UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

HAILE HIRPA, individually and as the natural parent and guardian of DURETTI HIRPA, MATTI HIRPA and MITIKE HAILE HIRPA, minors,

Plaintiff-Appellant,

v.

IHC HOSPITALS INC., dba LOGAN REGIONAL HOSPITAL; MERRILL C. DAINES, M.D.,

Defendants-Appellee,

STATE OF UTAH,

Defendant-Intervenor.

No. 94-4263

(D.C. No. 90-CV-86)

(D. Utah)

ORDER AND JUDGMENT*

Before SEYMOUR, McKAY, and EBEL, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

This appeal has been abated pending the Utah Supreme Court's decision on the question we certified to that court concerning whether Utah's Good Samaritan Act applies to medical personnel responding to an in-hospital emergency. The court held "that doctors are protected by the Good Samaritan Act when they respond to an in-hospital emergency, if they have no preexisting duty to do so." Hirpa v. IHC Hosp., Inc., 948 P.2d 785, 790 (Utah 1997).

Upon receipt of the Utah Supreme Court's opinion, we asked the parties to file additional briefs addressing the issue of whether the defendant physician had a preexisting duty to provide care to the victim, Yeshi Wordoffa. The parties have submitted the requested briefs.

The Utah Supreme Court declared that

Courts or juries deciding whether a duty existed in a particular case may consider whether the doctor was 'on call' or otherwise contractually obligated to respond, whether hospital rules required that the doctor respond, whether hospital rules required that the doctor respond, whether a doctor/patient relationship existed, whether employment by the hospital created a duty, or whether a duty was created by the practice or custom of the doctor responding to similar emergencies.

Id. After consideration of the briefs, the record, and supplemental briefs of the parties, we have determined that this case should be remanded to the district court to reevaluate in the first instance whether there is a fact question regarding the defendant physician's preexisting duty in light of the Utah Supreme Court's opinion. The district court should also determine whether supplemental discovery is appropriate given the Utah Supreme Court's articulation of the factors to be considered in determining the existence of a duty in relation to the Good Samaritan Act.

The judgment of the United States District Court for the District of Utah is VACATED, and the case is REMANDED for further proceedings.

Entered for the Court

Monroe G. McKay

Circuit Judge