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Rollins v. State

The Court of Appeals of Washington, Division One
Aug 13, 2007
140 Wn. App. 1008 (Wash. Ct. App. 2007)

Opinion

No. 59651-9-I.

August 13, 2007.

Appeal from a judgment of the Superior Court for King County, No. 05-2-40539-2, Deborah D. Fleck, J., entered July 17, 2006.


Affirmed by unpublished opinion per Dwyer, J., concurred in by Baker and Becker, JJ.


The plaintiffs in this action are former patients of Charles Momah, an obstetrician/gynecologist who was convicted in 2005 of two counts of rape and two counts of indecent liberties arising out of his conduct toward patients. The plaintiffs here contend that they were subjected to acts of sexual assault and other misconduct while they were under Momah's care, and assert that the State is liable to them in negligence for licensing Momah, for failing to timely investigate complaints against him, and for failing to timely discipline him for his conduct. The State moved the trial court for summary judgment asserting that, pursuant to the public duty doctrine, the State did not owe the plaintiffs a duty of care, a necessary element of an actionable negligence claim. The trial court agreed, and granted the State's motion. We also agree, and affirm.

FACTS

In 1992, Momah submitted an application to practice medicine in Washington to the Medical Quality Assurance Commission (MQAC), the division of the State Department of Health responsible for the licensing and discipline of physicians. RCW 18.71.002. MQAC approved the application and issued a license to Momah in 1993.

Between 1997 and 2003, MQAC received information regarding several alleged incidents of unprofessional conduct on Momah's part. Such information included a 1997 charge of medical fraud against Momah in New York State, where he was licensed to practice medicine before moving to Washington, a 1998 anonymous complaint that Momah had threatened two patients after they attempted to obtain their medical records from Momah's staff, and a 1999 report that Momah had been reprimanded in New York for negligence and for willfully filing a false report. MQAC opened an investigation on each of the reports it received, but eventually closed each of the investigations without taking disciplinary action.

The plaintiffs' briefs contain several factual assertions, supported solely by citation to the patients' complaint, regarding complaints allegedly asserted against Momah and received by MQAC. Review of the record did not reveal evidentiary support for several such assertions.
CR 56(e) provides that a party opposing summary judgment "may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Thus, when a ruling on summary judgment is appealed, a party must make reference to documentary evidence in the record in support of each factual assertion in its brief, rather than mere reference to pleadings which themselves contain unsupported factual assertions. See RAP 10.3(a)(5) (reference to record must be included for each factual statement); Grobe v. Valley Garbage Serv., Inc., 87 Wn.2d 217, 228-29, 551 P.2d 748 (1976) (cases on appeal are decided only from evidence in the record).
Only those facts that have been verified by reference to documentary evidence in the record are relied upon herein.

RCW 18.130.050 vests MQAC with the authority to investigate complaints of unprofessional conduct against license holders, to impose sanctions against license holders upon a finding of unprofessional conduct, and to take emergency action ordering summary suspension of a license pending disciplinary proceedings. RCW 18.130.050(2), (7), (13). RCW 18.130.160 iterates the sanctions that MQAC may impose upon a finding of unprofessional conduct. RCW 18.130.160.

In November 2000, MQAC received a complaint from a medical center where Momah was then practicing, alleging that Momah had engaged in unprofessional conduct toward five patients. MQAC again opened an investigation on Momah. As a result of that investigation, in January 2002, MQAC determined that it had sufficient evidence to issue a Statement of Charges (SOC) against Momah. MQAC received several additional complaints of unprofessional conduct against Momah in 2002 and 2003. MQAC investigated the complaints and incorporated information gathered from that investigation into the SOC.

MQAC issued the SOC against Momah in June 2003, charging Momah with several acts of unprofessional conduct, including misrepresenting facts on his licensing application, misdiagnosing and incorrectly treating patients, performing unnecessary surgeries, and failing to employ qualified staff.

On August 14, 2003, MQAC received a sexual misconduct complaint against Momah regarding an incident that had occurred between Momah and a patient a few days earlier. On August 28, 2003, MQAC received a medical report corroborating the patient's complaint.

On September 10, 2003, MQAC summarily suspended Momah's license. MQAC subsequently received additional complaints from patients who claimed that they had been sexually assaulted by Momah, as well as several additional complaints from patients who asserted that they were treated by Momah's twin brother without their consent.

Criminal charges were subsequently filed against Momah and, in November 2005, he was convicted of two counts of rape and two counts of indecent liberties. In June 2006, MQAC permanently revoked Momah's license to practice medicine.

The plaintiffs filed this action against the State in December 2005, asserting that they were subjected to acts of sexual assault and other misconduct while they were under Momah's care, and contending that the injuries they incurred as a result of that misconduct were proximately caused by the State's negligence in licensing Momah, failing to timely investigate complaints against him, and failing to timely discipline him for his conduct.

The State moved the trial court for summary judgment. The trial court granted the motion, ruling that, pursuant to the public duty doctrine, the State did not owe a duty of care to the plaintiffs, an essential element of an actionable negligence claim.

This appeal followed.

DISCUSSION

In reviewing a trial court's ruling on a motion for summary judgment, we engage in the same inquiry as the trial court. Halleran v. Nu W., Inc., 123 Wn. App. 701, 709, 98 P.3d 52 (2004). We affirm a ruling granting summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). All facts and reasonable inferences therefrom must be considered in the light most favorable to the non-moving party. Halleran, Wn. App. 709-10. In negligence actions, the determination of whether an actionable duty is owed to a plaintiff represents a question of law subject to de novo review. Cummins v. Lewis County, 156 Wn.2d 844, 852, 133 P.3d 458 (2006).

Our legislature has waived the State's sovereign immunity to tort suits, declaring that that the State may be liable for damages arising out of its tortious conduct "to the same extent as if [it] were a private person or corporation." RCW 4.96.010(1). As in all negligence actions, however, the threshold determination when such a claim is asserted is whether a duty of care is owed to the plaintiff asserting the claim. Taylor v. Stevens County, 111 Wn.2d 159, 163, 759 P.2d 447 (1988).

In determining whether a duty of care exists when a claim is asserted against the State, we consider the "public duty doctrine," which requires a showing that "the duty breached was owed to the injured person as an individual and was not merely the breach of an obligation owed to the public in general." Taylor, 111 Wn.2d at 163 (quoting J B Dev. Co. v. King County, 100 Wn.2d 299, 303, 669 P.2d 468 (1983), overruled on other grounds by Taylor, 111 Wn.2d 159, and Meaney v. Dodd, 111 Wn.2d 174, 759 P.2d 455 (1988)). The doctrine reflects the policy that "legislative enactments for the public welfare should not be discouraged by subjecting a governmental entity to unlimited liability." Taylor, 111 Wn.2d at 170.

Thus, the public duty doctrine is a "focusing tool" used to determine whether the State owed a specific duty to a particular individual, the breach of which is actionable, or merely a duty to the "nebulous public," the breach of which is not actionable. Osborn v. Mason County, 157 Wn.2d 18, 27, 134 P.3d 197 (2006) (quoting Taylor, 111 Wn.2d at 166). Such a specific duty exists under four circumstances, referred to as "exceptions" to the public duty doctrine: (1) where a "special relationship" exists between the plaintiff and the State; (2) where there is a "legislative intent" to impose a duty of care on the State; (3) where the State is guilty of a "failure to enforce" a specific duty to the plaintiff; and (4) where the government has engaged in "volunteer rescue" efforts. Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 786, 30 P.3d 1261 (2001); Donohoe v. State, 135 Wn. App. 824, 834, 142 P.3d 654 (2006).

The plaintiffs here assert that the State owed them a duty of care pursuant to both the "legislative intent" and the "failure to enforce" exceptions to the public duty doctrine. We hold that neither exception applies.

Legislative Intent Exception

We first hold that the legislative intent exception to the public duty doctrine did not here impose on the State a duty of care in relation to the plaintiffs.

The legislative intent exception imposes a duty of care on the State when a regulatory statute or code provision "evidences a clear legislative intent to identify and protect a particular and circumscribed class of persons" of which the plaintiff is a member. Ravenscroft v. Wash. Water Power Co., 136 Wn.2d 911, 929, 969 P.2d 75 (1998). In order for this exception to apply, the legislature's intent to protect a particular and circumscribed class of persons "must be clearly expressed within the provision — it will not be implied." Ravenscroft, 136 Wn.2d at 930 (citing Baerlein v. State, 92 Wn.2d 229, 232, 595 P.2d 930 (1979)).

Our Supreme Court and this court have routinely held that provisions which evidence only an intent to benefit the public as a whole, rather than a particular class of individuals, do not give rise to a duty of care pursuant to the legislative intent exception. See, e.g., Ravenscroft, 136 Wn.2d at 929 (regulations which refer to recreational boating are primarily aimed at protecting the public, not just members of a particular class consisting of those who participate in recreational boating); Burnett v. Tacoma City Light, 124 Wn. App. 550, 563, 104 P.3d 677 (2004) (statute empowering cities to take actions necessary to combat local disasters evidences intent to protect "the people of the state," rather than a particular group of individuals).

Furthermore, in cases where we have identified a specific duty of care pursuant to the legislative intent exception, we stressed the fact that the applicable statutes expressly focus on the protection of a specific class of individuals. See, e.g., Yonker v. DSHS, 85 Wn. App. 71, 78-80, 930 P.2d 958 (1997) (duty of care arises from RCW 26.44.010 which declares the chapter's purpose to safeguard the welfare of abused and neglected children); Donaldson v. Seattle, 65 Wn. App. 661, 666-68, 831 P.2d 1098 (1992) (duty of care arises from RCW 10.99.010 which declares the chapter's purpose to be "to assure the victim of domestic violence the maximum protection from abuse.").

Despite the plaintiffs' contention to the contrary, the statutes governing MQAC and its enforcement authority, chapter 18.71 RCW (Physicians) and chapter 18.130 RCW (Regulation of Health Professionals — Uniform Disciplinary Act), evidence only an intent to benefit the people of the State of Washington in general, rather than to identify a specific group of individuals that are owed a special duty of care.

The statements of purpose contained in chapter 18.71 RCW expressly provide that the purpose of MQAC is to benefit the residents of Washington as a whole:

It is the purpose of the medical quality assurance commission to regulate the competency and quality of professional health care providers. . . . Rules, policies, and procedures developed by the commission must promote the delivery of quality health care to the residents of the state of Washington.

RCW 18.71.002 (emphasis added).

This chapter is passed:

(1) In the exercise of the police power of the state to protect public health [and] to promote the welfare of the state . . .;

(2) Because the health and well-being of the people of this state are of paramount importance;

(3) Because the conduct of members of the medical profession licensed to practice medicine and surgery in this state plays a vital role in preserving the health and well-being of the people of the state. . . .

RCW 18.71.003 (emphasis added).

The statement of intent contained in chapter 18.130 RCW similarly expresses the legislature's intent to protect the people of Washington generally, rather than a specific class thereof:

It is the intent of the legislature to strengthen and consolidate disciplinary and licensure procedures for the licensed health and health-related professions and businesses by providing a uniform disciplinary act with standardized procedures for the licensure of health care professionals and the enforcement of laws the purpose of which is to assure the public of the adequacy of professional competence and conduct in the healing arts.

RCW 18.130.010 (emphasis added).

Despite these broad declarations, the plaintiffs assert that the legislative intent of the statutes is to protect a class of individuals consisting of patients of physicians who are the subject of professional misconduct complaints. Such a class, however, is not identified in the statement of purpose of either chapter, nor is a legislative intent to particularly protect such a class clearly expressed in any other provision.

The plaintiffs' citation to RCW 18.130.180 does not establish to the contrary. That statute provides, in relevant part:

The following conduct, acts, or conditions constitute unprofessional conduct for any license holder or applicant under the jurisdiction of this chapter:

. . . .

(4) Incompetence, negligence, or malpractice which results in injury to a patient or which creates an unreasonable risk that a patient may be harmed.

. . . .

(24) Abuse of a client or patient or sexual contact with a client or patient.

(Emphasis added.) That statute purports only to iterate those circumstances that amount to unprofessional conduct on the part of a license holder, some but not all of which involve a license holder's conduct toward patients. It does not purport to define injured patients as the particular class the legislature intended to benefit by promulgating the statutory scheme.

The statutes here at issue do not contain a clear expression of legislative intent to protect a particular and circumscribed class of which the plaintiffs are members. Accordingly, the State does not owe a duty to the plaintiffs pursuant to the legislative intent exception to the public duty doctrine.

Failure to Enforce Exception

We are similarly unpersuaded that the failure to enforce exception imposes a duty of care on the State under the circumstances of this case.

The failure to enforce exception to the public duty doctrine imposes a duty of care upon the State where (1) there is a statutory duty to take corrective action; (2) government agents responsible for enforcing the statutory requirement possess actual knowledge of a statutory violation; (3) the agents fail to take corrective action; and (4) the plaintiff is within the class the statute is intended to protect. Halleran, 123 Wn App. at 714.

The failure to enforce exception is narrowly construed. Atherton Condo. Apartment-Owners Ass'n Bd. of Directors v. Blume Dev. Co., 115 Wn.2d 506, 531, 799 P.2d 250 (1990). A duty does not exist pursuant to the exception unless the relevant statute "mandates a specific action to correct a violation." Donohoe, 135 Wn. App. at 849. Such a mandate does not exist if the government agent has broad discretion regarding whether and how to act. Donohoe, 135 Wn. App. at 849 (no duty exists pursuant to statute that vests DSHS with broad discretion to take a wide variety of enforcement actions when a nursing home fails to comply with applicable regulations); Halleran, 123 Wn. App. at 714 (no duty exists pursuant to the Securities Act, which does not contain a specific directive to the government employee to take corrective action in response to a violation of the act).

Despite the plaintiffs' contention to the contrary, the statutes governing MQAC and its enforcement authority do not mandate specific action to correct violations by licensed physicians. Rather, the statutes expressly vest in MQAC broad discretion regarding whether to act and what acts to take.

RCW 18.130.050 iterates MQAC's general authority in permissive rather than mandatory terms:

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.

(Emphasis added.) RCW 18.130.160 further provides that MQAC has the discretion to impose sanctions upon a finding of unprofessional conduct, and may consider a broad range of available sanctions:

Upon a finding, after hearing, that a license holder or applicant has committed unprofessional conduct . . ., the disciplining authority may consider the imposition of sanctions . . . and issue an order providing for one or any combination of the following:

(1) Revocation of the license;

(2) Suspension of the license for a fixed or indefinite term;

(3) Restriction or limitation of the practice;

(4) Requiring the satisfactory completion of a specific program of remedial education or treatment;

(5) The monitoring of the practice by a supervisor approved by the disciplining authority;

(6) Censure or reprimand;

(7) Compliance with conditions of probation for a designated period of time;

(8) Payment of a fine for each violation of this chapter, not to exceed five thousand dollars per violation. Funds received shall be placed in the health professions account;

(9) Denial of the license request;

(10) Corrective action;

(11) Refund of fees billed to and collected from the consumer;

(12) A surrender of the practitioner's license in lieu of other sanctions, which must be reported to the federal data bank.

Furthermore, despite the plaintiffs' contention to the contrary, RCW 18.130.080 does not mandate a specific corrective action sufficient to give rise to a duty pursuant to the failure to enforce exception. That statute provides, in relevant part:

If the disciplining authority determines that [a complaint regarding unprofessional conduct] merits investigation, or if the disciplining authority has reason to believe, without a formal complaint, that a license holder or applicant may have engaged in unprofessional conduct, the disciplining authority shall investigate to determine whether there has been unprofessional conduct.

RCW 18.130.080(1) (emphasis added). While the statute mandates an investigation when MQAC has reason to believe that a physician has engaged in unprofessional conduct, it does not impose on MQAC a mandatory duty to take specific corrective action upon a finding that such misconduct has occurred.

In arguing that RCW 18.130.080 imposes a duty of care on the State, the plaintiffs rely on Yonker v. Dep't of Social and Health Services, 85 Wn. App. 71, 930 P.2d 958 (1997), in which we held that another statute, RCW 26.44.050, imposes on the State a mandatory duty to investigate reports of child abuse. Employing language somewhat similar to that contained in RCW 18.130.080, RCW 26.44.050 provides that, "[u]pon the receipt of a report concerning the possible occurrence of abuse or neglect, the law enforcement agency . . . must investigate." (Emphasis added.)
However, in Yonker we did not hold that such language, mandating investigation of child abuse, constituted a mandate to take specific corrective action sufficient to give rise to a duty of care pursuant to the failure to enforce exception. Our holding in that case was based on the legislative intent exception to the public duty doctrine, not on the failure to enforce exception. Accordingly, therein, we specifically relied on the legislature's express intent to protect a specific class of individuals: victims of child abuse. Yonker, 85 Wn. App. at 78-79. As herein discussed, there is no similar legislative intent evidenced by the statutes here at issue. Thus, the plaintiffs' reliance on Yonker is unavailing.

Neither do any of the other statutes cited by the plaintiffs.

See RCW 18.71.002 (purpose of MQAC is to "regulate the competency and quality of professional health care providers"); RCW 18.71.350 (requires insurers to report payments for physician malpractice to MQAC); RCW 18.130.010 (purpose of act is to "consolidate disciplinary and licensure procedures").

The State does not owe the plaintiffs a duty of care pursuant to the failure to enforce exception to the public duty doctrine.

In 2006, our legislature amended RCW 18.130.050 to provide, in relevant part, that "a disciplining authority shall issue a summary suspension of the license or temporary practice permit of a license holder prohibited from practicing a health care profession in another state, federal, or foreign jurisdiction because of an act of unprofessional conduct that is substantially equivalent to an act of unprofessional conduct prohibited by this chapter. . . ." (Emphasis added.) Laws of 2006, ch. 99, § 4. This amendment was promulgated after the events that gave rise to the present lawsuit and, thus, is not relevant to our holding. We express no opinion as to whether the amended provision may be relied upon to find the existence of a duty of care in future cases.

Affirmed.


Summaries of

Rollins v. State

The Court of Appeals of Washington, Division One
Aug 13, 2007
140 Wn. App. 1008 (Wash. Ct. App. 2007)
Case details for

Rollins v. State

Case Details

Full title:DALEENA ROLLINS ET AL., Appellants, v. THE STATE OF WASHINGTON ET AL.…

Court:The Court of Appeals of Washington, Division One

Date published: Aug 13, 2007

Citations

140 Wn. App. 1008 (Wash. Ct. App. 2007)
140 Wash. App. 1008