by different providers, or when he discovered
that the specific treatment he received from John K. Hayes and
Gamma West Brachytherapy, LLC (collectively, the Defendants)
might have been negligent. 	We hold that the Health Care

1 Gamma West and Dr. Hayes alleged that Mr. Daniels’s cancer
was diagnosed as stage IV. 	This is an issue of fact that is not
relevant to any of our holdings today; therefore, we leave it to
the appropriate fact-finder to resolve.
2 High dose radiation is performed by inserting catheters
near the location of a cancerous tumor. 	Radiation is then
delivered directly to the cancer-affected area to remove any
remaining cancer cells.
No. 20080201 	2
Malpractice Act statute of limitations does not begin to run
until a patient discovers or should have discovered his legal
injury, including the causal event of such injury.
¶2 	Mr. Daniels also asks this court to consider several
other pretrial rulings made by the district court regarding the
admission of evidence and dismissal of claims. 	We affirm in part
and reverse in part and remand for proceedings consistent with
this opinion.
BACKGROUND
I. 	MR. DANIELS WAS DIAGNOSED WITH AND TREATED FOR COLON CANCER
¶3 	Mr. Daniels was diagnosed with stage II 1 colon cancer
in January 2001. 	To treat the cancer, his surgeon and a Gamma
West oncologist considered two options. 	The first option, being
the more standard treatment for colon cancer, was to administer
preoperative radiation to the locale of the cancer in order to
shrink the tumor and thereby improve the likelihood that the
entire tumor could be removed during surgery. 	The second option
was to remove as much of the tumor as possible and then apply
high-dose rate brachytherapy (high dose radiation) 2 to kill what
remained of the tumor. 	In Mr. Daniels’s case, it was determined
that surgery followed by high dose radiation therapy and then
external radiation beam therapy (external radiation) would
provide the best treatment.
¶4 	Before surgery and the insertion of the high dose
radiation catheters, Mr. Daniels signed Gamma West’s standard
informed consent form. 	This form, he argues, failed to fully
disclose numerous aspects of his radiation treatment. 	For
example, Mr. Daniels has alleged that he was not advised nor did
he consent to the experimental nature of using high dose
radiation therapy for his type of cancer. 	He also alleges that
he was not informed of the risk of radiation burns.

3 The parties dispute when Dr. Mintz told Daniels that he
suspected external radiation could have caused the open wound.
We make no finding, as this is an issue properly reserved for a
fact finder.
3 	No. 20080201
¶5 	As planned, Dr. Mintz removed the tumor and Dr. Hayes,
a Gamma West physician, inserted the high dose radiation
catheters on January 19, 2001. 	Following the surgery at Salt
Lake Regional Medical Center, Dr. Hayes administered high dose
radiation for four days, after which the catheters were removed.
About one month later, Mr. Daniels received external radiation
beam therapy at University of Utah Hospital. 	This treatment was
administered over several weeks. 	Mr. Daniels alleges that the
combined effect of the high dose radiation and the external
radiation therapies was a biological equivalent dose of 90,500
cGy. 	Radiation therapy typically does not exceed 5,040 cGy.
II. 	FOLLOWING RADIATION TREATMENT,
MR. DANIELS EXPERIENCED EXTREME COMPLICATIONS
¶6 	In the middle of his external radiation treatment, Mr.
Daniels began to experience dire complications. 	First, a forty-
year old inguinal hernia scar began to disintegrate. 	Mr. Daniels
consulted with both his primary care physician and a radiation
oncologist at the University of Utah. 	Neither informed him that
the high dose radiation could have caused the hernia scar’s
breakdown. 	Instead, the radiation therapist indicated that it
was likely due to an infection. 	Mr. Daniels also visited Dr.
Mintz, who allegedly told Mr. Daniels that external radiation
likely caused the problems with his hernia scar. 3 	Dr. Mintz then
performed surgery to repair the open wound. 	At the
recommendation of his external radiation oncologists, Mr. Daniels
returned to the University of Utah for additional external
radiation treatment at the end of April 2001.
¶7 	The next month Mr. Daniels’s recent midline and
colostomy incisions also began to break down. 	He again consulted
with Dr. Mintz, who admitted him to Salt Lake Regional Medical
Center. 	Within a few days, Mr. Daniels’s two incisions and
hernia scar coalesced into a sizable, infected wound. 	Mr.
Daniels was then transferred to the University of Utah Burn Unit,
where doctors performed debriding and skin grafts in an effort to
lessen Mr. Daniels’s complications. 	During the following years,
Mr. Daniels underwent numerous surgeries including: “ilieostomy,
ileoconduit, multiple debridements of necrotic tissue . . .,
surgery for blockages, nephrostomies for kidney malfunction
. . ., and dialysis.” 	He continues to suffer from the
complications allegedly arising out of the radiation treatment.

4 Mr. Daniels’s original complaint included his wife, Tracey
H. Daniels, as a plaintiff and a claim for loss of consortium.
This claim was dismissed and is not part of this appeal.
No. 20080201 	4
¶8 	In June 2001, Mr. Daniels’s wife met with Dr. Patton at
the University of Utah to discuss the cause of Mr. Daniels’s
severe health problems. 	Dr. Patton told her that neither the
high dose radiation nor the external radiation Mr. Daniels
received could have caused his abdominal breakdown.
¶9 	Mr. Daniels began to suspect that high dose radiation
therapy was indeed the cause of his complications during the
spring of 2002. 	At that time he was being treated in the
University Hospital’s Burn Unit. 	While there he overheard one of
his treating physicians explain to the resident physicians that
Mr. Daniels “had brachytherapy and had the Holy Jesus burned out
of him.”
III. 	MR. DANIELS SUED; HE LATER ADDED CLAIMS
TO HIS COMPLAINT BUT WAS NOT ALLOWED TO ADD
A CLAIM FOR FRAUDULENT CONCEALMENT
¶10 	After filing a notice of intent to sue, Mr. Daniels
sued Gamma West Brachytherapy, John K. Hayes, M.D., the
University Hospital, and Salt Lake Regional Medical Center in
December 2003 for medical negligence. 4 	Following discovery, the
University of Utah and Salt Lake Regional Medical Center moved
for summary judgment on all claims against them. 	In August 2006,
Mr. Daniels noted in a memorandum opposition that he might amend
his complaint to add a fraudulent concealment claim depending on
the outcome of discovery. 	The fact discovery deadline passed in
September 2006. 	Mr. Daniels moved to amend his complaint in
December 2006, alleging gross medical negligence, lack of
informed consent, and breach of fiduciary duty. 	The trial court
granted Mr. Daniels’s motion. 	In July 2007, Mr. Daniels again
moved to amend his complaint to add a fraudulent concealment
claim. 	The trial court denied his motion, finding the amendment
untimely and prejudicial.
IV. 	THE TRIAL COURT DENIED MR. DANIELS’S ATTEMPT
TO SUPPLEMENT ONE OF HIS EXPERTS’ TESTIMONY
FOLLOWING THE EXPERT’S SECOND DEPOSITION
¶11 	As part of discovery, Defendants deposed Mr. Daniels’s
expert radiation oncologist, Dr. Sidney Kadish, on May 26, 2006
and September 18, 2006. 	Dr. Kadish subsequently read another
expert’s deposition that was taken on October 20, 2006. 	After

5 	No. 20080201
reading the deposition and again reviewing Mr. Daniels’s patient
records, Dr. Kadish faxed changes to his deposition on October
23, 2006. 	In his previous depositions, Dr. Kadish stated that
the high dose radiation had damaged Mr. Daniels’s left ureter; on
October 23, Dr. Kadish wrote that the high dose radiation had
also damaged Mr. Daniels’s right ureter. 	Defendants filed a
motion to strike the changes to Dr. Kadish’s deposition. 	The
trial court granted the motion, finding that the changes were not
merely corrections to the deposition but new testimony.
V. 	THE TRIAL COURT DISMISSED MR. DANIELS’S CLAIM FOR
PUNITIVE DAMAGES, WHICH HE BASED ON HIS CLAIMS
FOR GROSS NEGLIGENCE, AND BREACH OF FIDUCIARY DUTY
¶12 	After discovery, Defendants filed dispositive motions
seeking to dismiss Mr. Daniels’s claims for gross negligence,
punitive damages, and breach of fiduciary duty. 	The court denied
Defendants’ motion to dismiss Mr. Daniels’s gross negligence
claim finding that the allegations put forth by Mr. Daniels, if
proven, would support a claim for gross medical negligence. 	The
trial court, however, granted partial summary judgment on Mr.
Daniels’s claim for punitive damages. 	In doing so, the trial
court noted that an award of punitive damages requires willful or
intentional conduct, while gross negligence does not.
¶13 	Additionally, the trial court granted summary judgment
on Mr. Daniels’s breach of fiduciary duty claim. 	The Defendants
argued that Utah law does not recognize any disclosure duty for
physicians, and moreover, the disclosure that Mr. Daniels argued
for 	is addressed by the informed consent statute. 	The trial
court agreed and granted the motion.
¶14 	Mr. Daniels’s case was bifurcated for trial. 	The court
first held a jury trial to determine whether the statute of
limitations barred Mr. Daniels’s claims.
VI. 	THE TRIAL COURT EXCLUDED EVIDENCE
OF WITNESSES’ INSURANCE COVERAGE
¶15 	Prior to trial, both parties filed numerous motions in
limine. 	Defendants’ Motion in Limine 3, which is now on appeal,
sought to exclude all evidence of or any reference to liability
insurance. 	Mr. Daniels opposed this motion arguing that
potential jurors should be questioned about their relation to the
insurance industry pursuant to rule 411 of the Utah Rules of
Evidence. 	Mr. Daniels also argued that under the same rule, his
counsel should be able to use proof of insurance to show the bias

No. 20080201 	6
of doctor witnesses, who were all members of the same insurance
exchange.
¶16 	At a pretrial hearing, the trial court granted
Defendant’s Motion in Limine 3, finding that Mr. Daniels had not
provided sufficient evidence of bias based on a shared insurance
provider. 	After the trial court made this order orally, Mr.
Daniels’s counsel asked the judge whether the potential jurors
could be questioned about their exposure to or relationship with
the insurance industry. 	The judge indicated that he would
address this issue at trial.
¶17 	On the first day of trial, the judge began voir dire by
submitting a questionnaire to the prospective jurors. 	During a
brief discussion with counsel, the judge indicated that there
were still a few questions on which the parties had not agreed,
but that he would resolve them. 	The judge then gave counsel a
few minutes to review the jurors’ answers to the questionnaire.
Subsequently, the court began questioning the venire panel.
During voir dire, the court inquired into each person’s
occupation, as well as their spouses’ occupation, and their
experiences with medical care. 	At the conclusion of the
questioning, the court asked counsel for 	additional or follow-up
questions. 	Mr. Daniels’s counsel asked the judge to inquire if
any of the members of the jury had ever missed the deadline for
filing a lawsuit. 	She did not ask the judge to question the
panel regarding relationships to the insurance industry.
VII. 	THE TRIAL COURT INSTRUCTED THE JURY THAT THE
STATUTE OF LIMITATIONS BEGAN WHEN MR. DANIELS
DISCOVERED HIS MEDICAL TREATMENT HAD BEEN NEGLIGENT
¶18 	The parties presented evidence and argument regarding
the statute of limitations during a three-day trial. 	In the
court’s and counsel’s discussions of which jury instructions to
use, Mr. Daniels’s counsel repeatedly requested both an
instruction defining negligence by its elements and an
instruction that specifically indicated the statute of
limitations did not begin to run until Mr. Daniels discovered the
cause of his alleged negligent injury. 	Specifically, she stated:
“I’d like to make a record. 	I think there are two types of
cause, and I think it’s extremely important that the jury be
instructed on both. 	One is cause in fact, the other is legal
cause.” 	The trial court initially declined both requests.
However, in the final version of the jury instructions, the trial
court included a brief definition of negligence, but did not
include its elements. 	Commenting on this instruction, Mr.
Daniels’s counsel indicated that she was pleased with the court’s

7 	No. 20080201
inclusion of a negligence definition but went on to object to the
special verdict form used by the trial court. 	She said, “[M]y
objections for the record are . . . I don’t think that the case
. . . that holds you don’t have to know the identity of the
tortfeasor can be extended to include you don’t have to know what
the cause in fact of the malpractice was, and that’s my
objection.” 	The trial court acknowledged that this was Mr.
Daniels’s “objection all along” but declined to alter the jury
instruction. 	Thus the special verdict form presented to the jury
asked them to determine whether Mr. Daniels knew or should have
known he had an injury by May 6, 2001 and if so, whether he knew
or should have known by the same day that the injury was
attributable to negligence.
¶19 	The jury returned a verdict for the Defendants, finding
that Mr. Daniels knew or reasonably should have known on or
before May 6, 2001 of an injury and that the injury was
attributable to negligence. 	Mr. Daniels appeals the verdict. 	We
have jurisdiction pursuant to Utah code section 78A-3-102(3)(j)
(2008).
ANALYSIS
¶20 	Mr. Daniels raises eight arguments for our
consideration: (1) the jury instruction regarding what the
plaintiff must discover to trigger the statute of limitations was
erroneous; (2) the trial court abused its discretion in admitting
evidence that Mr. Daniels originally sued the University Hospital
and Salt Lake Regional Medical Center; (3) the trial court abused
its discretion by declining to question potential jurors about
their relationships to the insurance industry; (4) the trial
court abused its discretion in excluding evidence that defense
witnesses and the Defendants shared the same insurance provider;
(5) the trial court erred in granting summary judgment on the
issue of punitive damages; (6) the trial court erred in granting
summary judgment on Daniels’s claim for breach of fiduciary duty;
(7) the trial court improperly excluded the supplementation of
Mr. Daniels’s expert witness’s deposition; and (8) the trial
court abused its discretion in denying Mr. Daniels’s leave to
amend his complaint to add a fraudulent concealment claim. 	We
address each of these arguments in turn.

No. 20080201 	8
I. 	UNDER THE DISCOVERY RULE OF THE UTAH HEALTH CARE
MALPRACTICE ACT, AN INJURY IS DISCOVERED WHEN
THE PATIENT BECOMES AWARE OF THE POSSIBLE
CAUSAL EVENT OF HIS MEDICAL INJURY
¶21 	Mr. Daniels argues that the trial court’s jury
instruction was erroneous because it failed to instruct the jury
that the statute of limitations did not begin to run on his
claims until he discovered that the high dose radiation therapy
might be the cause of his injuries. 	Instead, the trial court’s
jury instructions and special verdict form indicated that a
plaintiff must only discover an injury and that the injury was
the result of negligence. 	The trial court specifically declined
to include an instruction that the plaintiff must discover which
event caused the alleged negligent injury.
¶22 	Challenges to jury instructions require interpretations
of law; therefore, we review them for correctness. 	Child v.
Gonda, 972 P.2d 425, 429 (Utah 1998). 	As discussed below, we
conclude first that Mr. Daniels properly preserved his challenge
to the jury instructions by timely objecting to the jury
instructions and the special verdict form. 	Second, we hold that
the trial court’s jury instruction misapplied the Utah Health
Care Malpractice Act and our case law interpreting its discovery
requirements.
A. 	Mr. Daniels Adequately Preserved His Challenge
to the Statute of Limitations Jury Instruction
¶23 	“Generally, ‘in order to preserve an issue for appeal
the issue must be presented to the trial court in such a way that
the trial court has an opportunity to rule on that issue.’”
Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366 (quoting
Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48
P.3d 968). 	In determining whether an issue was properly
presented to the trial court, we consider whether a party timely
and specifically raised the issue and presented supporting
authority. 	Id. 	In this case, Mr. Daniels’s counsel adequately
preserved her objection to the court’s jury instruction by
continually requesting a jury instruction that reflected a
different interpretation of the statute of limitations
requirement, and by specifically objecting to the jury
instructions and special verdict form used by the trial court.
¶24 	Defendants argue that Mr. Daniels’s counsel waived her
objection and invited error by agreeing to the court’s jury
instruction on negligence. 	We disagree. 	After discussing the
jury instruction that defined negligence, Mr. Daniels’s counsel

9 	No. 20080201
went on to object to the special verdict form used by the trial
court. 	She said, “[M]y objections for the record are . . . I
don’t think the case . . . that holds you don’t have to know the
identity of the tortfeasor can be extended to include you don’t
have to know what the cause in fact of the malpractice was, and
that’s my objection.” 	This objection and those that preceded it
were timely. 	They were made while the trial court was
contemplating the jury instructions the court would use during
this case. 	Moreover, Mr. Daniels’s counsel specifically objected
to both the jury instructions and the special verdict form, and
she specifically identified her concerns and how she believed the
law should be reflected in the jury instructions. 	Finally, Mr.
Daniels’s counsel provided the court with authority, existing
case law and the model jury instruction to support her position.
Thus, the objections of counsel properly preserved Mr. Daniels’s
challenge to the legal issue.
B. 	The Trial Court Erred by Failing to Instruct the Jury That
the Statute of Limitations Does Not Begin to Run Until the
Patient Discovers the Causal Event of His Medical Injury
¶25 	The Utah Health Care Malpractice Act requires that
“[a] malpractice action against a health care provider . . . be
commenced within two years after the plaintiff or patient
discovers, or through the use of reasonable diligence should have
discovered the injury, whichever first occurs . . . .” 	Utah Code
Ann. § 78B-3-404(1) (2008) (emphasis added). 	We have repeatedly
interpreted the phrase “discovered the injury” as meaning
discovering the “injury and the negligence which resulted in the
injury,” also referred to as “legal injury.” 	Foil v. Ballinger,
601 P.2d 144, 148 (Utah 1979); see also Brower v. Brown, 744 P.2d
1337, 1338-39 (Utah 1987)(“This Court has defined discovery of
the injury as knowledge of a legal injury; that is, the plaintiff
must know of the injury and of the negligence which caused the
injury.”). 	The application of this test to a factual scenario
where multiple medical events may have caused the plaintiff’s
alleged injury is an issue of first impression for this court.
We hold that discovering a legal injury includes discovering the
causal event of the injury. 	Further, we emphasize that the
determination of when a plaintiff is aware of the causal fact
turns on a jury’s determination of when a plaintiff acting with
reasonable diligence discovered or should have discovered which
event might have caused his injury. 	We address these two points
in turn.
¶26 	Discovering a legal injury requires a discovery of the
causal event of the injury. 	This interpretation is consistent
with both the plain language of the Health Care Malpractice Act

No. 20080201 	10
and underlying policy previously considered in our health care
statute of limitations cases.
¶27 	In previous cases we have repeatedly emphasized that a
plaintiff has not discovered his injury until he is aware that
negligence may have caused the injury. 	Deschamps v. Pulley, 784
P.2d 471, 473 (Utah Ct. App. 1989). 	Hove v. McMaster, 621 P.2d
694, 696 (Utah 1980); In Foil, we specifically held that
discovery “means discovery of [the] injury and the negligence
which resulted in the injury.” 	601 P.2d at 148 (emphasis added).
As rephrased in Brower, this requires that the plaintiff “know of
the injury and of the negligence which caused the injury.” 	744
P.2d at 1338-39 (emphasis added). 	Nothing in the statute’s
language or our interpretation of the statute limits the
discovery of an injury to merely suspecting negligence without
identifying its source. 	In fact, our precedent directs us to the
opposite conclusion. 	That is, a patient cannot know “the
negligence which resulted in injury” without knowing what medical
treatment or procedure caused his injury. 	Defendants disagree
with this interpretation and rely on a decision of the court of
appeals, McDougal v. Weed, 945 P.2d 175 (Utah Ct. App. 1997), for
the proposition that a plaintiff must only suspect medical
negligence before the statute of limitations is triggered.
Defendants’ argument construes the McDougal holding too broadly.
¶28 	Under McDougal, a plaintiff need not know the identity
of the responsible tortfeasor, but must know which medical event
allegedly caused his injury. 	In McDougal, the patient sued one
doctor, dismissed that action, and then sued a second doctor in
relation to a claim arising from the same medical event--
emergency room treatment for a separated shoulder. 	Id. at 176.
The patient argued that the statute of limitations was not
triggered until he discovered the actual identity of his treating
physician. 	Id. at 177. 	The court of appeals disagreed. 	Id. at
177-78. 	Relying on Foil and case law from other states, the
court of appeals held “that the medical malpractice statute of
limitations is tied only to the discovery of the plaintiff’s
legal injury and not to the discovery of the tortfeasor’s
identity.” 	Id. at 178.
¶29 	In Mr. Daniels’s case, however, it is not the identity
of a specific tortfeasor that is at issue, but rather the
identification of the medical event that caused the injury. 	The
discovery of legal injury requires the discovery of the causal
event, which differs from the discovery of a responsible
tortfeasor from among several actors connected to a single
medical event. 	In the single-event/multiple-actor circumstance,
a patient who is injured and suspects negligence may investigate

11 	No. 20080201
this suspicion with adequate time to bring a claim based on the
facts of that medical treatment. 	Unknown defendants may be added
as the case progresses. 	In such cases, the patient has
discovered his legal injury, including the medical injury and its
source. 	In contrast, when a patient has received multiple
medical treatments or undergone numerous medical procedures, and
subsequently suffers unforseen complications or reactions, he may
suspect negligence. 	This patient, however, has not discovered
his legal injury because, while he is aware that he is injured,
and even if he is aware that negligence may be the source, he has
not sufficiently tied it to its source in a medical procedure.
Therefore, we hold, based on the language of the Health Care
Malpractice Act and our case law interpreting it, while a patient
may not be required to discover the specific individual
responsible for his injury, he must discover the causal event
before the statute of limitations begins to run.
¶30 	Additionally, the policy underlying our previous
interpretations of the Health Care Malpractice Act also requires
that the statute of limitations not be triggered until the
patient discovers which medical event allegedly caused his
injury. 	In Foil we explained that the statute of limitations
should be interpreted in a way that discourages unfounded law
suits. 	601 P.2d at 148. 	Thus, “when injuries are suffered that
have been caused by an unknown act of negligence . . . the law
ought not to be construed to destroy a right of action before a
person even becomes aware of the existence of that right.” 	Id.
at 147. 	Otherwise, a patient is forced to sue his health care
professionals as soon as he is injured and before he is aware of
any fault in his medical care in order to have a right of action.
As we explained when originally adopting this discovery rule,
“[i]t seems somewhat incongruous that an injured person must
commence a malpractice action prior to the time he knew, or
reasonably should have known, of his injury and right of action.”
Christiansen v. Rees, 436 P.2d 435, 436 (Utah 1968). 	With these
concerns in mind, it follows that a patient must not only suspect
negligence in a medical treatment, but must also suspect which
treatment in particular implicates negligent care to avoid
pursuing unfounded litigation.
¶31 	Tying the statute of limitations’ trigger to the
discovery of the cause-in-fact of a patient’s injury does not
leave health care professionals endlessly susceptible to revived
claims. 	Instead, the discovery rule is tempered by a requirement
that a patient act with reasonable diligence in investigating a
suspected injury. 	Thus, the statute of limitations begins when
exercising such diligence a patient should have discovered his
injury and its possible negligent cause. 	Whether and when a

No. 20080201 	12
patient should have discovered an injury and its cause is a fact-
intensive question that requires a jury to determine, given the
information available, whether the actions taken in response to
an injury and the efforts extended to discover its cause were
adequate. 	The jury cannot undertake such a fact-specific inquiry
without being informed as to which event it is evaluating for
whether the plaintiff was aware or should have been aware of what
was the negligent cause of his injury. 	Therefore, we conclude
that the trial court’s jury instruction was in error because it
failed to explain that the statute of limitations did not begin
to run until Mr. Daniels discovered that the Defendants’
treatment and care might have been negligent and thus might have
caused his injuries.
II. 	THE DISTRICT COURT ERRED BY ADMITTING MR. DANIELS’S
SUPERSEDING COMPLAINT BECAUSE IT WAS IRRELEVANT
TO SHOW WHEN MR. DANIELS SUSPECTED HIS RADIATION
TREATMENT WAS THE CAUSE OF HIS INJURIES
¶32 	The trial court abused its discretion by admitting Mr.
Daniels’s superseded complaint into evidence because it based its
decision on an erroneous interpretation of the Health Care
Malpractice Act statute of limitations. 	Under the correct
interpretation, the Defendants’ purpose for admitting the
pleading was irrelevant. “[W]e grant a trial court broad
discretion to admit or exclude evidence and will disturb its
ruling only for abuse of discretion.” 	Daines v. Vincent, 2008 UT
51, ¶ 21, 190 P.3d 1269. 	“An abuse of discretion may be
demonstrated by showing that the district court relied on ‘an
erroneous conclusion of law’ or that there was ‘no evidentiary
basis for the trial court’s ruling.’” 	Kilpatrick v. Bullough
Abatement, Inc., 2008 UT 82, ¶ 23, 199 P.3d 957 (quoting Morton
v. Cont’l Baking Co., 938 P.2d 271, 274 (Utah 1997)).
¶33 	The admission of the superseded complaint was an abuse
of discretion because under a proper interpretation of the
statute of limitations, the purpose proposed for admitting the
pleading would have been irrelevant. 	In this case, the trial
court determined that the superseded complaint was relevant to
the Defendants’ argument that Mr. Daniels was aware of negligence
in his medical treatment before he claimed he suspected the
Defendants were negligent because he asserted claims against Salt
Lake Regional Medical Center and University Hospital. 	Under the
trial court’s interpretation of the Health Care Malpractice Act
statute of limitations’ discovery rule, this determination was
correct. However, as we explained in Part I, the trial court’s
legal interpretation was incorrect. 	Under the proper
interpretation, admitting the superseded complaint to show that

13 	No. 20080201
Mr. Daniels had sued other health care providers was irrelevant
to show when Mr. Daniels suspected the high dose radiation
administered by Defendants to be the cause of his injury.
Further, such evidence unfairly prejudiced Mr. Daniels because it
confused the jury and was a waste of time. 	Therefore, in
subsequent proceedings the superseded complaint cannot be
admitted to show Mr. Daniels suspected other health care
providers and sued them for negligence.
III. 	MR. DANIELS DID NOT PRESERVE
HIS CHALLENGE TO VOIR DIRE
¶34 	Despite his opposition to the Defendants’ motion in
limine, Mr. Daniels’s counsel failed to preserve Mr. Daniels’s
objection to the exclusion of a question regarding potential
jurors’ relationships to the insurance industry by failing to
make a timely, specific objection that provided the court with an
opportunity to rule on the issue. 	More importantly, Mr. Daniels
did not adequately brief his preservation of this issue.
¶35 	Under the Utah Rules of Appellate Procedure, a party
must cite to where in the record an issue was adequately
preserved. Utah R. App. P. 24(a)(5)(A). 	In this case, Mr.
Daniels did not explain in his brief or reply brief when counsel
preserved a challenge to voir dire. 	Thus, we are left to guess
what Mr. Daniels’s counsel’s theory for preservation may be.
Reviewing the record cites included in Mr. Daniels’s statement of
facts, we conclude that this issue was in fact not preserved for
appellate review but instead Mr. Daniels stipulated to voir dire
as conducted by the trial court judge.
IV. 	EVIDENCE OF INSURANCE MAY BE ADMITTED WHEN THE PLAINTIFF
PRODUCES EVIDENCE OF A SUBSTANTIAL CONNECTION BETWEEN
THE WITNESS AND THE INSURANCE PROVIDER
¶36 	The trial court did not abuse its discretion in
excluding evidence of insurance that it found to be more
prejudicial than probative. 	We review a trial court’s exclusion
of evidence for an abuse of discretion. 	Daines v. Vincent, 2008
UT 51, ¶ 21, 190 P.3d 1269.
¶37 	The evidence presented by Mr. Daniels was insufficient
to show the possibility of bias based on insurance coverage.
Utah Rule of Evidence 411 prohibits evidence of liability
insurance for to show that a person acted negligently but allows
evidence of liability coverage to show a witness is biased or
prejudiced. 	Mr. Daniels argues that two of the doctor witnesses
in this case changed their testimony between their depositions

No. 20080201 	14
and trial and that this may be the result of bias based on the
fact that they are both insured by the Utah Medical Insurance
Association, a physician-owned organization. 	In many
jurisdictions, evidence of a witness’s insurance coverage is only
admitted to show bias if there is evidence of a substantial
connection between the witness and the insurance company. 	See,
e.g., Yoho v. Thompson, 548 S.E.2d 584, 586 (S.C. 2001) (“A
majority of jurisdictions addressing this issue apply a
‘substantial connection’ analysis to determine whether an
expert’s connection to a defendant’s insurer is sufficiently
probative to outweigh the prejudice to the defendant resulting
from the jury’s knowledge that the defendant carries liability
insurance.”) 	Under that test, a connection is substantial when
the witness is employed or has some control in the insurance
company. 	See Evans v. Colo. Permanente Med. Group, 902 P.2d 867,
874 (Colo. Ct. App. 1995), rev’d on other grounds, 926 P.2d 1218
(Colo. 1996) (holding that evidence of witness’s position as a
board member of insurance company was relevant evidence of bias);
Yoho, 548 S.E.2d at 586 (allowing evidence of insurance when
witness was employed as a consultant for insurance company). 	In
instances when there is less of a connection, such as a witness
simply holding an insurance policy, courts exclude the evidence
as irrelevant or prejudicial. 	Warren v. Jackson, 479 S.E.2d 278,
281-82 (N.C. Ct. App. 1997). 	In Warren, the plaintiff sought to
admit evidence that expert witnesses shared the same malpractice
carrier as the defendant. 	Id. at 279. 	In addressing the issue,
the North Carolina court noted that in cases that permitted
evidence of insurance to be admitted at trial, the witness had a
direct interest in the outcome of the case. 	Id. at 281. 	For
example, the witness was an owner or employee of the insurance
provider. 	Id. 	Acknowledging that policyholders of a mutual
insurance company had more of a financial stake than
policyholders of other types of insurance providers, the court
still held that policy holding status alone did not create a
substantial connection. 	Id. 	Thus, the court upheld the
exclusion of evidence of liability insurance. 	Id. at 281-82. 	We
approve of this approach and adopt it in this case.
¶38 	Applied here, we conclude that there is no evidence in
the record of a substantial connection between the doctor
witnesses and the Utah Medical Insurance Association; therefore,
the trial court did not abuse its discretion in finding the
evidence irrelevant and prejudicial. 	Like the witnesses in
Warren, the doctor witnesses in this case held insurance policies
with the same carrier as the Defendants. 	However, unlike the
witnesses in Yoho and Evans, the witnesses did not have an
employment or control relationship with the provider. 	Therefore,
there was not a substantial connection between the witnesses and

15 	No. 20080201
the insurance provider. 	Accordingly, admitting any evidence of
liability insurance coverage would be irrelevant and result in
prejudice because it would necessarily disclose that the
defendant maintained a liability insurance policy.
V. 	A CLAIM FOR GROSS NEGLIGENCE MAY SUPPORT
A PRAYER FOR PUNITIVE DAMAGES WHEN THE DEFENDANTS’
ACTS WERE BOTH KNOWING AND RECKLESS
¶39 	The trial court erred in granting summary judgment on
Mr. Daniels’s punitive damage claims based on gross negligence
when it relied on the proposition that “[i]n contrast to a claim
for punitive damages, a claim for gross medical negligence does
not require allegations of willful or intentional conduct.” 	This
statement reflects a misunderstanding of the punitive damages
statute. 	To qualify for punitive damages under the statute, an
action need not be intentional but may alternatively be knowing
and reckless. 	Utah Code Ann. § 78B-8-201(1)(a) (2008).
Therefore, in certain instances, a claim for gross negligence may
satisfy the statute’s requirement.
¶40 	“We review the district court’s decision to grant
summary judgment ‘for correctness, granting no deference to the
[district] court.’” 	Swan Creek Vill. Homeowners Ass’n v. Warne,
2006 UT 22, ¶ 16, 134 P.3d 1122 (alteration in original) (quoting
Pugh v. Draper City, 2005 UT 12, ¶ 7, 114 P.3d 546). 	Similarly,
we review a trial court’s statutory interpretation for
correctness. 	Ellis v. Estate of Ellis, 2007 UT 77, ¶ 6, 169 P.3d
441.
¶41 	Whether a claim may be the basis for punitive damages
is governed by Utah Code section 78B-8-201, which allows punitive
damages to “be awarded only if . . . it is established by clear
and convincing evidence that the acts or omissions of the
tortfeasor are the result of willful and malicious or
intentionally fraudulent conduct, or conduct that manifests a
knowing and reckless indifference toward, and a disregard of, the
rights of others.” 	Utah Code Ann. § 78B-8-201(1)(a) (2008). 	As
stated in the plain language of the statute, two types of conduct
justify an award of punitive damages: (1) “willful and malicious
or intentionally fraudulent conduct” or (2) “a knowing and
reckless indifference toward, and a disregard of, the rights of
others.” 	Id. 	Gross negligence, by definition, is not willful or
intentional; thus, for Mr. Daniels to succeed under the statute,
his gross negligence claim must fit into the “knowing and
reckless indifference” requirement. 	See W. Page Keeton et al.,
Prosser and Keeton on Torts 161 (5th ed. 1984) (discussing how

No. 20080201 	16
negligence, by definition, consists of conduct where the
tortfeasor does not intend to cause harm).
¶42 	To prove that a tortfeasor’s actions were knowing and
reckless, a party must prove that the tortfeasor knew of a
substantial risk and proceeded to act or failed to act while
consciously ignoring that risk. 	Recklessness includes conduct
where “the actor kn[ew], or ha[d] reason to know, . . . of facts
which create a high degree of risk of physical harm to another,
and deliberately proceeds to act, or to fail to act, in conscious
disregard of, or indifference to, that risk.” 	Restatement
(Second) of Torts § 500 cmt. a (1965). 	The Utah Legislature
added the word “knowingly” to the punitive damages statute to
require “the plaintiff [to] prove actual knowledge by the
defendant of the danger created by the defendant’s conduct.”
Utah Senate Journal, 48th Leg., Gen. Sess. 705 (Feb. 21, 1989)
(statement of Sen. Barlow).
¶43 	On its face, a standard gross negligence claim
partially satisfies the “knowing and reckless indifference”
standard because in Utah gross negligence is equated with
reckless disregard. 	State Tax Comm’n v. Stevenson, 2006 UT 84,
¶ 25, 150 P.3d 521 (“Authorities have equated reckless disregard
with gross negligence.”). 	This court has consistently defined
gross negligence as “‘the failure to observe even slight care; it
is carelessness or recklessness to a degree that shows utter
indifference to the consequences that may result.’” 	Atkin Wright
& Miles v. Mountain State Tel. & Tel. Co., 709 P.2d 330, 335
(Utah 1985)(quoting Robinson Ins. & Real Estate, Inc. v. Sw. Bell
Tel. Co., 366 F. Supp. 307, 311 (W.D. Ark. 1973)). 	Recklessness
is subsumed in this court’s definition of gross negligence.
Thus, a party seeking punitive damages based on a proven claim of
gross negligence, has already satisfied the reckless requirement
of the punitive damages statute.
¶44 	While all gross negligence claimants can automatically
claim recklessness, only some may be able to show that a
tortfeasor actually knew of the danger of his or her action or
inaction, as opposed to should have known of the danger. 	What
constitutes actual knowledge will be case specific. 	Diversified
Holdings, L.C. v. Turner, 2002 UT 129, ¶ 29, 63 P.3d 686 (“While
simple negligence will not support punitive damages, negligence
manifesting a knowing and reckless indifference toward the rights
of others will. 	A determination must be made on the facts of
each case whether the negligence complained of is of the sort
that will support punitive damages.”). 	In this case, Mr. Daniels
must prove that Dr. Hayes knew of the danger presented by

5 Mr. Daniels argued that the experimental nature of using
high dose radiation to treat colon cancer together with the
Defendants’ failure to apprise Mr. Daniels about the risks of
high dose radiation constitutes gross negligence. 	To the extent
the harm caused by a failure to disclose relates to Mr. Daniels’s
agreement to undergo the treatment, this allegation must be
addressed under the informed consent statute. 	See Part VI,
infra.
17 	No. 20080201
administering high dose radiation in a nonstandard treatment for
colon cancer and was indifferent to the outcome. 5
¶45 	Because the trial court’s order did not adequately
address whether Mr. Daniels had adequately alleged a gross
negligence claim that involved knowing conduct, we reverse and
remand to the trial court to determine whether the gross
negligence alleged by Mr. Daniels was both knowing and reckless
towards Mr. Daniels’s rights.
VI. 	HEALTH CARE PROFESSIONALS OWE THEIR PATIENTS
FIDUCIARY DUTIES, BUT THOSE DUTIES MAY
BE ABROGATED BY STATUTE
¶46 	The trial court properly granted the Defendants’ motion
to dismiss Mr. Daniels’s breach of fiduciary duty claim based on
nondisclosure because 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. 	The granting of a
motion to dismiss “presents a question of law that we review for
correctness. 	Moreover, the district court’s interpretation of
. . . statutes[] 	and the common law are questions of law that we
review for correctness.” 	Ellis v. Estate of Ellis, 2007 UT 77,
¶ 6, 169 P.3d 441.
¶47 	Mr. Daniels argues that the trial court should not have
dismissed his claim for breach of fiduciary duty because the
common law duty of disclosure is broader than the duty imposed by
the informed consent statute. 	In contrast, the Defendants urge
this court to avoid imposing fiduciary duties on doctors, or at
minimum, to not impose a duty of disclosure. 	We hold that while
doctors owe patients fiduciary duties, the specific duties urged
on us here are unavailable due to the informed consent statute.
¶48 	Doctors stand in a fiduciary relationship with their
patients. 	See Sorensen v. Barbuto, 2008 UT 8, ¶ 15, 177 P.3d 614
(“Courts have long characterized the duty physicians have to
their patients as fiduciary.”). 	This is because “[t]he physician
has knowledge and skills for which the patient has significant

6 We do not address whether the informed consent statute
requires health care providers to inform their patients about the
experimental nature of a treatment. 	The parties referenced but
did not argue this issue on appeal.
No. 20080201 	18
need. 	The application of such knowledge and skills requires
substantial exercise of discretion. . . . 	[And,] the physician
voluntarily and expressly undertakes to act primarily for the
benefit of the patient.” 	E. Haavi Morreim, Medical Research
Litigation and Malpractice Tort Doctrines: Courts on a Learning
Curve, 4 Hous. J. Health L. & Pol’y 1, 42–43 (2003). 	The
asymmetrical relationship between doctors and patients imposes on
doctors the responsibility to observe common law requirements of
all fiduciary duties unless those duties are abrogated by
statute.
¶49 	Common law claims are retained unless explicitly or
implicitly abrogated by statute. 	Utah Code Ann. § 68-3-1 (2008)
(“The common law of England so far as it was not repugnant to, or
in conflict with . . . the constitution or laws of this state
. . . is hereby adopted, and shall be the rule of decision in all
courts of this state.”). 	A statute preempts a common law claim
by specifically adopting a limitation or prohibition on a claim
or by comprehensively addressing a particular area of law such
that it displaces the common law. 	Bishop v. GenTec Inc., 2002 UT
36, ¶ 9, 48 P.3d 218.
¶50 	In this case, Utah’s informed consent statute partially
abrogates the fiduciary duty of disclosure. 6 	The statute
explicitly restricts a party’s ability to obtain damages to
claims satisfying the elements prescribed in the statute. 	Utah
Code Ann. § 78B-3-406(1) (2008). 	In doing so, the statute
abrogates all other claims for failure to disclose the risks
presented by a health provider’s treatment of a patient.
Additionally, the statute reduces the information a health
provider must disclose. 	For instance, under the statute, health
care providers are not required to fully disclose all the risks
of a health care treatment, only those risks that are
“substantial and significant” and that could cause “the patient
serious harm.” 	Id. § 78B-3-406(1)(d). 	In contrast, the common
law duty to disclose requires a physician to provide a patient
with any information material to the decision process of an
ordinary individual. 	Nixdorf v. Hicken, 612 P.2d 348, 354 (Utah
1980). 	Comparing the two standards, we read the informed consent
statute to impose a narrower disclosure requirement, especially
in light of the statute’s numerous defenses to an informed
consent claim. 	For example, under the statute a health care
provider does not have a duty to disclose information that in his

19 	No. 20080201
reasonable discretion he determined would have an adverse affect
on the patient. 	See Utah Code Ann. § 78B-3-406(d). 	Therefore
the statute explicitly limits the claims that a patient may
employ to obtain damages for failure to disclose and also
conflicts with existing causes of action by imposing a narrower
duty on health care providers to disclose risks posed by
treatments. 	In such circumstances, the statute prevails.
¶51 	Of course, if a disclosure does not fall within the
confines of the informed consent statute, then its fiduciary
nature is retained. 	For example, the informed consent statute
does not remove a doctor’s common law fiduciary duty “to disclose
to his patient any material information concerning the patient’s
physical condition.” 	Nixdorf v. Hicken, 612 P.2d 348, 354 (Utah
1980). 	The Nixdorf disclosure requirement “differs from that
found in the informed consent context.” 	Id. at 354 n.20.
Informed consent applies only to pretreatment information about
the risks of a procedure or treatment; the fiduciary duty to
disclose requires health care providers to apprise patients of
material physical conditions throughout the course of their
health care. 	Therefore, patients have a cause of action for
breach of the fiduciary duty of disclosure except where a
disclosure is explicitly governed by the informed consent
statute.
¶52 	Mr. Daniels also claims Dr. Hayes breached the
fiduciary duties of good faith and loyalty. 	However, we do not
address these issues because they were inadequately briefed. 	Mr.
Daniels’s brief has “not provided any serious analysis of the
issue,” Loveland v. Orem City Corp., 746 P.2d 763, 770 (Utah
1987), and we will not assume a party’s burden of argument and
research. 	Smith v. Four Corners Mental Health Ctr., Inc., 2003
UT 23, ¶ 46, 70 P.3d 904.
¶53 	In sum, we hold that health care providers are bound by
common law fiduciary duties, including a duty to disclose, except
where a statute abrogates those duties. 	In this case, Mr.
Daniels’s complaint that Dr. Hayes failed to fully inform him of
the risks of high dose radiation falls squarely within the
confines of the informed consent statute; therefore, the
fiduciary duty of disclosure does not apply. 	The trial court
properly dismissed Mr. Daniels’s claim for breach of fiduciary
duty for failure to disclose the risks of high dose radiation.

No. 20080201 	20
VII. 	THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN
STRIKING A SUPPLEMENT TO MR. DANIELS’S EXPERT’S DEPOSITION
¶54 	The trial court did not abuse its discretion by
granting the Defendants’ motion to strike supplementation to
expert testimony. 	In reviewing the trial court’s decision to
strike changes to a deposition, we recognize that “trial courts
have broad discretion in matters of discovery.” 	Gardner v. Bd.
of County Comm’rs, 2008 UT 6, ¶ 51, 178 P.3d 893 (quoting Green
v. Louder, 2001 UT 62, ¶ 37, 29 P.3d 638). 	The close working
relationship between the parties and the district court during
the discovery process places the district court in a choice
position to make decisions about the scope and nature of
discovery. 	Accordingly, we review the district court’s decision
under an abuse of discretion standard. 	Id.
¶55 	Mr. Daniels argues that the trial court should have
allowed the changes to Dr. Sidney Kadish’s deposition because of
the provisions in Utah Rules of Civil Procedure 26(e)(1) and
30(e) that expressly allow supplementation and changes to
depositions. 	Rule 26(e)(1) requires parties to supplement
information contained in an expert’s deposition if that expert is
specially retained or employed for the litigation and if the
information is “incomplete or incorrect.” 	Similarly, rule 30(e)
allows a deponent to make “changes in form or substance” within
thirty days after the deposition. 	But those changes are not
meant “to alter what was said under oath.” 	Albrecht v. Bennett,
2002 UT App 64, ¶ 29, 44 P.3d 838 (quoting Greenway v. Int’l
Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992)).
¶56 	Here, the trial court found that the supplementation to
Dr. Kadish’s deposition was “new and additional testimony” and
that it did not revise incorrect information or make minor
changes. 	Instead, Dr. Kadish added to his opinion after again
reviewing Mr. Daniels’s records, which he had access to before
both depositions, and reading a deposition of another expert. 	We
hold that the trial court did not abuse its discretion in
striking the changes to Dr. Kadish’s deposition. 	The parties
deposed Dr. Kadish twice; the changes he sought to make were new
testimony, which does not fall under the change or
supplementation requirements under rules 26(e)(1) and 30(e).
VIII. 	A DISTRICT COURT MAY DENY AN
UNTIMELY MOTION TO AMEND
¶57 	The trial court did not abuse its discretion when it
denied Mr. Daniels’s second request for leave to amend his
complaint because the amendment was untimely and prejudicial. 	We

21 	No. 20080201
review a trial court’s denial to amend pleadings for abuse of
discretion. 	See Fishbaugh v. Utah Power & Light, 969 P.2d 403,
405 (Utah 1998).
¶58 	Rule 15(a) of the Utah Rules of Civil Procedure states
that after responsive pleadings are filed, “a party may amend his
pleading only by leave of court . . . ; and leave shall be freely
given when justice so requires.” 	Trial courts should liberally
allow amendments unless the amendments include untimely,
unjustified, and prejudicial factors. 	See Fishbaugh, 969 P.2d at
408; Kelly v. Hard Money Funding, Inc., 2004 UT App 44, ¶ 26, 87
P.3d 734. 	Trial courts are not required to find all three
factors to deny a motion to amend; “a court’s ruling on a motion
to amend can be predicated on only one or two of the particular
factors.” 	Kelly, 2004 UT App 44, ¶ 42. 	And “many other factors,
such as delay, bad faith, or futility of the amendment, may weigh
against the trial court’s allowing amendment.” 	Aurora Credit
Servs., Inc. v. Liberty W. Dev., Inc., 970 P.2d 1273, 1282 (Utah
1998).
¶59 	In this case, the trial court found the motion to amend
both untimely and prejudicial. 	Untimely motions are those “filed
in the advanced procedural stages of the litigation process.”
Kelly, 2004 UT App 44, ¶ 29. 	Motions are prejudicial when the
nonmoving party would have little time to prepare a response
before trial. 	Swan Creek Vill. Homeowners Ass’n v. Warne, 2006
UT 22, ¶ 21, 134 P.3d 1122. 	The trial court found the motion
both untimely and prejudicial because Mr. Daniels had all the
information to include the fraudulent concealment claim in his
first amended complaint in December 2006 and chose not to do so.
¶60 	Mr. Daniels argues that the trial court should have
granted his motion because the Defendants were aware that Mr.
Daniels might add a fraudulent concealment claim in August 2006.
Although Defendants had notice, Mr. Daniels did not actually move
to add fraudulent concealment until eleven months later, during
which time the period for fact discovery had expired and Mr.
Daniels had already amended his complaint. 	His motion was
untimely, and reopening discovery would have caused delay. 	We do
acknowledge, however, that the trial date was distant and that
the Defendants might have had sufficient time to prepare a
response to the claim of fraudulent concealment. 	But “we give
considerable deference to the district court, as it is ‘best
positioned to evaluate the motion to amend in the context of the
scope and duration of the lawsuit,’” id. ¶ 19 (quoting Smith v.
Grand Canyon Expeditions Co., 2003 UT 57, ¶32, 84 P.3d 1154), and
defer to the trial court’s determination that the additional
claim would have prejudiced the Defendants. 	We hold, therefore,

No. 20080201 	22
that the trial court did not abuse its discretion in denying Mr.
Daniels’s motion to amend.
CONCLUSION
¶61 	We hold that the jury instructions provided by the
trial court were in error because the Health Care Malpractice Act
statute of limitations does not begin to run until a plaintiff
discovers the negligence--including its causal event--that may
have caused his injury. 	We therefore vacate the jury verdict.
We also reverse the admission of Mr. Daniels’s superseded
complaint, which the trial court determined was relevant based on
its erroneous interpretation of the discovery rule is also
reversed. 	Further, upon our review of the facts presented, we
see no reason to continue to bifurcate the trial and encourage
the court and parties to move forward to a trial on the merits
and consider any remaining statute of limitations defenses at
that time.
¶62 	Additionally, we hold the trial court did not abuse its
discretion by excluding evidence that testifying witnesses and
the Defendants were covered by the same insurance provider
because the plaintiff failed to show a substantial connection
between the testifying witnesses and the insurance provider. 	Mr.
Daniels did not preserve his argument that the jury should have
been screened for connections to the insurance industry.
Further, we hold that gross negligence may support a claim for
punitive damages when the negligence was both knowing and
reckless. 	We also hold that a plaintiff may allege breach of
fiduciary duties against his physician, so long as those claims
are not abrogated by statute, such as the duty to disclose the
risks inherent to a medical procedure. 	Finally, we hold that the
district court did not abuse its discretion in granting the
Defendants’ motion to strike supplemental expert witness
testimony and in denying a motion to amend that it found to be
untimely. 	Therefore, we affirm in part and reverse in part, and
we remand the case to the trial court for proceedings consistent
with this opinion.
---
¶63 	Associate Chief Justice Durrant, Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.