Opinion
No. 26269-3-III.
April 17, 2008.
Appeal from a judgment of the Superior Court for Stevens County, No. 06-2-00464-5, Allen Nielson, J., entered May 1, 2007.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Kulik, A.C.J., and Thompson, J. Pro Tem.
This lawsuit follows an automobile accident that took the life of the plaintiff's mother, Elanora Cogdell. A car driven by Darryl Cooper crossed the center line and struck Ms. Cogdell's car head on. Mr. Cooper was under the influence of prescriptive medication at the time of the accident. Defendant, Dr. James Alderson, a podiatrist, had prescribed the drugs. The Washington State Podiatric Medical Board was in the process of investigating Dr. Alderson. And Dr. Alderson's license had been revoked in the past for unprofessional conduct. The plaintiff sued the State for negligence. The court concluded that the public duty doctrine insulated the State from liability. We agree and affirm the summary dismissal of the suit.
FACTS
Dr. James Alderson was a podiatrist in Illinois. The state of Illinois revoked his license due to unprofessional conduct, mostly related to drug abuse. The licensing board in Illinois purportedly revoked his license on charges of writing false prescriptions, drug diversion, and alcohol and narcotics abuse.
Dr. Alderson applied in Washington for a license to practice podiatric medicine in 1990. The Podiatric Medical Board (Board) rejected his application. Dr. Alderson later obtained a probationary license to practice in Washington in 1992. The terms of the probationary license are unclear from the record.
The Board suspended his license in November 1993 based on the interest of public health and safety for, among other things, the following: failing to keep accurate medical records, diverting prescription narcotic drugs from one patient or person to another, illegally dispensing prescription drugs, prescribing controlled substances under a false name, forging prescriptions under a false name, and altering medical records to deceive a Washington Board of Pharmacy investigator.
Dr. Alderson reapplied for his license in 2000. The Board reinstated his license in 2001. The Board received a complaint regarding Dr. Alderson in June 2003 alleging unprofessional conduct. The complaint also alleged that he had violated the conditions of his probation for driving under the influence and he had prescribed narcotics for an acquaintance but diverted it for his own use. The Board again investigated Dr. Alderson.
Darryl G. Cooper was a patient of Dr. Alderson's in 2003. Dr. Alderson prescribed medication for him, including narcotic drugs. Mr. Cooper was under the influence of those drugs when he drove his car across the center line and struck Elanora Cogdell's car head on in October 2003. Both Ms. Cogdell and Mr. Cooper died from injuries sustained in the car accident.
Elanora Cogdell's daughter and personal representative, Jennifer McCoy, sued Dr. Alderson and the State of Washington. She claimed, among other things, that the State of Washington Podiatric Medical Board was negligent when it restored Dr. Alderson's license and failed to suspend it in June 2003 on an emergency basis.
The trial court summarily dismissed the case against the State of Washington on the State's motion.
DISCUSSION
The material facts here are not disputed. The only question before us is then one of law — whether the State acting through the Board owed a duty to Ms. McCoy, as opposed to a duty to the public at large (the public duty doctrine). That is a question of law. Folsom v. Burger King, 135 Wn.2d 658, 671, 958 P.2d 301 (1998); Babcock v. Mason County Fire Dist. 6, 144 Wn.2d 774, 784-85, 30 P.3d 1261 (2001). And so our review is de novo. Wingert v. Yellow Freight Sys., Inc., 146 Wn.2d 841, 847, 50 P.3d 256 (2002).
Ms. McCoy argues that the State negligently granted Dr. Alderson a license and then negligently failed to timely suspend that license, all of which foreseeably led to the accident here. The State responds that the claim here clearly falls within the purview of the public duty doctrine and the trial judge then properly dismissed the complaint.
A cause of action in negligence requires a duty, breach of that duty, and damages that proximately result from the breach. Folsom, 135 Wn.2d at 671. The threshold question here is whether the State owed a duty to the plaintiffs. Osborn v. Mason County, 157 Wn.2d 18, 27-28, 134 P.3d 197 (2006). And that question turns on whether the State owed a duty to Elanora Cogdell and her family as opposed to the public at large. Id. at 25-26. The trial judge concluded that it did not. And we agree.
The public duty doctrine is based upon the policy that legislative enactments and executive regulations passed for public benefit should not be discouraged by exposing the government to unlimited liability for individual claims. Taylor v. Stevens County, 111 Wn.2d 159, 163, 759 P.2d 477 (1988). Statutes that regulate a profession are for public benefit. Id. at 169. And so they create no duty to individuals for private damages. Id.
Ms. McCoy relies upon the "failure to enforce" exception to the public duty doctrine. It would impose a duty on the state despite the public duty doctrine if a number of conditions are met. Ravenscroft v. Wash. Water Power Co., 87 Wn. App. 402, 415, 942 P.2d 991 (1997), aff'd in part, rev'd in part on other grounds, 136 Wn.2d 911, 969 P.2d 75 (1998). We construe the failure to enforce exception narrowly. Id. And, on these facts, Ms. McCoy satisfies none of the elements necessary to invoke this exception.
To invoke this exception to the public duty doctrine, Ms. McCoy must first show that the State (here the Board) had actual knowledge of a statutory violation. Id. There has been no such showing. The Board was in the process of investigating whether Dr. Alderson engaged in unprofessional conduct. Moreover, Dr. Alderson had a right to notice and a hearing on the validity of the allegations against him. RCW 18.130.160, .090.
RCW 18.130.160 states that upon a finding, after hearing, that a license holder has indeed committed unprofessional conduct, the disciplinary authority may consider the imposition of sanctions and issue an order providing for a variety of actions including any one or combination of the following: (1) revocation of the license; (2) suspension of the license for fixed or indefinite term; (3) restriction of the practice; and (4) requiring completion of a specific program.
Next, Ms. McCoy must show that the Board failed to take corrective action. Here, the Board did what it was supposed to do — investigate allegations of misconduct. RCW 18.130.050(2). Any suspension of Dr. Alderson's license would have had to follow notice and a hearing absent some emergency. RCW 18.130.050(7), .160, .090. And whether any emergency warranted suspension is a discretionary decision vested in the Board. RCW 18.130.050(7), (13).
RCW 18.130.050 states: "The disciplining authority has the following authority . . . (13) To grant or deny license applications, and in the event of a finding of unprofessional conduct by an applicant or license holder, to impose any sanction against a license applicant or license holder provided by this chapter."
Ms. McCoy must next show that the Board had a statutory duty to take corrective action. Ravenscroft, 87 Wn. App. at 415. Again, here there is no such requirement. The legislature granted the Board broad discretion for determining whether to impose sanctions and what sanctions should be imposed in such cases. RCW 18.130.160, .110, .050(13).
RCW 18.130.110 states that if a disciplinary board determines unprofessional conduct, it shall prepare and serve findings of fact and an order.
Finally, Ms. McCoy must show that she is within the class the statute is intended to protect. Ravenscroft, 87 Wn. App. at 415. She is not. Here, the purpose of the statutes is for "the protection and promotion of the public health, safety, and welfare." RCW 18.22.005. The statutory scheme here is then intended to protect the public by assuring competent podiatrists.
RCW 18.22.005 states: "The legislature finds that the conduct of podiatric physicians and surgeons licensed to practice in this state plays a vital role in preserving the public health and well-being. The purpose of this chapter is to establish an effective public agency to regulate the practice of podiatric medicine and surgery for the protection and promotion of the public health, safety, and welfare and to act as a disciplinary body for the licensed podiatric physicians and surgeons of this state."
And "a duty [under the failure to enforce exception] does not exist if the government agent has broad discretion about whether and how to act." Halleran v. Nu W., Inc., 123 Wn. App. 701, 714, 98 P.3d 52 (2004). After a hearing and upon a finding that a license holder has committed unprofessional conduct, the disciplinary authority may consider the imposition of sanctions. RCW 18.130.160. And it may "impose any sanctions" against a license holder provided by this chapter. RCW 18.130.050(13). The power of the board, here the Podiatric Medical Board, is discretionary. RCW 18.130.160, .110, .050(13).
Finally, no duty exists unless the duty breached is owed to the injured person as an individual and is not the breach of an obligation owed to the public at large. Halleran, 123 Wn. App. at 710. Here, the duty is to the public at large. See RCW 18.22.005. And this precludes liability. Babcock, 144 Wn.2d at 784-85; Taylor, 111 Wn.2d at 170; Halleran, 123 Wn. App. at 714.
We affirm the dismissal of the complaint.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, A.C.J., and THOMPSON, J. Pro Tem., concur.