Consumer protection act covers doctor's care, Kansas court rules.

A patient has the right to sue her doctor for deceptive acts and practices in treatment under the state consumer protection act, the Kansas Supreme Court has ruled. (Williamson v. Amrani, 2007 WL 419698 (Kan. Feb. 9, 2007).)

Tracy Williamson said her doctor, Jacob Amrani, recommended back surgery and told her it would relieve her pain, when in fact the procedure had been unsuccessful in most of Amrani's cases. Williamson sued him for engaging in deceptive acts and practices and violating the Kansas Consumer Protection Act (KCPA) by representing that the surgery would have benefits that it did not have.

Rejecting Amrani's argument that the statute does not apply to doctors' professional conduct in treating their patients, the state supreme court ruled 5-2 that "the plain language of the KCPA is broad enough to encompass the providing of medical care and treatment services within a physician-patient relationship."

The trial court initially denied Amrani's summary judgment motion but agreed with his argument that expert testimony would be required to establish whether the doctor's failure to disclose his experience or success rate was a deceptive or unconscionable act or practice. Latin, a different judge granted Amrani's motion for summary judgment. Williamson appealed.

The Kansas Supreme Court reinstated the case, finding that that the consumer protection act encompassed the medical profession.

"A physician is, in the ordinary course of business, a seller or supplier of services. A patient is a consumer of those services for personal, family, or business purposes. The sale of those services is a consumer transaction. Nothing in the KCPA explicitly excludes physicians or other professionals from the scope of its coverage," the court wrote.

The court refuted Amrani's argument that the legislature intended to exclude medical cases because of its various laws addressing medical malpractice, saying the patchwork of statutes didn't preclude coverage under the KCPA. The court said that because the act does specifically exclude certain professions and transactions, the legislature would have excluded doctors if it had intended to.

Some states (including Maryland, North Carolina, and Ohio) specifically exempt members of learned professions from their consumer protection acts, the court noted. But "most states, like Kansas, have left it to the courts to determine whether attorneys, physicians, and other learned professionals fall within the coverage of their consumer protection or deceptive trade practice acts."

The opinion noted that "many courts have interpreted the applicable statutory language as exempting professional conduct within the actual practice of law or medicine but not the entrepreneurial or business aspects of those practices," listing cases in New York, Texas, and Washington. It said the "trade or commerce" language in many state consumer protection laws may pose this entrepreneurial test, but the Kansas statute does not contain that langauage.

The supreme court supported the lower court's finding that expert testimony may be necessary to prove Williamson's claim.

"The district correctly ruled that expert testimony would be helpful in determining whether the disclosure [of the doctor's level of experience or success rate for the surgery] is one that would be made by a reasonable medical practitioner under the same or like circumstances," the court wrote.

It sent the case back to the district court for trial.

The reach of Kansas's first look at this issue may be limited. Steven Borel, an Olathe, Kansas, attorney who represents plaintiffs in medical malpractice cases, noted that the sections of the act that are most relevant to medical malpractice relate to misrepresentations or willful failures to disclose important information.

"I think the Kansas CPA probably won't have a great effect on Kansas medical malpractice litigation except for cases where the defendant doctor misrepresented his or her experience in performing a particular surgery or committed some other misrepresentation or willful failure to disclose information," Borel said.

While the decision could lead to applying the consumer protection act to misrepresentations by other health care providers--such as to a hospital's failure to disclose high infection rate--the ruling said "you would probably still need expert testimony that the hospital had a duty to make the disclosure in the first place, and so far no such duty has been recognized in Kansas," Borel said.