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This story discusses sexual assault.
Ninety-four women whose sexual abuse lawsuit against a Utah OB-GYN was thrown out of court last year are celebrating a victory this month. But it’s a victory tinged with irony.
Last week, the Utah Legislature passed a bill that will — if signed by Gov. Spencer Cox — put their rallying cry into law: Sexual assault is not health care.
The change, however, will not help the women, whose case was dismissed because Utah judges and appellate courts have interpreted the state’s current law to mean sexual assaults by health care providers are considered part of medical treatment. That meant their allegations had to be filed under the more restrictive rules of the state medical malpractice act.
The new law would reform medical malpractice law to exclude sexual assault. It would not be retroactive, which leaves the women hoping that the Utah Supreme Court will reverse the dismissal of their case on appeal.
Still, Brooke, one of the women suing the OB-GYN, Dr. David Broadbent, said it felt like a victory that their case will change how future victims will be treated if they decide to sue their abuser in court. Brooke is using only her first name to protect her privacy.
“It just felt like we were really a part of this,” Brooke said. “I’m so glad that the legislative side of the law corrected this huge problem, fixing that gap in our legal system that 94 women essentially fell through. We’ll fill it in for future people in this situation.”
Brooke alleges that Broadbent groped her in December 2008 while she was hospitalized after experiencing complications with her first pregnancy.
(Leah Hogsten/The Salt Lake Tribune)
The bill’s passage follows a recent investigation by The Salt Lake Tribune and ProPublica, which detailed how survivors who had been sexually abused by health care workers were treated more harshly in Utah’s civil courts than those harmed in other settings. Their cases had to be filed within two years, and they faced a $450,000 cap on damages for pain and suffering in medical malpractice cases. Both those restrictions are now likely to be lifted, and those who allege sexual assault in medical settings have the same legal standing as those who allege abuse in other settings: no damages cap and a four-year filing deadline.
Limits on medical malpractice awards are routine around the country, initially in response to concerns — largely driven by insurance companies — that the cost of health care was rising in the 1970s because of frivolous lawsuits and “runaway juries” doling out multimillion-dollar payouts. But Utah’s insistence that victims of intentional assaults like sexual abuse face the same caps is far less common.
The women who sued Broadbent alleged that he inappropriately touched their breasts, vaginas and rectums, hurting them, without warning or explanation. Some said he used his bare hand, instead of a speculum or gloves, during exams; one woman alleged that she saw he had an erection while he was touching her. His actions were not medically necessary, the women allege, and were instead “performed for no other reason than his own sexual gratification.”
The OB-GYN’s attorney, Chris Nelson, has said they believe the allegations against Broadbent are without merit. He declined to comment further, saying they will present their case in court.
The new law doesn’t open an avenue for these women to refile their case. Their hope remains with the Utah Supreme Court, which has agreed to hear their appeal of District Judge Robert Lunnen’s ruling dismissing their case.
“Sexual Abuse Is Not Health Care”
In arguing for the new law in the House, bill co-sponsor Rep. Nelson Abbott said the shorter, two-year filing deadline for medical malpractice can be particularly difficult for those who have been sexually assaulted. An abuser may try to assure them that the inappropriate behavior was part of a medical treatment, he explained, and it can take time for the victim to understand they were sexually assaulted.
“I think we can all agree that sexual abuse is not health care,” Abbott said on the House floor. “To create extra burdens or difficulties is really not fair to the patient. I think that’s why we’re carving out those exceptions to try to help those patients in those difficult situations.”
Fixing the law was particularly urgent in Utah because of the broad way its medical malpractice law is written and how it has been interpreted by judges, said state Sen. Mike McKell, who co-sponsored the bill.
State Sen. Mike McKell presented a bill to the Senate in February that would give those who allege sexual assault in medical settings the same legal standing as those who allege abuse in other settings.
(Leah Hogsten/The Salt Lake Tribune)
Any acts “arising” out of health care are considered part of a practitioner’s treatment under Utah law, which means any related claims must be filed under the medical malpractice act. Judges and appellate courts have ruled, for example, that a teenage boy was receiving health care when he broke his leg while hiking in a wilderness therapy program, as was a woman who was allegedly groped during a chiropractic exam.
Both of those plaintiffs’ lawsuits were dismissed because they were not filed as medical malpractice claims.
McKell said he thinks Utah judges have interpreted the malpractice act incorrectly.
“We need to be careful when we draft legislation. Words like ‘arises out of’ create a broad interpretation,” he said. “I think it’s tragic the way it happened.”
Patients sexually assaulted by health care providers face different challenges in other states. In Wisconsin, for example, an appellate court ruled that a physician groping a patient and having an erection was not medical malpractice. But there, the distinction hurt the victim’s case, because Wisconsin’s filing deadline for medical malpractice is longer than an intentional injury lawsuit. She lost her ability to sue.
Utah’s bill sailed through the state Legislature with little opposition. It received a unanimous vote in the Senate and only three nay votes in the House. The legislation had the support of the Utah Medical Association, which lobbies on behalf of state physicians, as well as an association of trial lawyers called the Utah Association for Justice.
Beau Burbidge, with the Utah Association of Justice, said he believed the legal challenges these women faced was an unintended consequence when the medical malpractice law was put into place decades ago.
McKell talks with personal injury attorney Beau Burbidge, center right, after the two presented McKell’s bill to a House committee on Feb. 28.
(Leah Hogsten/The Salt Lake Tribune)
“Nobody contemplated that a health care provider who sexually assaults a patient should be protected in some way by that act,” he said during a committee hearing. “The act is meant to protect health care providers providing good-for-the-community health care. Not rape. Not sexual assault.”
Broadbent’s accusers filed their lawsuit last year after one former patient, Stephanie Mateer, spoke out publicly about feeling violated during an examination more than a decade prior. She said Thursday that she “couldn’t be happier” that legislators took action in response to their lawsuit’s dismissal. The Salt Lake Tribune generally does not identify alleged sexual assault victims, but Mateer agreed to the use of her name.
“When I first spoke out about what happened to me, I had no idea that it would have such a massive and far-reaching impact,” Mateer said. “I never imagined that it would lead to the passing of this law, which increases the rights and safety of everyone receiving medical care in the state of Utah.”
(Bethany Baker/The Salt Lake Tribune)
Brooke said she and the other women knew that the law change wouldn’t benefit them personally, but they wanted to advocate for it in hopes it could help prevent future abuse.
“It’s not about taking anyone down. It’s not about trying to win settlements,” she said. “It’s about trying to right a wrong that happened, whether that’s changing the law or through getting our justice in the courtroom. But that’s the goal that everyone is seeking.”
“Hiding Under White Coats”
Although he recognized that the plaintiffs suing Broadbent wouldn’t benefit from the new law, McKell, the Senate sponsor, said he did not write the bill to be retroactive because he worried the law could be found unconstitutional if it allowed older cases to be reopened.
The Utah Supreme Court in 2020 struck down a similar law that reopened a window of time where survivors of childhood sexual abuse could sue their abuser in civil court. Those victims previously had until they were 22 years old to sue.
The law, passed in 2016, was a recognition by state lawmakers that childhood sexual assault has long-lasting effects on victims and that it could take decades of healing before someone is ready to sue their abuser. But Utah’s high court found it unconstitutional, saying that a filing deadline, called a statute of limitations, was a “vested right” of a defendant that state legislators could not take away.
The 94 women who sued Broadbent are now hoping that the Utah Supreme Court will reverse Lunnen’s ruling and allow them to continue their lawsuit against Broadbent and two hospitals where he had delivered babies and where some of the women say they were abused.
Adam Sorenson, the women’s attorney, argued in an appeal filed Thursday that Utah’s existing medical malpractice law was “not meant to advantage sexual predators hiding under white coats and specialty titles.”
“To think this is even a question, that is an issue being heavily debated, is shocking,” he wrote.
Attorney Adam Sorenson is representing the 94 women who sued Broadbent.
(Leah Hogsten/The Salt Lake Tribune)
Sorenson further argued that medical malpractice insurance policies often expressly exclude acts like sexual assault from its coverage, noting that Broadbent’s insurance carrier has also filed a lawsuit asking a judge to declare that his alleged actions are not covered by their insurance policy. It’s “nonsensical,” he wrote, to apply medical malpractice limitations to his clients simply because their alleged abuser is a health care provider.
Attorneys for Broadbent and the hospitals being sued now have a month to file their response. Sorenson estimates a Supreme Court decision won’t come until late fall.
Brooke said she lost hope in the legal system after the judge dismissed their case. Seeing the Legislature’s swift and nearly unanimous support to change the law because of their lawsuit has renewed her hope that the Utah Supreme Court will also take action and let their case move forward.
“I just never thought it would be questioned,” she said. “I never thought this would ever be the situation when I signed the paperwork and decided that this was something that I felt strongly that I needed to be involved in.”
Help ProPublica and The Salt Lake Tribune Investigate Sexual Assault in Utah
If you need to report or discuss a sexual assault in Utah, you can call the Rape and Sexual Assault Crisis Line at 801-736-4356. Those who live outside of Utah can reach the National Sexual Assault Hotline at 800-656-4673.
Mollie Simon of ProPublica contributed research.