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Court of Appeal, Fourth District, Division 3, California.

Sierra CREASON, a Minor, etc., et al., Plaintiffs and Appellants, v. STATE DEPARTMENT OF HEALTH SERVICES, Defendant and Respondent.

No. G015879.

Decided: June 18, 1997

Law Offices of Berglund & Johnson and Harrison W. Sommer, Woodland Hills, for Plaintiffs and Appellants. Daniel E. Lungren, Attorney General, Robert H. Francis, Supervising Deputy Attorney General, Donald R. Currier and Joel A. Davis, Deputy Attorneys General, for Defendant and Respondent.


Plaintiffs Sierra Creason, a minor, and her parents, Claudia and Matthew Creason, sued defendant State of California, seeking damages allegedly arising from its failure to timely diagnose that Sierra was suffering from congenital hypothyroidism.   The trial court sustained defendant's demurrer to the first amended complaint without leave to amend and dismissed the action.   Plaintiffs present two issues for review:  (1) Whether the newborn screening program contained in the Hereditary Disorders Act (former Health & Saf.Code, § 150 et seq., § 309, repealed 1995, now § 124975 et seq.) imposes a mandatory duty on the state concerning the manner of reporting test results for congenital hypothyroidism;  and (2) assuming an enforceable duty exists, whether the state is immune from suit.   We conclude the trial court erred in dismissing the action and reverse.


The first amended complaint contains the following material allegations.   Sierra was born in October 1990.   Shortly after birth, a blood sample was taken from her and sent to a laboratory for analysis to determine the existence of certain genetic disorders including hypothyroidism.  “One purpose of such testing is to determine whether a newborn is producing sufficient thyroid hormone to ensure proper growth and development and to permit early medical intervention if necessary.”

“Participation ․ in the newborn screening and/or testing procedures was mandated under state law,” and the test “was conducted solely by [d]efendant ․ [¶] ․ to ensure full public protection against the devastating effects of preventable hereditary disorders and to permit early detection and necessary medical intervention.”  “Defendant ․ was under a mandatory duty to exercise reasonable diligence in the formulation of testing and reporting procedures such that accurate information was made available to parents and physicians of newborns ․ in order to achieve the stated purposes of the” law.

The laboratory informed plaintiffs and their physician the test was negative for congenital hypothyroidism.   Several months later, plaintiffs discovered Sierra did not have a thyroid gland and suffered from congenital hypothyroidism.   Plaintiffs alleged defendant breached its duty “by failing to exercise reasonable care and diligence with respect to” the “screening and testing procedures such that Plaintiff SIERRA's congenital hypothyroidism went undetected․”


1. Duty

The trial court ruled the state did not have a mandatory duty concerning the reporting of test results.   Plaintiffs allege the State Department of Health Services (department) is statutorily obligated to report test results for hypothyroidism in accordance with acceptable medical procedures, and the department failed to comply with this duty.   Defendant contends that while the statute imposes a duty to report test results, it leaves to the department the discretion to set the test reporting standards.   Alternatively, defendant argues that even if the statute creates a mandatory duty for test reporting, there is no legislative intent to create a private cause of action for a breach of the duty.

 The existence of legal duty presents a question of law.   (Nunn v. State of California (1984) 35 Cal.3d 616, 624, 200 Cal.Rptr. 440, 677 P.2d 846;  Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750, 167 Cal.Rptr. 70, 614 P.2d 728) Under the Tort Claims Act, a public entity is not liable for injury arising from an act or omission except as provided by statute.  (Gov.Code, § 815, subd. (a);  Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 809, 205 Cal.Rptr. 842, 685 P.2d 1193.)

 Plaintiffs rely on Government Code section section 815.6 to establish the defendant's duty in this case.   That section states, “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”   The statute imposes liability on a public entity where an enactment imposes a mandatory rather than a discretionary duty which is intended to protect against the kind of risk suffered by the party seeking relief and breach of the mandatory duty was the proximate cause of the injury suffered.  (State of California v. Superior Court (1984) 150 Cal.App.3d 848, 854, 197 Cal.Rptr. 914.)

At oral argument, defendant admitted the injury suffered by Sierra was the type the newborn screening program was intended to prevent.   Indeed, the Legislature has expressly declared the detection of certain disorders through screening “can lead to the alleviation of the disability.”  (Health & Saf.Code, § 124975, subd. (c).)  Furthermore, the amended complaint alleges defendant's negligence caused plaintiffs' injuries.   Causation generally presents a question of fact (Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1235, 32 Cal.Rptr.2d 136), and a demurrer raises only issues of law.  (Code Civ. Proc., § 589, subd. (a).)  Thus, the remaining question is whether the Hereditary Disorders Act creates a mandatory duty enforceable by a private cause of action.   We conclude the answer is yes.

 “As used in section 815.6, the term ‘mandatory’ refers to an obligatory duty which a governmental entity is required to perform as opposed to a permissive power which a governmental entity may exercise or not as it chooses.”  (Morris v. County of Marin (1977) 18 Cal.3d 901, 908, 136 Cal.Rptr. 251, 559 P.2d 606.)   The department must test each newborn child for certain genetic and congenital disorders unless the infant's parents object to the testing on religious grounds.  (Health & Saf.Code, § 125000, subds. (a) & (d).)   Hypothyroidism is one of the disorders covered by the newborn screening program.  (17 Cal.Code Regulations, § 6501, subd. (a).)  The Legislature has further directed the tests “shall be in accordance with accepted medical practices,” and the “regulations shall follow the standards and principles specified in [Health and Safety Code] Section 124980.”   (Health & Saf.Code, § 125000, subd. (a).)  Section 124980 requires, “Clinical testing procedures ․ be accurate, provide maximum information, and ․ produce results that are subject to minimum misinterpretation.”   (Health & Saf.Code, § 124980, subd. (d).)

 The department is required, not requested, to conduct screening tests that are accurate and conducted in a medically approved manner.   In addition, its reporting of the test results is required, not requested, to provide maximum information with a minimum of misinterpretation.   Thus, the statutory language reflects the Legislature intended these requirements to be obligatory rather than permissive.  (Morris v. County of Marin, supra, 18 Cal.3d at p. 910, 136 Cal.Rptr. 251, 559 P.2d 606.)

Plaintiffs assert the department negligently interpreted and reported Sierra's test results.   Plaintiffs' contentions on this issue may be summarized as follows:  The test for hypothyroidism quantifies the amount of thyroxin in the blood sample.   When the amount of thyroxin is below a certain level, a second test is performed to quantify the amount of thyroid stimulating hormone (TSH).   If the TSH value exceeds a certain level, the state reports the results as positive for hypothyroidism.   Where the TSH value falls within a lower range, the state issues a negative result for the disease, even though persons with low values of both thyroxin and TSH are known to have hypothyroidism.   If the disease is discovered and treatment begun within the first three months of life, severe damage can be prevented.   The test of Sierra's blood produced low values for both thyroxin and TSH, but the TSH value was within the “normal” range.   Thus, her test was reported as negative for congenital hypothyroidism, timely treatment was not commenced, and severe injuries resulted.

Plaintiffs contend that, since the state's regulations at the time of Sierra's test provided for reporting either a positive or negative result rather than the actual values obtained on the thyroxin and TSH components, and the state only reported a positive result where a child had a low thyroxin value and a high TSH value, the testing procedures failed to comply with the statutory mandates.   We conclude these assertions, if proved, establish the existence and breach of a mandatory duty.

Defendant argues that even if the newborn screening program creates a mandatory duty concerning the reporting of test results, the Legislature did not intend it to be a basis for civil liability.   In support of this argument, it cites State of California v. Superior Court (1992) 8 Cal.App.4th 954, 10 Cal.Rptr.2d 527, MacDonald v. State of California (1991) 230 Cal.App.3d 319, 281 Cal.Rptr. 317 and Tirpak v. Los Angeles Unified School Dist. (1986) 187 Cal.App.3d 639, 232 Cal.Rptr. 61.   These cases are inapposite, involving allegedly negligent acts relating to the issuance of a teaching credential, child care licensing and conducting student school-exclusion proceedings.   They involve duties imposed, not for the protection of specific individuals, but for the protection of the public in general.   The newborn screening program, on the other hand, is for the specific purpose of advising parents of infants born with heritable or congenital disorders which require early intervention of the need for immediate treatment.   It is not for the protection of the public in general.   No case is cited declaring a similar rule applies in the present context.   There is a reasonable possibility plaintiffs can allege facts stating a cause of action.

2. Immunity

The trial court also concluded that, even if a duty existed, defendant was immune from suit under Government Code section 855.6.   Plaintiffs contend this ruling is erroneous.   Defendant disagrees and also argues it is immune from suit under Government Code sections 818.2 and 820.2.

 The latter two statutes are clearly inapplicable.   Both apply to discretionary functions.  (Nunn v. State of California, supra, 35 Cal.3d at p. 622, 200 Cal.Rptr. 440, 677 P.2d 846;  Morris v. County of Marin, supra, 18 Cal.3d at pp. 916-917, 136 Cal.Rptr. 251, 559 P.2d 606;  Johnson v. State of California (1968) 69 Cal.2d 782, 787, 73 Cal.Rptr. 240, 447 P.2d 352.)   As discussed, this case concerns the department's failure to perform a mandatory duty.   Thus, the foregoing statutes do not apply.  (Elson v. Public Utilities Commission (1975) 51 Cal.App.3d 577, 589, 124 Cal.Rptr. 305;  Elton v. County of Orange (1970) 3 Cal.App.3d 1053, 1057-1059, 84 Cal.Rptr. 27.)

 Furthermore, we conclude Government Code section 855.6 does not afford defendant immunity with respect to the reporting of test results under the newborn screening program.   That statute declares, “Except for an examination or diagnosis for the purpose of treatment, neither a public entity nor a public employee acting within the scope of his employment is liable for injury caused by the failure to make a physical or mental examination, or to make an adequate physical or mental examination, of any person for the purpose of determining whether such person has a disease or physical or mental condition that would constitute a hazard to the health or safety of himself or others.”

Plaintiffs contend Government Code section 855.6 is inapplicable because the “diagnosis for hypothyroidism ․ is specifically made for the purpose of early detection and medical intervention and treatment.”   We agree.

Health and Safety Code section 125000, subdivision (a) declares “It is the policy of the State of California to make every effort to detect, as early as possible, phenylketonuria and other preventable heritable or congenital disorders leading to mental retardation or physical defects.”   In Health and Safety Code section 124975, the Legislature found, “Detection through screening of hereditary disorders can lead to the alleviation of the disability of some hereditary disorders and contribute to the further understanding and accumulation of medical knowledge about hereditary disorders that may lead to their eventual alleviation or cure,” and that “some ․ disorders may be wholly or partially alleviated through medical intervention and treatment.”  (Health & Saf.Code, § 124975, subds. (c) & (d).)   Given these legislative declarations, we conclude the newborn screening program is for the purpose of treatment and falls outside Government Code section 855.6.  (See Smith v. County of Kern (1993) 20 Cal.App.4th 1826, 1830, 1835, 25 Cal.Rptr.2d 716.)


The judgment is reversed.   Plaintiffs shall recover their costs on appeal.

RYLAARSDAM, Associate Justice.

WALLIN, Acting P.J., and SONENSHINE, J., concur.

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