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

                               2015 UT 1

                                 IN THE
      SUPREME COURT OF THE STATE OF UTAH
                          ———————
            B.R., a minor child and C.R., a minor child,
             through their conservator WILLIAM JEFFS,
                            Appellants,
                                    v.

                       HUGO RODIER, M.D.,
                              Appellee.
                          ———————
                           No. 20121098
                       Filed January 9, 2015
                          ———————
                      Third District, Salt Lake
                    The Honorable Robert Faust
                           No. 100907025
                          ———————
                            Attorneys:
              Allen K. Young, Tyler S. Young, Provo,
            Jonah Orlofsky, Chicago, IL, for appellants
             Vaun B. Hall, Salt Lake City, for appellee
                         ———————
     JUSTICE LEE authored the opinion of the Court, in which
  CHIEF JUSTICE DURRANT, JUSTICE DURHAM, JUSTICE PARRISH, and
                      JUDGE PEARCE joined.
  ASSOCIATE CHIEF JUSTICE NEHRING does not participate herein;
         COURT OF APPEALS JUDGE JOHN A. PEARCE sat.
                        ———————

 JUSTICE LEE, 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 pre-
scribed 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 aggravated murder, filed suit in tort
through their conservator, William Jeffs.
                           JEFFS v. RODIER
                       Opinion of the Court

  ¶2 In a previous case we reversed the dismissal of the chil-
dren’s tort suit against Nurse West. See B.R. ex rel. Jeffs v. West,
2012 UT 11, 275 P.3d 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 might be injured as a foreseeable result of her negli-
gence. 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 Rags-
dale. They cite provisions of the Utah Nurse Practice Act, UTAH
CODE §§ 58-31b-101 to -802, as the basis for such a duty. We af-
firm, finding nothing in the cited provisions of the statute to im-
pose on a physician a duty to consult on each individual prescrip-
tion of a controlled substance.
                                  I
  ¶4 Because 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 Ragsdale killed his wife, he was a pa-
tient 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 medications 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 as she did so “in accordance with a consulta-
tion and referral plan.” UTAH CODE § 58-31b-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 con-
sulting physician that permits the advanced practice registered
nurse to prescribe schedule II–III controlled substances in consul-
tation with the consulting physician.” Id. § 58-31b-102(5).



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                        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 in-
creased dosages of various schedule II and III controlled sub-
stances to Ragsdale without ever consulting with Dr. Rodier. Fi-
nally, plaintiffs alleged negligence on Dr. Rodier’s part in not af-
firmatively reaching out to Nurse West to discuss her treatment
decisions regarding Ragsdale’s care.
  ¶8 In the district court, plaintiffs consistently 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, proxi-
mate, and foreseeable cause” of Ragsdale’s violent episode. (Em-
phasis 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, as-
serting that she had no duty of care to non-patients. See Jeffs, 2012
UT 11, ¶ 4. The district court agreed, but we reversed that deci-
sion on appeal. Id. ¶ 20. The plaintiffs subsequently entered into a
voluntary settlement with Nurse West, but Dr. Rodier remained
in the suit. 1 Dr. Rodier then filed the motion to dismiss that is be-
fore 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 Rags-
dale. Defendants denied the existence of any such duty. In oppos-
ing the motion, plaintiffs asserted that “[Dr. Rodier] is liable be-
cause he had a statutory obligation to supervise Nurse West’s pre-
scription 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
liable based on Nurse West’s actions.

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                          JEFFS v. RODIER
                       Opinion of the Court

words, plaintiffs contended that Dr. Rodier was required “to con-
sult with [Nurse West] on the prescription of any schedule II or III
controlled substances.” (Emphasis added). They also argued that “a
Utah statute imposed a duty on Dr. Rodier to consult with Nurse
West before she prescribed certain controlled substances.” (Empha-
sis added). As highlighted by counsel’s oral argument on the mo-
tion, plaintiffs’ theory was that the legislature “intended” that a
consulting physician provide consultation “[a]nytime a nurse prac-
titioner is prescribing these dangerous medications.” (Emphasis
added).
  ¶11 The district court granted the defendants’ motion, conclud-
ing that Dr. Rodier had no statutory “special relationship” with
the plaintiffs and thus no duty in a case charging him with non-
feasance. We now review that decision de novo, without defer-
ence to the 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 criti-
cal distinction between affirmative acts and omissions.” Hill v. Su-
perior 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 affirma-
tive acts; but no such duty attaches with regard to omissions ex-
cept 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 con-
sult with Nurse West in her individual prescriptions of controlled
substances for David Ragsdale. Thus, plaintiffs have not alleged
any acts of affirmative misconduct by Dr. 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 Part III below. There we note that plaintiffs sought to reformu-
late their conception of Dr. Rodier’s duty to encompass these the-
ories in their reply brief and at oral argument on appeal. But we

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                       Opinion of the Court

not and do not determine whether such a duty would attach in
these circumstances. Our analysis centers instead 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 indi-
vidual prescriptions she wrote for Ragsdale.
  ¶14 On that question we have little difficulty concluding that
plaintiffs have failed to allege a legal basis for the duty in ques-
tion. For the reasons set forth below, 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 allegations 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 Nurse Practice Act is aimed at nurse practitioners,
not physicians. It includes detailed provisions regulating the prac-
tice of “advanced practice registered nursing,” 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.” UTAH CODE § 58-31b-102(13). And the
terms of the Act are aimed at the comprehensive regulation of ad-
vanced practice registered nursing—at identifying the qualifica-
tions for certification, id. §§ 58-31b-302, -303; setting the terms of
and exemptions from licensure, id. §§ 58-31b-305 to -308; prescrib-
ing standards and requirements for continuing education, id. § 58-
31b-309; providing for regulation of and penalties for unprofes-
sional and unlawful conduct, id. §§ 58-31b-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 physicians. The
Nurse Practice Act is aimed at nurse practitioners. A physician
would be unlikely to view this statute as the place to find the legal
duties of a doctor, particularly where such duties are set forth
comprehensively in code provisions aimed specifically at doctors.
See, e.g., Utah Medical Practice Act, UTAH CODE §§ 58-67-101 to -



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

                                  5
                             JEFFS v. RODIER
                         Opinion of the Court

806; Utah Medical Practice Act Rule, UTAH ADMIN. CODE R156-67-
101 to -603.
  ¶17 Second, the Nurse Practice Act nowhere addresses the spe-
cific duty—of consultation on a prescription-by-prescription ba-
sis—asserted by the plaintiffs. To the contrary, the statute general-
ly acknowledges the prerogative of a licensed nurse practitioner
to prescribe and administer “schedule II-III controlled substanc-
es,” at least so long as it is “in accordance with a consultation and
referral plan.” UTAH CODE § 58-31b-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 pre-
scription-by-prescription consultation or supervision by the doctor.
It places the onus on the nurse practitioner, and authorizes a pre-
scription by such practitioner “in accordance with a consultation
and referral plan.” Id. A “consultation and referral plan,” moreo-
ver, is not defined in terms requiring the physician to supervise or
consult on individual prescriptions. Instead such a plan is simply
a “written plan jointly developed by an advanced practice regis-
tered nurse and a consulting physician that permits the advanced
practice registered nurse to prescribe schedule II–III controlled substanc-
es 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 only from the content and nature of
the Nurse Practice Act, but also from the apparent sense of medi-
cal “consultation” in this context. A consulting physician is a spe-
cialist, and when one consults with a specialist it is at the instance
of the generalist (and not the other way around). See MERRIAM-
WEBSTER’S MEDICAL DICTIONARY 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 consulting physician” (first and second emphasis added)); id.
(defining “consult” as “to ask the advice or opinion . . . of a doc-
tor”). Thus, the statutory definition of “consultation and referral




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                         Cite as: 2015 UT 1
                       Opinion of the Court

plan” is best understood as contemplating consultation at the be-
hest of the subject of the Nurse Practice Act—the nurse practition-
er.
  ¶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.” UTAH CODE § 58-31b-102(13)(c)(iii). The duty that plaintiffs
advocate would render the notion of a “plan” superfluous. If in-
dividualized consultation is required as to each prescription or
administration, no further “plan” is needed. And the nurse practi-
tioner 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. That 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’ neg-
ligence claims against Dr. Rodier. We do so on the basis of our de-
termination that the plaintiffs have failed to establish a legal foot-
ing 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 ad-
dress the issues that plaintiffs have attempted to raise on appeal. In
their reply brief and at oral argument, plaintiffs sought to intro-
duce a theory of duty that extended beyond the narrow duty ad-
dressed above. We address that theory here, and reject it as un-
preserved.
  ¶23 In their opening brief on appeal, plaintiffs advanced a theo-
ry 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


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                          JEFFS v. RODIER
                       Opinion of the Court

this theory, 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 sub-
stances without any meaningful, actual consultation with a physi-
cian.
  ¶24 Plaintiffs’ counsel sought to press the same point at oral ar-
gument on appeal. In response to questions from the court, coun-
sel asserted that the statute requires the establishment of a mean-
ingful consultation plan, while insisting that the mere authoriza-
tion 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
entering into a statutorily inadequate consultation plan. And at
that point both counsel and the court began to turn their attention
to an affidavit identified by counsel for plaintiffs—an affidavit as-
serting that a consultation plan adopted by Nurse West and Dr.
Rodier left sole discretion regarding any consultation 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 Complaint. 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. The terms of the cited af-
fidavit 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 rejected 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 plan, or to consult in accordance
with the terms of any plan.
                            ——————




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