Opinion
No. 60291-8-I.
January 7, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-2-13247-5, Andrea A. Darvis, J., entered November 2, 2006.
Affirmed by unpublished opinion per Ellington, J., concurred in by Schindler, A.C.J., and Agid, J.
Dr. Charles Momah, an obstetrician/gynecologist, was convicted in 2005 of two counts of rape and two counts of indecent liberties involving his patients, including Shellie Siewert. Siewert brought this damages action against the State of Washington, the Department of Health, the Health Professions Quality Assurance Commission, and the Washington State Medical Quality Assurance Commission (MQAC). We agree with the trial court that the public duty doctrine bars Siewert's action.
BACKGROUND
In 1993, the State of Washington licensed Dr. Charles Momah to practice medicine. Between 1997 and 2000, MQAC received information raising concerns about Momah's practices in Washington and New York. MQAC opened an investigation on each of the reports it received, but eventually closed the investigations without taking disciplinary action.
In one instance of alleged improper billing practices, the doctor was acquitted. In another case, the complainants refused to assist the investigation and the file was closed. A third case concerning alleged medical negligence was closed with a finding of no cause.
From 2000 to 2003, MQAC investigated numerous complaints about Momah. Among these was a report that Momah had touched a patient inappropriately and failed to have a female staff person in the room during a gynecological exam. A medical consultant retained by the State reported in April 2002 that Momah had violated the standard of medical care relating to five patients. In June 2003, MQAC issued a statement of charges against Momah, charging him with several acts of unprofessional conduct, including misrepresenting facts on his licensing application, misdiagnosing and incorrectly treating patients, performing unnecessary surgeries and other procedures, and failing to employ qualified staff.
MQAC amended the statement of charges several times to reflect later-reported complaints, including reports of sexual misconduct.
In August 2003, one of Momah's patients reported sexual misconduct. MQAC summarily suspended Momah's medical license. Soon thereafter, Siewert, who had been Momah's patient from October 2002 to February 2003, also reported that Momah sexually assaulted her approximately a year earlier, in October 2002.
In November 2005, Momah was convicted of raping two patients while conducting gynecological examinations and committing indecent liberties against two others, one of whom was Siewert.
In April 2006, Siewert filed this action for damages, alleging negligence on the part of three state agencies: the Department of Health, the Health Professions Quality Assurance Commission, and MQAC.
The State moved for summary judgment, contending that both the public duty doctrine and the statute of limitations barred the action, and that the agencies are immune from suit. The trial court ruled the State owed no duty of care to Siewert under the public duty doctrine and granted the State's motion. This appeal followed.
DISCUSSION
We apply the usual standard of review on summary judgment. The threshold determination in a negligence action is whether a duty of care is owed by the defendant to the plaintiff. Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 784-85, 30 P.3d 1261 (2001). This determination is a question of law, which is reviewed de novo. Donohoe v. State, 135 Wn. App. 824, 833-34, 142 P.3d 654 (2006) (citing Id.).
When reviewing a trial court's decision to grant summary judgment, we engage in the same inquiry as the trial court. Halleran v. Nu West, Inc., 123 Wn. App. 701, 709, 98 P.3d 52 (2004). We affirm a ruling granting summary judgment when 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, 123 Wn. App. at 709-10.
The government may be held liable in tort only if it breaches a duty owed to a particular individual, rather than a duty owed to the general public. Osborn v. Mason County, 157 Wn.2d 18, 27, 134 P.3d 197 (2006). This rule is known as the public duty doctrine. Washington courts have recognized four exceptions to the doctrine: the legislative intent exception, the failure to enforce exception, the special relationship exception, and the rescue doctrine. Bailey v. Forks, 108 Wn.2d 262, 268, 737 P.2d 1257 (1987).
Siewert first asks us to abandon the public duty doctrine altogether. She contends it conflicts with the State's waiver of sovereign immunity and is confusing, unnecessary, and duplicative. But despite numerous opportunities to abolish the doctrine, the Washington Supreme Court has affirmed its continued vitality by applying the doctrine and its exceptions in several recent cases. See Harvey v. Snohomish County, 157 Wn.2d 33, 134 P.3d 216 (2006); Osborn v. Mason County, 157 Wn.2d 18, 134 P.3d 197 (2006); Cummins v. Lewis County, 156 Wn.2d 844, 861-71, 133 P.3d 458 (2006); Aba Sheikh v. Choe, 156 Wn.2d 441, 128 P.3d 574 (2006). We are not free to disregard this precedent. Halleran, 123 Wn. App. at 717.
Siewert next asks us to adopt a new exception to the doctrine, as Rhode Island has done, where the government engages in egregious misconduct. In Verity v. Danti, 585 A.2d 65, 67 (R.I. 1991), city officials knew that a tree for which they were responsible completely blocked a sidewalk and forced pedestrians to step onto a busy highway to pass by. A child was injured when she stepped onto the highway to get past the tree. The Rhode Island Supreme Court recognized a new "egregious conduct" exception, holding that "when the state has knowledge that it has created a circumstance that forces an individual into a position of peril and subsequently chooses not to remedy the situation, the public duty doctrine does not shield the state from liability." Id. No other jurisdiction has embraced the egregious conduct exception.
Siewert failed to raise this argument below, and we ordinarily do not consider new arguments made for the first time on appeal. RAP 9.12. Even if the issue were properly before us and we agreed with Rhode Island as to the underlying policy, the exception would not assist Siewert. Verity involved a peril created by the government. Every pedestrian passing the tree was placed in mortal jeopardy. Officials could, with or without reason, remove the tree. Here, the State licensed Momah, but it did not have control over his daily activities. Its ability to affect his conduct was limited by statute and by due process. RCW 18.130.050; Nguyen v. State, Dep't of Health, 144 Wn.2d 516, 523, 29 P.3d 689 (2001). The State was not responsible for Momah in the same way the Rhode Island authorities were responsible for the tree. The egregious conduct exception would offer Siewert no refuge.
Failing defeat or further limitation of the public duty doctrine, Siewert argues her case falls within each of the four recognized exceptions. We disagree.
Legislative Intent Exception
"[W]here a regulatory statute by its terms evidences a clear legislative intent to identify and protect a particular and circumscribed class of persons," the traditional public duty rule of nonliability does not apply. Hon coop v. State, 111 Wn.2d 182, 188, 759 P.2d 1188 (1988). Where a statute expresses such an intent, a member of the protected class may bring a tort action against the government for its violation of the statute. Id. The legislative intent must be clearly expressed, not implied. Ra venscroft v. Washington Water Power Co., 136 Wn.2d 911, 930, 969 P.2d 75 (1998).
The statutes establishing MQAC and delineating its powers express an intent to protect the people of the state in general, not a particular and circumscribed class of persons. Chapter 18.71 RCW provides that the purpose of MQAC is to benefit the residents of the state as a whole. To that end, MQAC is to adopt rules, policies, and procedures that promote the delivery of quality health care to the "residents of the state." RCW 18.71.002. Similarly, the statutes regulating and disciplining physicians were enacted to promote the general welfare of the citizens of the state, to protect the public health, and to "assure the public of the adequacy of professional competence and conduct in the healing arts."
RCW 18.71.002 provides as follows:
It is the purpose of the medical quality assurance commission to regulate the competency and quality of professional health care providers under its jurisdiction by establishing, monitoring, and enforcing qualifications for licensing, consistent standards of practice, continuing competency mechanisms, and discipline. 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 18.71.003 states:
This chapter is passed:
(1) In the exercise of the police power of the state to protect public health, to promote the welfare of the state, and to provide an adequate public agency to act as a disciplinary body for the members of the medical profession licensed to practice medicine and surgery in this 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; and
(4) Because the agency which now exists to handle disciplinary proceedings for members of the medical profession licensed to practice medicine and surgery in this state is ineffective and very infrequently employed, and consequently there is no effective means of handling such disciplinary proceedings when they are necessary for the protection of the public health.
RCW 18.130.010 provides:
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.
It is also the intent of the legislature that all health and health-related professions newly credentialed by the state come under the Uniform Disciplinary Act.
Further, the legislature declares that the addition of public members on all health care commissions and boards can give both the state and the public, which it has a statutory responsibility to protect, assurances of accountability and confidence in the various practices of health care.
Despite this broad statutory language, Siewert contends chapter 18.130 RCW was intended to protect clients of a specific health care practitioner who engages in misconduct. For this proposition, she relies upon American Home Assurance Co. v. Cohen, 124 Wn.2d 865, 881 P.2d 1001 (1994). But that case did not concern the State's liability for a physician's professional misconduct or the legislative intent exception to the public duty doctrine. It has no bearing here.
The case holds that it is against public policy for an insurance contract to provide less coverage when a psychologist's nonsexual misconduct occurs in conjunction with sexual misconduct than when only nonsexual misconduct has occurred. American Home Assurance, 124 Wn.2d at 881.
The relevant statutes contain no expression of legislative intent to protect a particular and circumscribed class. The State owed Siewert no duty under the legislative intent exception.
Failure to Enforce Exception
A duty owed to the general public can also be owed to an individual where (1) government agents responsible for enforcing statutory requirements have actual knowledge of a statutory violation; (2) they fail to take corrective action; (3) they have a statutory duty to do so; and (4) the plaintiff is within the class the statute intended to protect. Halleran v. Nu West, Inc., 123 Wn. App. 701, 714, 98 P.3d 52 (2004). This "failure to enforce" exception is narrowly construed. Ath erton Condo Ass'n v. Blume Dev. Co., 115 Wn.2d 506, 531, 799 P.2d 250 (1990). It does not apply unless the relevant statute "mandates a specific action to correct a violation." Halleran, 123 Wn. App. at 714. Such a mandate does not exist if the government has broad discretion regarding whether and how to act. Id.
Again, the exception does not apply. RCW 18.130.080 compels an investigation when MQAC has reason to believe that a physician has engaged in unprofessional conduct, but it does not impose upon MQAC a mandatory duty to take specific corrective action upon a finding of unprofessional conduct. Siewert does not contend MQAC failed to investigate, and the statutes confer broad discretion regarding whether and how to act, including whether to impose "any sanction against a license applicant or license holder provided by this chapter." RCW 18.130.050(13).
RCW 18.130.080 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 18.130.160 provides that: "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. . . ." The sanctions to be considered include revocation or suspension of the license and a variety of lesser sanctions.
Special Relationship Exception
"One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm." Restatement (Second) of Torts § 319 (1965). In Taggart v. State, 118 Wn.2d 195, 219-20, 822 P.2d 243 (1992), this type of take-charge relationship existed between the State and parolees because the State has authority to regulate their movements, require them to report, and impose special conditions on their behavior. In Honcoop v. State, 111 Wn.2d 182, 193, 759 P.2d 1188 (1988), there was no take-charge relationship between the State and a cattle dealer because the State had only regulatory authority over him, and therefore had no duty to protect other dairy farmers from the dealer's violation of infectious disease regulations. Siewert acknowledges that "[r]egulatory control over a third party is not sufficient to establish the necessary control which can give rise to an actionable duty." See Honcoop, 111 Wn.2d at 193; see also Stenger, 104 Wn. App. at 400; Donohoe v. State, 135 Wn. App. 824, 142 P.3d 654 (2006) (State not liable for injuries of patient at private nursing home regulated and licensed by the State). But she contends the State had a duty to protect Momah's patients because it had effectively taken control over him by opening several investigations into his conduct.
We disagree. The State's authority over Momah was limited to licensing and professional discipline. Unlike the State's relationship with parolees, its regulatory oversight authority over Momah did not allow the State to control his conduct. The relationship between the State and Momah is therefore "too tenuous and unsubstantial" to impose upon it the duty to protect the public from Momah's conduct. Honcoop, 111 Wn.2d at 193.
Siewert relies upon Orr v. Montana, 324 Mont. 391, 106 P.3d 100 (2004), where Montana miners were held to have a special relationship with the State. Every year for over 20 years, the state industrial hygiene agency had inspected a mine. The agency knew of and failed to report dangerous asbestos exposure, and the miners relied on the absence of negative reports to continue working in the mine. Orr, 106 P.3d at 110-11.
There are two problems with Siewert's reliance on Orr. First, she acknowledges she did not know of or rely upon the State's investigations when she became Momah's patient. See Clerk's Papers at 219-20 (Siewert declaration); Opening Brief at 7. Further, she argues that the State's inaction in the face of numerous complaints " impliedly assured Momah's patients that his conduct complied not only with the criminal statutes but also the standards of professional conduct stated in the Act." Opening Brief at 32 (emphasis added). Washington law is clear that a "governmental duty cannot arise from implied assurances." Honcoop, 111 Wn.2d at 192.
The special relationship exception does not apply.
Volunteer Rescue Exception
Under the rescue doctrine, one who voluntarily undertakes to aid or warn a person in danger must exercise reasonable care in so doing. Brown v. MacPherson's Inc., 86 Wn.2d 293, 299, 545 P.2d 13 (1975). If the rescuer fails to exercise reasonable care and thereby increases the risk of harm, she is liable for damages. Id. If the rescuer represents that she will aid or warn the person in danger, and that representation is relied upon, the rescuer may be liable. Osborn, 157 Wn.2d at 25, 28. Reasonable reliance either by the person in danger or by a third party who refrains from acting due to the representation is sufficient for the rescuer to be liable. Id.; Brown, 86 Wn.2d at 301. "Reliance is the linchpin of the rescue doctrine." Osborn, 157 Wn.2d at 25.
Siewert fails to establish any of these elements. There is no evidence that the State acted to aid or warn her. She attempts to characterize an e-mail from an MQAC investigator to Momah's attorney as an attempt to protect Momah's patients, but the communication asks only whether Momah had "consider[ed] not performing procedures until he is certified." Clerk's Papers at 783. This does not represent an offer to aid or warn Momah's patients, and in any event Siewert does not argue that she relied upon this or any other communication.
CONCLUSION
The public duty doctrine bars Siewert's claim. We therefore do not reach the State's arguments regarding the statute of limitations and quasi-judicial or prosecutorial immunity.
Affirmed.