More than three months after a hearing on the issue, 4th District Judge Robert C. Lunnen has dismissed a lawsuit filed by almost 100 women against Provo OB-GYN David H. Broadbent.
The women claimed in the lawsuit they were sexually assaulted while getting medical care from Broadbent and that he made insensitive, offensive and inappropriate remarks.
"It is an understatement to refer to the events as appalling. Dr. Broadbent's treatment of his patients is insensitive, disrespectful and degrading," Lunnen said in the order dismissing the lawsuit. "However, the question before the court cannot be decided based on the court's repugnance, anger or other equally justifiable reactions."
The judge's order, which was signed on Sept. 24 and filed with the court on Tuesday, explains that according to Utah Code, any legal action against a health care provider is considered medical malpractice. That means the 4th District Court does not have jurisdiction and must dismiss the lawsuit.
Complaints against Broadbent
The lawsuit filed against Broadbent claims he "took advantage of his position, (the women's) vulnerability, and that relationship of trust as he sexually battered and abused (the women filing the lawsuit) and numerous other women over the course of four decades."
The women's attorneys, in a hearing on the motions to dismiss the case, argued that Broadbent's actions are sexual abuse and "sexual abuse is not health care."
The lawsuit accuses Broadbent of sexual battery, sexual assault, and intentional infliction of emotional distress. It has allegations from multiple women claiming he touched them inappropriately or without warning, took actions that were not medically necessary for his sexual gratification and made inappropriate sexual comments.
"We do not believe that the Utah Health Care Malpractice Act protects, or is meant to protect, a medical provider who sexually abuses his patients — regardless of his specialty," Adam Sorenson said after the order was released.
Sorenson, an attorney representing the women, said they plan to appeal the decision and they continue to believe the lawsuit is filed correctly in 4th District Court.
"It's frustrating for (the women) to finally come forward and share their experience of abuse and be told, 'It's health care.' ... It's hard for them to hear that," Sorenson said.
Initially the lawsuit was filed by 50 women represented by Sorenson and other attorneys with Gross & Rooney. On Sept. 1, the court agreed to consolidate the case with another filed more recently by almost the same amount of women who have made allegations against Broadbent. That means both cases are now dismissed.
"I think it's a big issue, I think it's an important issue that 100 women can come forward and share their story of abuse this long after the initial 'me too' (movement) ... and yet we still have these huge hurdles," Sorenson said.
Intermountain Healthcare and Mountainstar Healthcare were also sued for negligent supervision and negligent infliction of emotional distress in the same lawsuit, since some of the allegations were around Broadbent's actions while providing care at their facilities.
"(Intermountain) knew what was happening and had complaints. ... Some focus needs to be on them as well and some of the accountability," Sorenson said.
He said one of the women filing the lawsuit brought concerns about Broadbent's actions directly to Intermountain's CEO and chief medical officer multiple years ago and was told the issue would be handled, but he said nothing happened.
"We knew this was going to be a long hard fight, and we plan to go the distance. The survivors deserve justice no matter how long it takes. And if we can help to clarify Utah law and force the institutions who protected and enabled Broadbent to change and prevent similar tragedies in the future — even better," Sorenson said.
The judge agreed with Broadbent and medical companies that because the incidents allegedly occurred while the women were receiving medical care from Broadbent, the lawsuit should have been filed as a medical malpractice lawsuit. He determined that the 4th District Court does not have jurisdiction over the issue since the women did not complete pre-litigation steps required in medical malpractice lawsuits.
Lunnen in the order explained that the purpose of the Utah Health Care Malpractice Act is to provide a reasonable time frame for when actions can be brought — which helps professional liability insurance premiums be calculated — and limit the number of lawsuits coming from health care, which has been increasing.
He said Broadbent provided health care, within the definition of the statute, to each of the plaintiffs and that they sought medical advice — specifically for obstetrical issues, meaning the conduct is not "only tangentially related to the medical services." Because of this, the judge determined the injuries "arose from health care" and should be discussed in a medical malpractice lawsuit.
Lunnen reiterated the decision is not a consideration of whether the allegations made against Broadbent are true, which is not something he was tasked with considering at this stage in the case.
Why not a medical malpractice lawsuit?
Sorenson said medical malpractice lawsuits protect health care providers by limiting the time frame where the lawsuit can be filed and limit the amount of damages that can be awarded.
If the lawsuit were filed as a medical malpractice lawsuit, a majority of the women involved would not be able to participate. It would be restricted to women who met with Broadbent within the last two years, or the last four years if they can prove they did not know it was abuse at the time.
Pain and suffering damages, the primary type of damages at stake in this lawsuit, would be capped at $450,000 under a medical malpractice lawsuit — meaning the women would be eligible for less money.
"While they're saying 'it's health care,' really what they're saying is we want the statute of limitations shorter and we want to cap the damages," Sorenson said.
Sorenson said if the Supreme Court agrees with the dismissal, the group will need to go through the proper pre-litigation process for a medical malpractice lawsuit and move forward with the women who fit the criteria.
"Here, our main focus is preventing him from doing this again. ... To me, abuse is abuse, it's not health care. We're not suing because a doctor messed up a procedure. We're suing because he sexually abused them," Sorenson said.
Sorenson said looking at the law, and the current Utah Supreme Court makeup with three women, he is optimistic.
"I do feel confident that we have a good shot of overturning it. ... We can't guarantee anything but I like our chances," he said.
The extra delay the appeal will take in the case is a hiccup for some clients who have been dealing with this alleged abuse for a long time, but for others it is really hard and is stretching the time they are involved in a sensitive lawsuit, he said. Regardless, being involved with litigation can be stressful and it will likely take 10 months or more from when they appeal the decision to when the Supreme Court makes any decision.
Broadbent's license to practice medicine is currently on hold. He voluntarily agreed with the Utah Division of Professional Licensing to temporarily suspend his professional license after the division and Provo Police Department received multiple complaints about alleged actions between 1995 and 2019. Broadbent has denied the allegations in the complaints.
While police have received multiple complaints about Broadbent, no criminal charges have been filed against him.