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PROVO — Attorneys in a court hearing Thursday did not argue whether allegations of sexual assault by Dr. David Broadbent have merit, but whether the lawsuit was filed correctly.
A legal complaint referencing the stories of 50 different women filed Feb. 15 in 4th District Court accuses Broadbent, a Provo OB-GYN, of unnecessarily and inappropriately touching women during pelvic or breast exams. It was initially filed with four unnamed women as plaintiffs, but soon an amended complaint was filed with stories from many more women claiming Broadbent had abused them.
In the civil complaint, Broadbent is also accused of giving unnecessary exams, sometimes when a patient had said that they did not want or need them, for his own sexual pleasure. In some of these instances, which span about 40 years, the complaint states that the patient's husband or a nurse was in the room, but in others the doctor and patient were alone.
The complaint also names MountainStar Healthcare and Intermountain Healthcare. The companies did not employ Broadbent, who operated his own office, but allowed him to perform procedures at their facilities, and the complaint alleges that some of the abuse occurred at their facilities.
Attorneys for two hospitals said the claims should fall under medical malpractice statutes, which would mean the victims should have gone through certain steps before filing a lawsuit, including giving notice and a pre-litigation review, and is subject to certain time limits for when it can be filed.
"All of the allegations here relate to whether or not the actions of Dr. Broadbent went outside the bounds of what was medically appropriate," said David Jordan, attorney for Intermountain Healthcare.
He argued that health care, according to Utah's laws around medical malpractice, is any act or treatment performed during a patient's treatment. He said improper treatment can still be health care, even when it is intentional.
Broadbent's attorney, Karra Porter, made similar arguments. She said the procedural requirements associated with medical malpractice claims mean parties are more prepared and informed when the case comes before a court.
But attorney Terence Rooney, who represents the alleged victims, argued that sexual assault should not be considered medical practice, whether it happens during a medical exam, or not.
"I think there's a big picture here that needs to be recognized, and that big picture is, are we really saying that sexual abuse is health care? Is that really what the Legislature intended when they drafted the medical malpractice act?" Rooney said.
He said it is troubling and shocking that they were debating whether sexual abuse is health care in the courtroom. Rooney argued that the allegations from his clients should not be treated differently because Broadbent is a gynecologist, but should be treated the same as sexual abuse from a eye doctor or psychiatrist.
Rooney said that if the facts claimed in the lawsuit are true, then they are talking about criminal conduct. He said many similar cases in the criminal system, including one in Utah, have led to time in prison. Because prosecutors have not or cannot file a criminal case in the matter, he said his clients should be able to file a civil case.
In relation to the hospitals, Rooney said they have an obligation to protect the public from a predator and respond to complaints that are filed. Specifically, he said there were complaints filed against Broadbent with Intermountain Healthcare that should have been taken more seriously.
Judge Robert Lunnen said, before the argument from the attorneys, that his initial reaction is that these claims would fall under the medical malpractice act, as the hospitals and Broadbent claimed. He noted Thursday that each allegation against Broadbent occurred at a physician's office or clinic and during treatment.
Lunnen, however, plans to consider his decision over the next few weeks.
"This is an interesting issue and it's a little complex," the judge said.
He told the attorneys to look for a ruling hopefully in the next two to four weeks. He will either decide whether the claims should be filed as medical malpractice claims and dismiss the lawsuit, or whether the claims were filed correctly and the case can move forward.