concurring in part and dissenting in part: I concur in my colleague’s affirmance of the district court’s dismissal of Berry’s consumer protection claim. I dissent, however, from the reversal of the district court’s dismissal of Berry’s negligence claim.
It is the public policy of this state, as decided by the Kansas Legislature in its enactment of K.S.A. 65-1120, that the Kansas State Board of Nursing (Board) has authority to establish, regulate, and enforce the professional competency of nurses. Moreover, pursuant to K.S.A. 77-621(c), the legislature has granted the judiciary a limited power to review (using a deferential standard) the Board’s disciplinary actions against impaired nurses. These legislatively established public policies are undermined by the majority’s decision of first impression in Kansas. I would hold that laboratory testing facilities and third-party administrators do not owe a duty to nurses addicted to alcohol whose specimens they test under a contract with the administrative agency empowered by the legislature to regulate the professional competency of nurses.
I would add the following facts to those recounted by the majority. Berry pled that
“[b]ecause of the sensitive nature of their positions with respect to patient care, registered nurses in Kansas who have an admitted history of addiction, are required to enter into Recovery Program Agreements with [the Kansas Nurses Assistance Program] KNAP, by which they agree to submit to random observed urine analysis to document a drug-free condition known as ‘zero-tolerance’ environment.”
In addition, Berry pled that she “signed a KNAP Agreement with the Board submitting herself to future random testing.” She also pled that after her Januaiy 13, 2005, test was returned positive (2200 ng/mL), she “was suspended for two months [,] not allowed to work as a nurse,” and suffered damage to her reputation with consequent anxiety, stress, and humiliation. According to Berry, after her June 1, 2005, test was also returned positive (290 ng/mL), she was
“unable to work as a nurse and faced with mandatory expensive inpatient treatment and suspension from work based on the EtG testing . . . [she] refused to continue in the KNAP program because of the unfairness of the EtG testing, and *624in August 2005 her nursing license in Kansas was revoked, preventing her from employment as a nurse.” (Emphasis added.)
As my colleagues acknowledge, “the fact that a duty may arise from the foreseeablity of harm does not always mean that such duty actually arises. A court may choose not to recognize the duty if the duty goes against public policy.” OMI Holdings, Inc. v. Howell, 260 Kan. 305, 338, 918 P.2d 1274 (1976). In OMI Holdings, our Supreme Court held that a witness owed no duty to the parties in litigation to refrain from improper contact with jurors, even where a mistrial was foreseeable, “because it places an intolerable burden on all witnesses and may deter witnesses from testifying.” 260 Kan. at 338.
The majority also properly recognizes that courts typically defer to the legislature on questions of public policy. See Ling v. Jan’s Liquors, 237 Kan. 629, Syl. ¶ 5, 703 P.2d 731 (1985). In Ling, the issue was whether Kansas should, “in the absence of a dram shop act,” impose a duty on liquor sellers to protect those who might be harmed by liquor sales. 237 Kan. at 635. The common law did not recognize such a duty, and our Supreme Court decided to leave the public policy decision to the legislature:
“Although empowered to change the common law in light of changed conditions, this court recognizes that declaration of public policy is normally the function of the legislative branch of government. Whether Kansas should abandon the old common-law rule and align itself with the new trend of cases which impose civil liability upon vendors of alcoholic beverages for the torts of their inebriated patrons depends ultimately upon what best serves the societal interest and need. Clearly, this is a matter of public policy which the legislature is best equipped to handle.” 237 Kan. at 640.
In the present case, my colleagues err by concluding that our legislature has not spoken. Under K.S.A. 65-1114(a)(1)-(4), it is unlawful for any person to practice professional nursing in Kansas “unless such person has been duly licensed.” Under K.S.A. 65-1120(a)(6), the Board may “deny, revoke, limit or suspend any license” if, after a hearing, the licensee is found to “be guilty of unprofessional conduct as defined by the rules and regulations of the board.” Those rules and regulations define unprofessional con*625duct to include “failing to complete the requirements of the impaired provider program of the [B]oard.” K.A.R. 60-3-110(s).
Assuming the amended petition is true, Berry’s license was suspended, she was required to enter and complete treatment, and her license was eventually revoked, not by Compass Vision, Inc. (Compass), or National Medical Services, Inc. (NMS), which are private entities doing business with each other and the Board, but by the administrative agency empowered by the legislature to discipline impaired nurses.
The context in which Berry’s claim arose — a governmental agency action to discipline a nurse for unprofessional conduct — is an important matter of public health and safety. This situation is clearly distinguishable from the typical claim which might be stated against a laboratory testing facility which negligently tests for illicit drugs and alcohol and, as a result, an employee is subjected to adverse action by a private employer. Laboratory testing facilities are typically the targets of such lawsuits because the employment was terminable at will or because the employer would have some other basis, such as a good-faith reliance on the test result, to justify its action. See Comment, Imposing Liability on Drug Testing Laboratories for ‘False Positives’: Getting Around Privity, 64 U. Chi. L. Rev. 287, 296-97 (1997).
The cases cited by Berry and relied on by the majority fall into this category. In Stinson v. Physicians Immediate Care, 269 Ill. App. 3d 659, 664, 646 N.E.2d 930 (1995), for example, the Illinois Appellate Court reasoned:
“[T]he injury, that the plaintiff would be terminated from his employment, is not only foreseeable, but also is a virtual certainty in the event of a positive drug test result. In addition, the likelihood of injury is great; the plaintiff allegedly lost his job and was hindered in his efforts to find other employment because of the false positive drug test report.”
In marked contrast, Berry’s licensure was not terminable at will. To the contrary, Berry possessed important due process rights to her nursing license. See Murphy v. Nelson, 260 Kan. 589, 598, 921 P.2d 1225 (1996) (property interests generally);, see also Neal v. Fields, 429 F.3d 1165, 1167 (8th Cir. 2005) (nursing license is a property interest); Ross v. Indiana State Bd. of Nursing, 790 *626N.E.2d 110, 121 (Ind. App. 2003) (same); Miss. State Bd. of Nursing v. Wilson, 624 So. 2d 485, 494 (Miss. 1993) (same). Accordingly, through the administrative scheme promulgated by the legislature, Berry possessed a panoply of rights which afforded her every opportunity to raise the myriad of complaints she had regarding the EtG testing and redressing any disciplinary action taken by the Board.
Berry, however, chose not to invoke her due process rights under Kansas law. She withdrew from KNAP, and she does not allege that she contested the Board’s subsequent revocation of her nursing license. Instead, Berry collaterally attacked the Board’s adverse administrative action by claiming the laboratory facility and third-party administrator owed her, among other things, a duty of ordinary care in setting a threshold for positive alcohol testing.
I believe the legislature is best equipped to know “what best serves the societal interest and need.” Ling, 237 Kan. at 640. The Board’s administrative procedures both insure Berry’s due process rights to licensure and also protect the health and safety of patients under the care and treatment of impaired nurses. It is not the public policy of Kansas to conduct administrative procedure through private causes of action. To find a duty owed to an impaired nurse by a private laboratory facility and a third-party administrator doing business with the Board is to sanction circumvention of the Board’s authority. This approach is contrary to the legislature’s clear intent to empower the Board to afford due process to impaired nurses, to establish appropriate rules and procedures for compliance with KNAP, and, when appropriate, to discipline impaired nurses in order to insure the public’s health and safety.
Additionally, pursuant to K.S.A. 65-1121a, “[a]ny agency action of the [Board] . . . is subject to review in accordance with the act for judicial review and civil enforcement of agency actions,” K.S.A. 77-601 et seq. Instead of acknowledging the legislature’s limited grant of authority to the courts in this area, i.e., to review the Board’s decisions under the deferential standard of K.S.A. 77-621(c), my colleagues would have the courts rule in the first instance, with the Board presumably to show deference to the courts *627even in the matters specifically entrusted to it by the legislature. I do not believe the courts are in a better position than the Board to determine the appropriate margin of safety for nurses with an alcohol dependency who provide care and treatment to their patients.
In short, the result reached by my colleagues contradicts the well-established relationship between the courts and administrative agencies. See Lacy v. Kansas Dental Board, 274 Kan. 1031, 1040, 58 P.3d 668 (2002) (district courts may not substitute its judgment for that of an administrative agency); NEA-Coffeyville v. U.S.D. No. 445, 268 Kan. 384, 389, 996 P.2d 821 (2000) (“Because agency decisions are frequently of a discretionary nature or frequently require specific expertise, the agency should be given the first chance to exercise that discretion or to apply that specific expertise.”).
This lack of deference to the Board is also reflected in the majority’s foreseeability of harm analysis. Although my colleagues contend that Compass and NMS should have foreseen that Berry’s licensure could be harmed by a negligently determined positive test result, the decisions regarding KNAP compliance and Berry’s licensure undoubtedly remained with the Board. This is a question of law, not fact. Berry could not, by mere pleading, turn the Board into an appendage of Compass and NMS. I also do not read Berry’s petition to malee that particular claim.
It was, therefore, not foreseeable that invalid test results would result in the Board’s adverse action against Berry’s nursing license. Beriy had an opportunity to contest the results both at the agency level and before the courts, if necessary. In this way, the Board’s status as an administrative agency distinguishes it from a private employer for purposes of foreseeablity.
Finally, Berry did not allege that her license was revoked after the first or even the second positive test result. Berry alleged that her license was revoked after she voluntarily withdrew from KNAP. Given this factual assertion by Berry, it appears that any harm she sustained was not foreseeable as a result of one or two positive test results, but was due to her own conduct in withdrawing from the impaired nurses program.
*628I would affirm the district court’s dismissal of the amended petition.