This opinion is subject to revision before final publication in the Pacific Reporter.

2 01 5 UT 1

I N T HE 

## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

——————— B.R., a minor child and C.R., a minor child,

through their conservator W ILLIAM J EFFS , Appellant s ,

v.

H UGO R ODIER , M.D., Appellee

.

———————

No. 20121098 Filed January 9 , 201 5

——————— Third District, Salt Lake The Honorable Robert Faust No. 100907025

——————— Attorneys:

Allen K . Young, Tyler S. Young, Provo, Jonah Orlofsky, Chicago

, IL, for appellant s

Vaun B. Hall

, Salt Lake City , for appellee

——————— J USTICE L EE authored the opinion of the Court

, in which C HIEF J USTICE D URRANT , J USTICE D URHAM , J USTICE P ARRISH , and J UDGE P EARCE joined

. A SSOCIATE C HIEF J USTICE N EHRING does not participate herein; C OURT OF A PPEALS J UDGE J OHN A. P EARCE sat

.

———————
J USTICE L EE , opinion of the Court : ¶1 David Ragsdale shot and killed his wife Kristy in January

, 2008. He did so while under the influence of medications pr escribed to him by Nurse Practitioner Trina West. The Ragsdales’ children, left effectively parentless after David went to prison on a guilty plea to the charge of aggrav ated murder, filed suit in tort through their conservator, William Jeffs.J EFFS v

. R ODIER Opinion of the Court

¶2 In a previous case we reversed the dismissal of the chi ldren’s tort suit agai nst Nurse West. See B.R. ex rel. Jeffs v. West

, 2012 UT 11, 275 P.3 d 228. There we held that West had a duty of reasonableness in her affirmative acts of prescribing medication to David Ragsdale, and concluded that that duty extended to third parties who m ight be injured as a foreseeable result of her negl igence. Id. ¶ 20.

¶3 In this case we review a decision dismissing the children’s claim against a physician, Dr. Hugo Rodier, who is identified as the “consulting physician” for Nurse West. Again the question is one of “duty” in tort. The plaintiffs assert that Dr. Rodier had a duty to consult directly with Nurse West as a precondition to any individual prescription of controlled substances for David Rag sdale. They cite provisions of the Utah Nurse Practice Act, U TAH C ODE §§ 58

- 31 b

- 101 to

- 802 , as the basis for such a duty. We a ffirm, finding nothing in the cited provisions of the statute to i mpose on a physician a duty to consult o n each individual prescri ption of a controlled substance.

I

¶4 Bec ause this matter was resolved on a motion to dismiss, the relevant facts are those alleged by the plaintiffs. The following factual summary is taken from the Amended Complaint, which we accept as true for purposes of our analysis.

¶5 At the time David Ragsdal e killed his wife, he was a p atient under the care of Nurse West. Nurse West had prescribed Ragsdale “ at least six medications, including Concerta, Valium, Doxepin, Paxil, pregnenolone, and testosterone. ” B.R. ex rel. Jeffs v. West , 2012 UT 11, ¶ 2, 275 P. 3d 228

. “ Plaintiffs alleged negligence in the prescription of the medica tions that caused Mr. Ragsdale’s violent outburst and his wife’ s death. ” Id . ¶ 3.

¶6 Nurse West had statutory authority to prescribe controlled substances so long a s she did so “in accord ance with a consult ation and referral plan.” U TAH C ODE § 58

- 31 b

- 102(13) (c)(iii)

. By statute, a “consultation and referral plan” is a “written plan jointly developed by an advanced practice registered nurse and a co nsulting physician that permits the advanc ed practice registe red nurse to prescribe schedule II

– III controlled substances in consu ltation with the consulting physician.” Id. § 58

- 31b

- 102(5)

.

2Cite as: 201 5 UT 1 Opinion of the Court

¶7 Plaintiffs alleged that Dr. Rodier agreed to be Nurse West’s consulting physician. But they also asserted that “no consultation plan existed” and that Nurse West had prescribed and then i ncreased dosages of various schedule II and III controlled su bstances to Ragsdale without ever consulting with Dr. Rodier

. F inally, plaintiffs alleged negligence on Dr. Rodier ’s part in not a ffirmatively reaching out to Nurse West to discuss her treatment decisions regarding Ragsdale’s care.

¶8 In the district court, plaintiffs consistent ly framed their claims against Dr. Rodier in terms of an omission

— of his failure to consult with Nurse West. Thus, as to Dr. Rodier, the Amended Complaint’s allegations of negligence concerned his “ failure . . . to consult with Trina West,” his “ failure . . . to properly monitor . . . David Ragsdale,” and such “ failures . . . [being] a direct, pr ox imate, and foreseeable cause” of Ragsdale’s violent episode. (E mphasis added).

¶9 The allegations against Nurse West were different. They were framed in terms of affirmative negligence in prescribing the medication in question. Nurse West filed a motion to dismiss, a sserting that she had no duty of care to non

- patients. See Je ffs , 2012 UT 11, ¶ 4. The di strict court agreed, but we reversed that dec ision on appeal. Id. ¶ 20. The plaintiffs subsequently entered into a voluntary set tl e ment with Nurse West, but Dr. Rodier remained in the suit. 1 Dr. Rod i er then filed the motion to dismiss that is b efore us on this appeal.

¶10 The question presented on this motion concerned the legal basis for a duty by Dr. Rodier to supervise or consult with Nurse West in her prescription of controlled substances for David Rag sdale. Defendants denied the existence of any such duty . In oppo sing the motion, plaintiffs asserted that “[ Dr. Rodier] is liable b ecause he had a statutory obligation to supervise Nurse West’s pr escription of the drugs she prescribed for Mr. Ragsdale, and [ Dr. Rodier] failed to comply with that statutory duty.” In other

1 The same is true for the clinic that employed Nurse West. The clinic filed a motion to dismiss after our remand in B.R. ex rel. Jeffs v. West , 2012 UT 11, 275 P.3d 228. But the district court denied that motion to dismiss, holding that the clinic could still be vicariously li able based on Nurse West’s actions.

3J EFFS v

. R ODIER Opinion of the Court
words, plaintiffs contended that Dr. Rodier was required “to co nsult with [ Nurse West] on the prescription of any schedu le II or III controlled substances .” (E mphasis added)

. They also argued that “a Utah statute imposed a d uty on Dr. Rodier to consult with Nurse West before she prescribed certain controlled substances.” (Emph asis added). As highlighted by counsel’s oral argument on the m otion, plaintiffs’ t heory was that the legislature “intended” that a consulting physician provide consultation “ [a] nytime a nurse pra ctitioner is prescribing these dangerous medications

. ” ( E mphasis added).

¶11 The district court granted the defendants’ motion, conclu ding that Dr. Rodier had no statutory “special relationship” with the plaintiffs and thus no duty in a case charging him with no nfea sance. We now review that decision de novo, without defe rence to t he district court. Turner v. Staker & Parson Cos. , 2012 UT 30, ¶ 7, 284 P.3d 600.

II

¶12 The issue on appeal concerns the threshold question of duty in tort. Duty is an essential element of a claim for negligence. Without a duty to act reasonably, a defendant may not be charged with liability for negligence. As to duty, “[t]ort law draws a crit ical distinction between affirmative acts and omissions.” Hill v. S uperior Prop. Mgmt. Servs., Inc. , 2013 UT 60, ¶ 10, 321 P.3d 1054. “ As a general rule, we all have a duty to act reasonably in our a f firm ative acts; but no such duty attaches with regard to omissions e xcept in cases of a special relationship. ” Id

.

¶13 This is a case of alleged omissions. As noted above, the premise of plaintiffs’ case against Dr. Rodier is his failure to co nsult with Nurse West in her individual prescriptions of controlled substances for David Ragsdale. Thus, plaintiffs have not alleged any acts of affirmative misconduct by D r. Rodier

— such as any agreement to a legally deficient consultation plan, or actions in contravention of the terms of an agreed

- upon plan. 2 So we need

2 This conclusion is underscored and explained by our analysis
in P art III below. There we note that plaintiffs sought to reform ulate their conception of Dr. Rodier’s duty to encompass these th eories in their reply brief and at oral argument on appeal. But we

4Cite as: 201 5 UT 1 Opinion of the Court
not and do not determine whether such a duty would attach in these circumstances. Our analysis centers in stead only on the claims as pleaded and argued in the district court

— Dr. Rodier’s alleged omissions in failing to consult with Nurse West as to ind ividual prescriptions she wrote for Ragsdale.

¶14 On that question we have little diff iculty concluding that plai ntiffs have failed to allege a legal basis for the duty in que stion. For the reasons set forth be low, we hold that the statutory framework identified by plaintiffs

— the Nurse Practice Act

— does not establish a duty by consulting physicians like Dr. Rodier to consult on an individual, prescription

- by

- prescription basis. And because plaintiffs’ only allegation s of negligence concern Dr. Rodier’s failure to consult on individual prescriptions, we affirm the dismissal of claims premised on that duty.

¶15 First, the N urse Practice Act is aimed at nurse practitioners
, not physicians. It includes detailed provisions regulat ing the p ra ctice of “ advanced practice registered nurs ing
, ” or in other words

“ the practice of nursing within the generally recognized scope and standards of advanced practice registered nursing as defined by rule and consistent with professionally recognized preparation and education standards. ” U TAH C ODE § 58

- 31 b

- 102(13) . And the terms of the Act are aimed at the comprehensive regulation of a dvan ced practice registered nursing

— at identifying the qualific ations for certification, id . §§ 58

- 31b

- 302,

- 303; setting the terms of and exemptions from licensure, id . §§ 58

- 31b

- 305 to

- 308; prescri bing standards and requirements for continuing education, id . § 58

- 31b

- 309; providing for regulation of and penalties for unprofe ssional and unlawful conduct, id . §§ 58

- 3 1b

- 501 to

- 503; and setting restrictions on practice within limits of competency, id . § 58

- 31b

801.

¶16 These are hardly the terms of regulation of p hysicians . The Nurse Practice Act is aimed at nurse practitioners. A physician would be unlikely to view this statute as the place to find t he legal duties of a doctor, particularly where such duties are set fo r th comprehensively in code provisions aimed s pecifically at doctors. See, e.g., Utah Medical Practice Act, U TAH C ODE §§ 58

- 67

- 101 to

-

decline to reach these issues because we find them unpreserved and thus not properly presented.

5J EFFS v

. R ODIER Opinion of the Court

806 ; Utah Medical Practice Act Rule, U TAH A DMIN

. C ODE R156

- 67

- 101 to

- 603.

¶17 Second, the Nurse Practice Act nowhere addresses the sp ecific duty

— of consultation on a prescription

- by

- prescription b asis

— asserted by the plaintiffs. To the contrary, the statute genera lly acknowledges the prerogative of a licensed nurse practitioner to prescribe and administer “schedule II

- III controlled substan ces,” at least so long as it is “in accordance with a consultation and referral plan.” U TAH C ODE § 58

- 31 b

- 102(13) (c)(iii)

.

¶18 Plaintiffs interpret this provision as imposing an obligation on the consulting physician to consult with the nurse practitioner on each individual prescription or administration of a controlled substance . We read the statute differently. It does not require pr escription

- by

- prescription consultation or supervision by the doctor

. It places the onus on the nurse practitioner, and authorizes a pr escription by such pr actitioner “in accordance with a consultation and referral plan.” I d. A “consultation and referral plan,” more over, is not defined in terms requiring the physician to supervise or consult on individual prescriptions. Instead such a plan is simply

a “writte n plan jointly developed by an advanced practice regi stered nurse and a consulting physician that permits the advanced practice registered nurse to prescribe schedule II

– III controlled substan ces in consultation with the consulting physician.” Id. § 58

- 31b

102(5) (emphasis added)

.

¶19 In a statute aimed at and regulating nurse practitioners
, the reference to “consultation with the consulting physician ” is best understood as imposing an obligation on the nurse practitioner

. That conclusion follows not o nly from the content and nature of the Nurse Practice Act, but a lso from the apparent sense of med ical “consultation” in this context. A consulting physician is a sp ecialist, and when one consults with a specialist it is at the instance of the generalist ( and not the other way around). See M ERRIAM

W EBSTER ’ S M EDICAL D ICTIONARY 137 (1995) ( defining “consultant” as “a physician and especially a specialist called in for professional advice or services usually at the request of another physician

— called also cons ulting physician ” (first and second emphasis added)); id. (defining “consult” as “to ask the advice or opinion . . . of a do ctor”). Thus, the statutory definition of “consultation and referral

6Cite as: 201 5 UT 1 Opinion of the Court
plan” is best understood as contemplating consultation at the b ehest of the subject of the Nurse Practice Act

— the nurse pract i tio ner.

¶20 Finally , a contrary conclusion is hard to reconcile with the operative requirement of the statute

— of prescriptions by nurse practitioners “in accordance with a consultation and referral plan.” U TAH C ODE § 58

- 31 b

- 102(13) (c)(iii) . The duty that plaintiffs advocate would render the notion of a “plan” superfluous. If i ndividualized consultation is required as to each prescription or administration, no further “plan” is needed. And the nurse pract itioner subject to individualized consultation on each prescription is not actually prescribing medication, or at least not doing so in accordance with a plan. Instead she is doing so under the direct, individualized supervision of a physician. T hat is not what the statute prescribes, and we cannot accept the plaintiffs’ proffered duty without doing violence to the statutory language.

¶21 For these reasons we affirm the dismissal of plaintiffs’ ne gligence claims against Dr. Rodier . We do so on the bas is of our d etermination that the plaintiffs have failed to establish a legal foo ting in the Nurse Practice Act to support the duty they alleged and argued in the district court

— a duty by Dr. Rodier to consult on each prescription provided by Nurse West for David Ragsdale.

III
¶22 The above grounds establish the basis for our affirmance of the district court’s decision in this case. But they do not fully a ddress the issues that plaintiffs have attempted to raise on appeal . In their reply brief and at oral argume nt, plaintiffs sought to intr oduce a theory of duty that extended beyond the narrow duty a ddressed above. We address that theory here, and reject it as u npreserved.

¶23 In their opening brief o n appeal, plaintiffs advanced a the ory of duty mirroring that which they asserted in the district court (and addressed above)

— that the Nurse Practice Act required “physician involvement” or individualized “consultation” as to each prescription for controlled substances. In their reply brief, however, plaintiffs sought to reformulate their allegation of duty. There they alleged that Dr. Rodier’s negligence was not just in not consulting on individual prescriptions but in failing to put in place

an adequate consultation plan in the first place

. Specifically, under

7J EFFS v

. R ODIER Opinion of the Court

this theor y, plaintiffs asserted that it would be a violation of a physician’s statutory duty to enter into a plan that gave nurse practitioners unfettered discretion to prescribe controlled su bstances without any meaningful, actual consultation with a phys ician.

¶24 P laintiffs’ counsel sought to press the same point at oral a rgument on appeal. In response to questions from the court, cou nsel asserted that the statute requires the establishment of a mea ningful consultation plan, while insisting that the mere authoriz ati on of carte blanche authority for a nurse practitioner would not qualify under the statute. From there plaintiffs’ counsel sought to frame Dr. Rodier’s negligence as a result of an affirmative act

— of

enter ing into a statutorily inadequate consultation plan

. And at that point both counsel and the court bega n to turn their attention to an affidavit identified by counsel for plaintiffs

— an affidavit a sserting that a consultation plan adopted by Nurse West and Dr. Rodier left sole discretion regarding any consul tation to Nurse West.

¶25 The question of a duty to enter into a statutorily sufficient consultation plan , however, was not properly preserved in the district court and is not properly before us on appeal. No such theory appeared in plaintiffs’ Amended Complai nt. And counsel for plaintiffs ultimately conceded at oral argument that this theory was not advanced in any argument presented to the district court

. It’s hard to see how it could have been . T he terms of the cited a ffidavit were contradicted by plaintiffs ’ allegation in the Amended Complaint that “no consultation plan existed.” And in any event the affidavit was ultimately stricken on stipulation of the parties

. So the only basis for a duty that was preserved at the district court was the one raised and re jected above

— of a statutory duty of a physician to supervise or consult on individual prescriptions for controlled substances.

¶26 We accordingly affirm the dismissal of the only claim that was preserved and argued below, without reaching the question whether a physician might have an affirmative duty to agree to a statutorily sufficient consultation pl an, or to consult in accordance with the terms of any plan.

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