Berry v. Nat'l Med. Serv. Inc.

• Decision Date: 12 August 2011
• Docket Number: No. 99,953.,99,953.
• Citation: 257 P.3d 287,32 IER Cases 1352
• Parties: Judith BERRY, Appellant,v.NATIONAL MEDICAL SERVICES, INC., d/b/a NMS Labs; and Compass Vision, Inc., Appellees.
• Court: Kansas Supreme Court

257 P.3d 287

161 Lab.Cas. P 61,175

32 IER Cases 1352

Judith BERRY, Appellant,

v.NATIONAL MEDICAL SERVICES, INC., d/b/a NMS Labs; and Compass Vision, Inc., Appellees.

No. 99,953.

Supreme Court of Kansas.

Aug. 12, 2011.

Syllabus by the Court

1. The existence of a legal duty is a question of law over which this court exercises unlimited review. To find a legal duty to

support a negligence claim, (1) the plaintiff must be a foreseeable plaintiff and (2) the probability of harm must be foreseeable.

2. A test subject is a foreseeable plaintiff in an action for negligence against a laboratory testing company. The probability that inaccurate test results will cause harm to the test subject is foreseeable.

3. There is a duty to report test results that are qualitatively and quantitatively accurate. A laboratory testing facility owes a duty to those whose specimens it tests to accurately report results and not to mischaracterize or misinterpret those results.

4. There is no public policy to extend protection to a tortfeasor simply because the tortfeasor contracts with a government agency.

Jason M. Hans, of Rouse Hendricks German May PC, of Kansas City, Missouri, argued the cause and was on the briefs for appellant.William M. Modrcin, of Stinson Morrison Hecker LLP, of Kansas City, Missouri, argued the cause and was on the briefs for appellee Compass Vision, Inc.Matthew M. Merrill, of Brown & Ruprect PC, of Kansas City, Missouri, argued the cause and was on the briefs for appellee National Medical Services, Inc., d/b/a NMS Labs.

The opinion of the court was delivered by ROSEN, J.:

Judith Berry brought negligence and consumer protection claims against National Medical Services, Inc. (NMS) and Compass Vision, Inc. (Compass) based on urinalysis tests conducted as part of Berry's participation in the Kansas Nurses Assistance Program (KNAP). The district court dismissed Berry's petition with prejudice for failure to state a claim upon which relief may be granted. The majority of the Court of Appeals panel reversed the dismissal of the negligence claim. This court granted NMS's petition for review because the issue presented is one of first impression and likely to recur.

Factual Background

When reviewing a motion to dismiss for failure to state a claim upon which relief can be granted, this court must accept the facts alleged by the plaintiff as true, along with any inferences that can reasonably drawn from the facts alleged in the petition. Using those facts and inferences, we then decide whether the plaintiff has stated a claim upon which relief can be granted. Because Kansas is a notice-pleading state, the petition is not intended to govern the entire course of the case. Rector v. Tatham, 287 Kan. 230, 232, 196 P.3d 364 (2008). Berry asserts the following, which we accept as true for our analysis.

Berry was a registered nurse licensed by the Kansas State Board of Nursing (Board). In August 2003, after admitting to alcohol dependency, Berry agreed to participate in the Board's assistance program, KNAP, which includes submitting to future random testing. Berry claims that during her participation in the program she maintained her recovery and sobriety, did not relapse, and did not intentionally drink any alcoholic beverages.

The Board contracted with Compass to serve as the third-party administrator of KNAP's alcohol testing program. Compass contracted with NMS to provide alcohol testing for nurses in KNAP.

Compass and NMS (collectively Defendants) were leading proponents of ethyl glucuronide (EtG) testing. EtG is a metabolite of alcohol. The presence of EtG in urine reportedly provides proof of prior alcohol consumption, even after the alcohol itself has been eliminated from the body. Defendants established a reporting limit of 250 ng/mL, at or over which EtG test results would be reported as “positive” for drinking alcohol. Defendants claimed that any EtG test result of 500 ng/mL and above conclusively proved intentional consumption of an alcoholic beverage.

As early as March 2004, published scientific literature suggested that many ordinary products, including Purell sanitizer and other hand sanitizers used in hospitals throughout the country, contained ethanol that would metabolize as EtG, and incidental exposure to these products could show up at levels well above the 250 ng/mL cutoff. In September 2006, the Substance Abuse and Mental Health Services Administration (SAMHSA), a federal agency that is part of the United States Department of Health and Human Resources, issued an advisory stating that EtG testing could be a valuable clinical tool, but it should not be used as the primary or sole evidence that an individual prohibited from drinking, in a criminal justice or a regulatory compliance context, has truly been drinking.

In January 2005, Compass collected from Berry a random observed urine sample and NMS performed an EtG test. Berry received notice of a positive result of 2200 ng/mL on the EtG test, in violation of her KNAP agreement. As a result, Berry was suspended for 2 months.

In June 2005, Berry again submitted a random observed urine sample collected by Compass and tested by NMS. Berry received notice of a positive result of 290 ng/mL on the EtG test, in violation of her KNAP agreement. Unable to work as a nurse and faced with mandatory inpatient treatment and suspension from work based on the June test, Berry refused to continue in KNAP because of the unfairness of the EtG testing. In August 2005, Berry's nursing license was revoked.

On January 16, 2007, Berry filed a petition in district court seeking damages for negligence and violation of consumer protection laws. On August 29, 2007, Berry filed an amended petition which is the basis for this case.

Berry claims Defendants were negligent in a number of respects, including designing, implementing, promoting, and managing their EtG testing protocol. Specifically, Berry alleges the Defendants acted negligently in establishing arbitrary and scientifically unreliable cutoffs over which test results were reported as positive and in failing to reevaluate cutoff limits to allow for incidental or involuntary exposure or consumption of products containing alcohol. Further, Berry claims Defendants knew that because she was a participant in KNAP, her nursing license would be in jeopardy if she tested positive.

The district court, without analysis or explanation, dismissed Berry's petition with prejudice for failure to state a claim upon which relief may be granted. The Court of Appeals reversed on the negligence claim, finding that Berry was a foreseeable plaintiff, that the probability of harm was foreseeable, and that there was no public policy against imposing a duty on Defendants. Berry v. National Medical Services, Inc., 41 Kan.App.2d 612, 205 P.3d 745 (2009). The Court of Appeals affirmed dismissal of Berry's consumer protection claim. That issue was not presented for review by this court.

Analysis

The existence of a legal duty is a question of law over which this court exercises unlimited review. Glassman v. Costello, 267 Kan. 509, 521, 986 P.2d 1050 (1999). To find a legal duty to support a negligence claim, (1) the plaintiff must be a foreseeable plaintiff and (2) the probability of harm must be foreseeable. OMI Holdings, Inc. v. Howell, 260 Kan. 305, 338, 918 P.2d 1274 (1996); Durflinger v. Artiles, 234 Kan. 484, 489, 673 P.2d 86 (1983), disapproved on other grounds Boulanger v. Pol, 258 Kan. 289, 900 P.2d 823 (1995).

Foreseeability

A foreseeable plaintiff is one that is “within the range of apprehension.” Durflinger, 234 Kan. at 489, 673 P.2d 86. As the court described in Durflinger:

“An act is wrongful, or negligent, only if the eye of vigilance, sometimes referred to as the prudent person, perceives the risk of damage. The risk to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), 59 A.L.R. 1253. The existence of negligence in each case must depend upon the particular circumstances which surrounded the parties at the time and place of the occurrence on which the controversy is based.” Durflinger, 234 Kan. at 489, 673 P.2d 86 (citing Blackmore v. Auer, 187 Kan. 434, 441, 357 P.2d 765 [1960] ).

Berry easily satisfies the test for a foreseeable plaintiff. Berry submitted to random urinalyses collected by Compass and tested by NMS. Berry was not a bystander, but the direct and immediate object of the Defendants' testing services. The great majority of other states addressing this issue have found that a test subject is a foreseeable plaintiff in an action in negligence against a laboratory under such circumstances. See, e.g., Quisenberry v. Compass Vision, Inc., 618 F.Supp.2d 1223, 1228 (S.D.Cal.2007) (noting that Iowa, Illinois, Louisiana, Connecticut, New York, and Wyoming have found that a laboratory owes a duty to the...