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State ex rel. The Montana Board of Medical Examiners v. Montana Second Judicial District Court

Supreme Court of Montana

November 13, 2019

STATE OF MONTANA ex rel. THE MONTANA BOARD OF MEDICAL EXAMINERS, Petitioner,
v.
MONTANA SECOND JUDICIAL DISTRICT COURT, Butte-Silver Bow County, THE HONORABLE KURT KRUEGER, Presiding Judgej Respondent.

          ORDER

         The State of Montana, by and through the Montana Board of Medical Examiners (Board), petitions this Court for a writ of supervisory control following an order of the Second Judicial District Court, Butte-Silver Bow County, in Ciara Smart Paddock v. Bennett Braun, MD, DV-16-414, denying the Board's motion to dismiss for failure to state a claim upon which relief can be granted under M. R. Civ. P. 12(b)(6). Since the District Court accepts as true the complaint's factual allegations when evaluating a motion to dismiss under M. R. Civ. P. 12(b)(6), we do so here, deeming the allegations from Paddock's Second Amended Complaint true for the purposes of this Order. Woods v. Shannon, 2015 MT 76, ¶ 9, 378 Mont. 365, 344 P.3d 413.

         Bennett G. Braun, M.D., is a psychiatrist whom the Board licensed to practice in Montana. While treating Paddock, he prescribed her antipsychotic drugs which caused her to develop a movement disorder. Dr. Braun did not take any action when Paddock first began to show signs of developing a movement disorder, and it became permanent. Dr. Braun did not advise Paddock of the risks of taking these drugs. Thus, she did not give informed consent and was not adequately warned of the risks.

         Paddock alleged the torts of negligence, private nuisance, and public nuisance against the Board. Pertinent to the controversy before this Court, she alleged the Board had a duty to protect her against Dr. Braun, and that the Board failed to deny or terminate Dr. Braun's license, but instead continued to license him to practice in Montana.

         The Board moved to dismiss Paddock's claims under Rule 12(b)(6), arguing that the claims failed under the public duty doctrine and because the Board had quasi-judicial immunity. Paddock opposed the Board's position. After hearing oral argument, the District Court denied the Board's motion to dismiss, ruling that Paddock made factual allegations in the Second Amended Complaint which rendered her claims sufficient to survive a Rule 12(b)(6) motion.

         The Board now petitions this Court to exercise supervisory control over the District Court, conclude either that this suit is prohibited under the public duty doctrine or that the Board is protected by quasi-judicial immunity, and dismiss Paddock's claims against the Board. Paddock responds that the District Court's order denying dismissal should stand.

         In its petition before this Court, the Board argues that supervisory control is appropriate in this case because it will otherwise be forced to defend a suit where liability cannot be established as a matter of law. The Board argues the District Court erred in denying its motion to dismiss Paddock's negligence claim against it because any recovery is precluded by the public duty doctrine. It relies on Nelson v. State, 2008 MT 336, 346 Mont. 206, 195 P.3d 293, which it argues is directly on point and controls the outcome here. Regarding Paddock's nuisance claims, the Board maintains that the public duty doctrine is inapplicable and that it is entitled to quasi-judicial immunity because it was performing a discretionary function. The Board relies on Koppen v. Board of Medical Examiners, 233 Mont. 214, 759 P.2d 173 (1988), in which this Court held that the Board was entitled to quasi-judicial immunity regarding action, or inaction, taken to revoke or suspend a license to practice medicine.

         Paddock maintains that the Board can avail itself of the ordinary appeal process, because it can move for summary judgment after discovery is complete and then seek certification under M. R. Civ. P. 54(b)(1) if it does not obtain summary judgment in its favor. Paddock argues that she can establish a special relationship which gives rise to a special duty because: (1) the licensing statutes are intended to protect a specific class of persons from a particular type of harm, and (2) that the Board's actions in licensing Braun and, thereafter, failing to revoke his license, reasonably induced her detrimental reliance and created a special relationship. See Nelson v. Driscoll, 1999 MT 193, ¶ 22, 295 Mont. 363, 983 P.2d 972. Paddock also argues that the public duty doctrine only shields governments from liability in negligence claims and that it does not apply to a government's action in creating a nuisance.

         We decline to accept the Board's invitation to take supervisory control over the district court proceedings. This Court has supervisory control over Montana courts. Mont. Const, art. VII, § 2(2); Ford Motor Co. v. Montana Eighth Judicial Dist. Ct., 2019 MT 115, ¶ 5, 395 Mont. 478, 443 P.3d 407. Pursuant to M. R. App. P. 14(3)(a), supervisory control is an extraordinary remedy and is sometimes justified when urgency or emergency factors exist making the normal appeal process inadequate, when the case involves purely legal questions, and when the other court is proceeding under a mistake of law and is causing a gross injustice. Consistent with Rule 14(3), it is the Court's practice to refrain from exercising supervisory control when the petitioner has an adequate remedy of appeal. E.g., Buckles v. Seventh Jud. Dist. Ct., No. OP 16-0517, 386 Mont. 393, 386P.3d 545 (table) (Oct. 18, 2016); Lichte v. Mont. Eighteenth Judicial Dist. Court, No. OP 16-0482, 385 Mont. 540, 382 P.3d 868 (table) (Aug. 24, 2016). We deem it appropriate that these proceedings continue in the trial court to allow for an adequate record to be developed and for the relevant issues to be argued and decided by the District Court in the first instance.

         IT IS THEREFORE ORDERED the Board's Petition for Writ of Supervisory Control is DENIED.

         The Clerk is directed to forward a copy of this Order to all counsel of record in the Second Judicial District Court, Butte-Silver Bow County Cause No. DV-16-414, and to the Honorable Kurt Krueger, presiding District Judge.

          Justice Laurie McKinnon dissents.

         I would accept supervisory control and affirm the District Court.

         In Nelson v. State, the Court addressed the same issues raised here: quasi-judicial immunity and the public duty doctrine. Regarding quasi-judicial immunity, the Court concluded that § 37-3-321, MCA (1997), which is indistinguishable from the statute applicable here-§ 37-3-321, MCA (2003)-required the Board to refrain from authorizing issuance of a license to a physician who has committed "unprofessional conduct." We explained in Nelson that "[w]here the administrative function is mandated by statute and, thus, purely ministerial in nature, the administrative entity is not acting in a quasi-judicial manner and is not entitled to quasi-judicial immunity." Nelson, ¶ 17 (see State ex rel. Div. of Workers' Comp. v. District Court, 246 Mont. 225, 232-33, 805 P.2d 1272, 1277 (1990); Newville v. Dep't of Family Servs., 267 Mont. 237, 268-69, 883 P.2d 793, 812 (1994)). The same statute considered in Nelson is being invoked by the parties here and, as in Nelson, the statute does not provide a basis for quasi-judicial immunity because the Board was performing a ministerial function mandated by statute. Regardless of whether the Board did or did not follow the statutory mandate, the statute remained ministerial in nature. To conclude otherwise would protect the Board when it did not follow the statutory mandate to refrain from authorizing issuance of a license and, conversely, when it did follow the statute the Board would not have quasi-judicial immunity. Indeed, the Board's decision to authorize or not authorize issuance of Braun's license has no effect on the ministerial function of the statute.

         We held in Nelson that § 37-3-321, MCA, imposed a mandatory, nondiscretionary duty on the Board which could not provide a basis for quasi-judicial immunity. Nelson, ¶ 22. Here, I would apply Nelson and similarly conclude that the Board is not entitled to quasi-judicial immunity on either Paddock's negligence or nuisance claims. Furthermore, had the Board asserted its quasi-judicial immunity defense because a case or controversy arose following the Board's actions, which were taken pursuant to § 37-3-321, MCA, then these proceedings would be in a different posture. However, the Board has not properly invoked quasi-judicial immunity because it has asserted nothing that functions outside of § 37-3-321, MCA; that is, the Board, in raising quasi-judicial immunity has not asserted its actions were undertaken in the context of a controversy or adversarial proceeding. I dissent from the Court's failure to recognize this; from the Court's failure to articulate why the District Court got to the right result notwithstanding its failure to set forth a correct legal analysis; and from the Court's unwillingness to address the significant issues raised in these proceedings. I would exercise supervisory control, conclude that the Board has not demonstrated it is entitled to quasi-judicial immunity, and affirm the District Court's denial of the Board's motion to dismiss.

         Having decided that the Board is not entitled to quasi-judicial immunity on both Paddock's negligence and nuisance claims, I would turn to the issue of whether the Board may invoke the public duty doctrine to protect it from liability on its negligence and nuisance claims. The public duty doctrine addresses the element of duty in claims of negligence. As such, it is relevant to Paddock's claim that the Board acted negligently in authorizing the issuance of Braun's license. It is also relevant to a determination of Paddock's nuisance claims because this Court has held that a plaintiff may prevail on a nuisance claim against an entity acting under the express authority of a statute by proving negligence. Barnes v. City of Thompson Falls, 1999 MT 77, ¶ 10, 294 Mont. 76, 979 P.2d 1275. The Board therefore asserts that Paddock must prove negligence as the first element of a nuisance claim since issuing a medical license is a statutorily-authorized act pursuant to § 37-3-312, MCA. Next, as the first element of a negligence claim is duty, the Board maintains that the public duty doctrine applies to foreclose its liability.

         Paddock asserts an exception to the public duty doctrine. She maintains a special relationship was created through her reasonably induced detrimental reliance on the Board's authorizing issuance of Braun's license. In Nelson, we concluded that the public duty doctrine protected the Board from liability because the purpose of the licensing statutes imposed a general duty to protect the public from the unprofessional practice of medicine. See Nelson, ¶ 50. The Court reasoned that because the licensing statutes created a duty owed to the public at large, the duty was owed to no one. See Nelson, ¶ 47. Importantly, at issue in Nelson was the exception to the public duty doctrine created by statute when the legislature creates a statutory class of persons to whom a specific duty is owed. The Court in Nelson did not address Paddock's further argument made here that she was reasonably induced to detrimentally rely on Braun's license after the Board's action in authorizing its issuance. Pursuant to our law, the existence of a special relationship gives rise to a special duty and is an exception to the public duty doctrine. Accordingly, a duty is owed by the Board to Paddock if a special relationship exists based on Paddock's reasonably induced detrimental reliance on the Board's actions in authorizing issuance of a license to Braun. Such a special relationship would impose a duty distinguishable from a general duty owed to all. In my opinion, the Court errs in failing to recognize that, as a matter of law, a special duty is created "by governmental actions that reasonably induce detrimental reliance by a member of the public . . . ." Nelson v. Driscoll, ¶ 22 (citation omitted).

         A special relationship created by reasonably induced detrimental reliance on a license is closely intertwined with the creation of a special relationship through enactment of a licensing statute intended to protect a specific class of persons from a particular type of harm. Regarding this alternative basis for establishing a duty owed by the Board to Paddock, I would revisit our decision in Nelson v. State. Nelson expanded the public duty doctrine beyond its fundamental purpose of providing police and fire protection to the public. Arguably, as Justice Leaphart maintained in his dissent, the licensing statutes "create[] a special class of persons to whom the duty is owed. . . . [T]his class consists of the doctor's patients who, by seeking care for their health needs from a licensed physician, are potential victims of unprofessional, improper, unauthorized, or unqualified practice of medicine." Nelson, ¶ 59 (Leaphart, J., dissenting). The Board will not become liable for every act of negligence committed by licensed physicians because, as Justice Leaphart reasoned, the State's duty is "preliminary" and "occurs before a doctor ever has an opportunity to interact with a patient." The duty is to license only qualified doctors. Nelson, ¶ 60, (Leaphart, J., dissenting).

         While I do not question the constitutionality of the public duty doctrine because it is premised on the definition of duty and not on principles of sovereign immunity, I cannot subscribe to an unwarranted expansion of the doctrine nor a distortion of the element of duty. Excepting Nelson, this Court's analysis of the public-duty doctrine has remained focused on law enforcement's general duty to protect and preserve the peace. The public duty doctrine is rooted in the government's provision of law enforcement services and law enforcement's general duty to protect and preserve the peace. Because of the often split-second decisions made by law enforcement, officers must be afforded "broad discretion to proceed without fear of civil liability in the 'unflinching discharge of their duties.'" Ashburn v. Anne Arundel Cty., 510 A.2d 1078, 1084 (Md. 1986) (quoting Morgan v. District of Columbia, 468 A.2d 1306, 1311 (D.C. 1983) (internal citations omitted)). The doctrine "expresses the policy that a police officer's duty to protect and preserve the peace is owed to the public at large and not to individual members of the public." Nelson v. Driscoll, ¶ 21; accord Gatlin-Johnson v. City of Miles City, 2012 MT 302, ¶ 14, 367 Mont. 414, 291 P.3d 1129; Massee v. Thompson, 2004 MT 121, ¶ 41, 321 Mont. 210, 90 P.3d 394. See also Kent v. City of Columbia Falls, 2015 MT 139, ¶23, 379 Mont. 190, 350 P.3d 9 (quoting Gonzales v. City of Bozeman, 2009 MT 277, ¶¶ 20, 23, 352 Mont. 145, 217 P.3d 487) (reiterating that an officer's "duty to protect and preserve the peace is owed to the public at large and not to individual members of the public" and therefore the public-duty doctrine provides that an officer has "no duty to protect a particular person absent a special relationship").

         It is important to distinguish the general duty to protect and preserve the public peace from other duties, in order to avoid unwarranted expansion of the public duty doctrine. In 1856, the United States Supreme Court first recognized the public duty doctrine in South v. Maryland, 59 U.S. 396, 401 (1856), where a plaintiff, kidnapped and held for ransom, contended that the sheriff knew about the incident but neglected to "protect and defend" him. The Court noted the plaintiff did not allege the sheriff breached a duty in which the sheriff was personally interested, such as execution of a writ, but instead the plaintiff alleged that the sheriff neglected to "preserve the public peace." South, 59 U.S. at 401 (emphasis added). The Court emphasized that the sheriffs alleged failure to preserve the public peace was a "public duty, for neglect of which he is amenable to the public, and punishable by indictment only." South, 59 U.S. at 403. The Court reasoned that such an interpretation was consistent with precedent, as "no instance [could] be found where a civil action [was] sustained against [a sheriff] for his default or misbehavior as conservator of the peace by those who have suffered injury to their property or persons through the violence of mobs, riots, or insurrections." South, 59 U.S. at 403 (emphasis added). The Court explained that the sheriff owed no duty to the plaintiff because the individual plaintiffs rights were not "restrained or hindered by the malicious act of the sheriff." South, 59 U.S. at 403 (emphasis added). Therefore, we apply the public-duty doctrine to cases where the plaintiff claims that an officer breached . his duty to protect and preserve the peace. Accordingly, the public duty doctrine expresses the policy that an officer's overarching duty to protect and preserve the peace is owed to the public at large, not to individual members of the public.

         Here, application of the public duty doctrine is forefront to these proceedings. This case does not involve the provision of law enforcement services, which has been historically the basis upon which we applied the doctrine. Rather than allow the parties to go through protracted litigation, a trial, and risk a reversal, I would address the application of the public duty doctrine to Paddock's claims. The parties have excellent counsel who are well-qualified to address these very significant issues for Montana citizens. If necessary, the Court could request additional briefing and allow the parties an opportunity for oral argument. Here, again, I would exercise supervisory control to consider these very significant and weighty issues on behalf of the parties and the District Court.

         To the extent the Court holds otherwise, I dissent.

          Justice Justice Dirk M. Sandefur, dissenting.

         I dissent. Supervisory control is appropriate under extraordinary circumstances where necessary in our discretion to avoid a gross injustice that will otherwise result when a lower court is acting under a mistake of law and ordinary appeal will be an inadequate remedy. M. R. App. P. 14(3). We may accordingly exercise supervisory control in our discretion where necessary to correct an erroneous and unnecessary course of litigation. See Truman v. Mont. Eleventh Judicial Dist. Court, 2003 MT 91, ¶ 15, 315 Mont. 165, 68 P.3d 654. Without adequate help from the parties, the District Court is laboring under a grave error of law which, if uncorrected immediately, will needlessly subject both parties and the court to protracted litigation, and ultimate judgment, with great waste of money, time, effort, and emotion over issues that are clearly disposable as a matter of law at the outset. Upon exercise of supervisory control, I would hold pursuant to Nelson v. State {Doris Nelson), 2008 MT 336, ¶¶ 32-50, 346 Mont. 206, 195 P.3d 293, and Barnes v. City of Thompson Falls, 1999 MT 77, 294 Mont. 76, 979 P.2d 1275, that the public duty doctrine precludes Paddock's negligence and negligence-based nuisance claims against the Board as a matter of law. I would further r hold that § 27-30-101(2), MCA, and Barnes, ¶¶ 20-21, 25-26, 28, and 31, bar Paddock's non-negligence based absolute nuisance claims as a matter of law because she can prove no set of facts showing that the Board acted wholly outside, in excess of, or without statutory authority under the facts alleged in this case.

         Secondary to her various tort claims against Dr. Braun and third-party pharmaceutical industry defendants, Paddock pled negligence, private nuisance, and public nuisance claims against the Board. In substantive essence as pertinent here, Paddock's nuisance claims do not vary from each other under § 27-30-102, MCA, in any material regard and are thus singularly referenced hereafter except as otherwise indicated.

         Public Duty Doctrine

         Under general common law tort principles, a legal duty is an essential element of every negligence claim. Krieg v. Massey, 239 Mont. 469, 472, 781 P.2d 277, 278 (1989). As a matter of law, negligence liability lies only if: (1) the tortfeasor owed a legal duty to the claimant; (2) the tortfeasor breached that duty; (3) the breach caused harm; and (4) the claimant suffered damages as a result of the harm. Krieg, 239 Mont, at 472, 781 P.2d at 278-79. "There can be no negligence in the absence of a duty." Green v. Hagele, 182 Mont. 155, 158, 595 P.2d 1159, 1161 (1979). The existence and scope of a legal duty under the circumstances pled in a particular case is a threshold question of law. Henricksen v. State, 2004 MT 20, ¶ 21, 319 Mont. 307, 84 P.3d 38.

         A legal duty may arise from constitutional, statutory, or common law. See §§ 1-1-105, -107, -108, and -109, MCA; Fisher v. Swift Transp. Co., 2008 MT 105, ¶ 16, 342 Mont. 335, 181 P.3d 601; Prindel v. Ravalli County, 2006 MT 62, ¶ 29, 1 Mont. 338');">331 Mont. 338, 133 P.3d 165. Distinct from duties arising under constitutional or statutory law is the basic common law duty of reasonable care-the duty to use objectively reasonable care under the circumstances to avoid reasonably foreseeable risks of harm to the person or property of others. Fisher, ¶ 16; Busta v. Columbus Hosp. Corp., 276 Mont. 342, 360-71, 916 P.2d 122, 133-39 (1996); Mang v. Eliasson, 153 Mont. 431, 435, 458 P.2d 777, 780 (1969); Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 99-100 (N.Y. 1928).[1] The basic common law duty of reasonable care is essentially codified in Montana. See §§ 1-1-204(4), 27-1-701, and 28-1-201, MCA (1895 Montana via California enactments of 1865 Field Code formulations of common law duty and negligence theory).

         Where not in conflict with constitutional or statutory law, the common law may impose other special, circumstance-specific duties and limitations enhancing or limiting the general duty of reasonable care. See §§ 1-1-105, -107, -108, and -109, MCA; Fisher, ¶ 16; Restatement (Third) of Torts: Liability for Phys. & Emot. Harm § 7(b) (Am. Law Inst. 2010).[2] One such limitation is the common law rule that an individual generally has no duty to protect another from harm directly caused by a third-party in the absence of a qualifying special relationship between the individual and the other or the third-party. Lopez, ¶ 24; Krieg, 239 Mont, at 472, 781 P.2d at 278; see also Green, 182 Mont, at 158, 595 P.2d at 1161 (generally no duty to anticipate tortious conduct of another). See also Restatement (Third) of Torts: Liability for Phys. & Emot. Harm § 37 (Am. Law Inst. 2012); Restatement (Second) of Torts §§ 314-15 (Am. Law Inst 1965).[3]

         The public duty doctrine is a similar common law limitation or exception to the general duty of reasonable care based on additional public policy considerations narrowly applicable only to government entities and officers. Restatement (Third) of Torts: Liability for Phys. & Emot. Harm § 37 cmt. i. See also Prindel, ¶ 26 (noting "similarity" between public duty doctrine theory and general tort law principles for special relationship liability for tortious conduct of third-party). The public duty doctrine attempts to balance public policy favoring just compensation for injuries caused by the tortious conduct of others against competing public policy concerns (1) that the judicially-determined common law not unduly interfere with discretionary public safety functions constitutionally or legislatively charged to other coordinate branches of government and (2) that the public treasury not be responsible for harm not directly caused by government entities or actors. See Restatement (Third) of Torts: Liability for Phys. & Emot. Harm § 37 cmt. i; Restatement (Third) of Torts: Liability for Phys. & Emot. Harm § 7 cmt. g. Accord Prosser v. Kennedy Enters., Inc., 2008 MT 87, ¶¶ 18-19, 342 Mont. 209, 179 P.3d 1178; Nelson v. Driscoll {Stephen Nelson), 1999 MT 193, ¶ 21, 295 Mont. 363, 983 P.2d 972; Tipton v. Town of Tabor, 567 N.W.2d 351, 357 n.8 (S.D. 1997);[4] Catone v. Medberry, 555 A.2d 328, 333 (R.I. 1989).

         Pursuant to the public duty doctrine, government entities or officers having a general duty to protect the public from a particular type of harm have no duty to protect specific individuals from that harm absent a qualifying special relationship between the government entity or officers and the specific individual or third-party tortfeasor. Kent v. City of Columbia Falls,2015 MT 139, ¶¶ 23-24, 379 Mont. 190, 350 P.3d 9; Stephen Nelson, ¶¶ 21-22. In other words, a government entity or officer generally has no duty to protect specific individuals from harm directly caused by third parties or other independent forces in the absence of special duty, arising from a qualifying special relationship, to an individual that is greater than or different from the general duty owed to the public. Kent, ¶¶ 23-24; Gatlin-Johnson v. City of Miles City,2012 MT 302, ΒΆΒΆ 14-16, ...


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