Utah Supreme Court considers whether to revive a lawsuit that accused a Provo OB-GYN of sexually abusing dozens of women

Heather Prinz hasn’t watched the video of her son’s birth since shortly after she delivered him 16 years ago. For all these years, it has sat stashed away in a box.

She knows that if she watches that video, she said, it could flood her with memories about the ways her OB-GYN from her time as a Utah Valley University student treated her — moments which her mind has tried to block out. She remembers how she felt the Utah doctor, David Broadbent, belittled her when they spoke, and how she said he “chuckled” when he gave her a painful rectal exam during a postpartum visit. She remembers crying after her appointments, but reasoning with herself that she was abnormal or too sensitive.

“Over and over in my head, I questioned,” she said. “I’m just a student, I know nothing. This is a man who is a doctor who knows what he’s doing.”

But when four women last year sued Broadbent for sexual assault, Prinz said she began to realize that what had happened to her wasn’t normal. She and other women soon joined that same lawsuit — totaling 94 plaintiffs who allege the Provo doctor sexually abused them during the span of his 47-year career.

The women want to seek civil damages from Broadbent and two hospitals where he had delivered some of their babies, but a judge dismissed their case last September because he decided they had filed it incorrectly as a civil sexual assault claim rather than a medical malpractice case.

That’s what brought Prinz to drive 18 hours from her home in Arkansas to join more than a dozen other plaintiffs at the state courthouse in Salt Lake City Friday: To watch as the Utah Supreme Court heard arguments about whether that judge made an error when he ruled that Utah’s medical malpractice law covers any act or treatment performed by any health care provider during the patient’s medical care. The women had all been seeking health care, Judge Robert Lunnen wrote, and Broadbent was providing that when the alleged assaults happened.

Whether their case is considered malpractice or a civil sex assault claim matters because many of Broadbent’s accusers could lose their chance to sue — malpractice claims have to be filed within a shorter, two-year window of time. And even for those who would still be able to sue, malpractice law also limits how much money they could receive for pain and suffering.

The women’s lawsuit alleges Broadbent inappropriately touched their breasts, vaginas and rectums, without warning or explanation, and hurt them. Some said he used his bare hand — instead of using a speculum or wearing gloves — during exams. One alleged that she saw he had an erection while he was touching her.

An attorney for Broadbent has denied these women’s allegations, saying they are “without merit.” The OB-GYN agreed last year to stop practicing medicine while police and prosecutors investigate.

Sexual assault or health care?

This case changed Utah law earlier this year, after state legislators clarified that the medical malpractice act does not cover sexual assault. But the law change was not retroactive, so the women appealed to Utah’s highest court.

Attorneys for Broadbent and the hospitals argued in court papers filed ahead of Friday’s hearing that Lunnen properly ruled that the exams the women described “arose” out of health care treatments, and therefore, were covered by Utah’s medical malpractice law.

Caroline Olsen, who represents Intermountain Health, argued Friday that some of the allegations in the women’s lawsuit are disputes of whether Broadbent’s conduct fell “outside the standard of care.” That type of dispute, she said, clearly is medical malpractice.

An OB-GYN who rapes a patient in a parking lot would not be covered by Utah’s medical malpractice law, Olsen argued. But allegations involving unneeded or inappropriate rectal exams could be debated as medically necessary — while “unusual,” she said, there is literature to support that it could be needed.

“Any instance in which someone is in the office of a physician who’s regularly going to need to be touching, for example, sexual organs, there’s going to be some kind of nexus that arises in a way that just doesn’t exist in other cases,” she argued.

Justice Paige Petersen questioned Olsen on this point, saying some of the women allege actions that are “out of place” or not part of a normal exam.

“Someone’s about to deliver a baby and he says, ‘Oh let’s do a breast exam right now,’” she said. “What? I mean that’s not part of medical care. There are allegations where there’s absolutely no need for that at that time.”

Olsen responded by saying that whether Broadbent’s actions were “medically indicated” will likely be a dispute at trial, which she added is a strong indicator that the case falls within Utah’s medical malpractice laws.

Terry Rooney, an attorney for the 94 women, argued that his clients were not complaining that they received improper or unnecessary medical care — the types of complaints that generally are considered medical malpractice. They allege they were assaulted, he said.

“Sexual assault is sexual assault, whether it happens in a hospital parking lot or in the hospital or in a clinic,” he said. “It’s a different act, it’s an intentional act. And it’s the exact opposite of health care.”

The high court questioned Rooney on the broad nature of Utah’s malpractice law, which defines “health care” as any act done by a provider “for, to or on behalf of a patient during the patient’s medical care.” But Rooney pushed back, saying that just because his clients were in Broadbent’s office, doesn’t mean they were receiving health care when he allegedly sexually assaulted them.

“We don’t believe that these acts of sexual abuse are ‘for, to or on behalf of a patient,’” Rooney says, quoting Utah’s medical malpractice law. “Not every act performed by a health care provider is health care.”

Standing together

Stephanie Mateer was one of the first four women to sue Broadbent. She watched Friday’s hearing alongside the other plaintiffs, who wore teal ribbons as a show of unity. She left the courtroom feeling hopeful that the high court will see the case their way: That sexual assault is not health care.

The Utah Supreme Court doesn’t make rulings from the bench, and will issue a written decision in coming months.

Mateer said it felt powerful to be at the courthouse Friday with other women who shared similar experiences with Broadbent.

“It’s so much harder to stand alone,” she said. “And it’s a lot easier that so many other women have come forward and said this happened to me, too.”

After the hearing, the plaintiffs posed for photos outside — 17 of them in matching teal outfits, smiling as they lined the stairs into the limestone courthouse.

Prinz said she feels more empowered now than ever. Before this week, she took careful steps to only be identified as “Jane Doe H.Z.” in connection to this case. But now, she wants to share her story. The pain is still there, she said, but she no longer feels guilt or shame about what she says happened to her in Broadbent’s office.

“I know this was not because of some error inside my DNA. This happened to me because of who Dr. Broadbent is,” she said. “I feel good. I did not ever think that I would be able to stand in front of this building with a smile on my face.”