Berry v. National Medical Services, Inc.
257 P.3d 287
| Kan. | 2011Background
- Berry, a Kansas-licensed RN, enrolled in KNAP after admitting alcohol dependency.
- Compass administered KNAP's alcohol testing; NMS performed the EtG tests.
- EtG testing used cutoff reporting at 250 ng/mL and asserted 500 ng/mL proves intentional drinking.
- Berry provided random urine samples; EtG results were 2200 ng/mL (Jan 2005) and 290 ng/mL (June 2005).
- Resulting KNAP suspension and later nursing license revocation occurred; Berry sued for negligence and consumer protection.
- District court dismissed with prejudice; Court of Appeals reversed the negligence dismissal; issue of duty and public policy analyzed on review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of a legal duty to report EtG results accurately | Berry argues Defendants owed a duty to report accurately | Defendants contend no tort duty beyond contract | Duty recognized; reporting accuracy owed to test subjects |
| Foreseeability of harm to Berry | Berry is a foreseeable plaintiff given testing the test subject | Unclear or limited foreseeability arguments | Harm foreseeability established; Berry within range of apprehension |
| Public policy limiting or denying duty | Public policy does not bar duty due to regulatory framework | Public policy favoring limits via licensing schemes | Public policy did not preclude recognizing a duty; duty affirmed |
Key Cases Cited
- Durflinger v. Artiles, 234 Kan. 484 (1983) (foreseeability and duty analysis in negligence)
- OMI Holdings, Inc. v. Howell, 260 Kan. 305 (1996) (defining duty as foreseeability of harm)
- Ling v. Jan's Liquors, 237 Kan. 629 (1985) (limits on public policy for liability against vendors)
- Nelson v. Miller, 227 Kan. 271 (1980) (public policy and professional liability considerations)