Monday, February 26, 2007

Physician's Professional Conduct Is Subject to Kansas Consumer Protection Act

This posting was written by Mark Engstrom, editor of CCH State Unfair Trade Practices Law.

The Kansas Consumer Protection Act should be liberally construed to allow claims against physicians who engage in deceptive or unconscionable professional conduct, the Kansas Supreme Court has ruled. Because the state legislature did not explicitly exclude physicians from the scope of the Act, a physician could be sued under the KCPA for alleged misrepresentations about patient care and treatment.

Therefore, a patient could proceed with a KCPA claim against her doctor, who allegedly misrepresented or concealed material facts about the success rate of a surgical procedure he was recommending.

According to the patient, the doctor represented that the procedure had a "high likelihood" of success when, in fact, he knew or should have known that the procedure had produced "bad results" for the majority of his patients. The doctor unsuccessfully argued that the patient's KCPA claims were an impermissible attempt to creatively plead medical malpractice.

Scope of the Act

The plain language of the KCPA was broad enough to encompass the provision of medical care and treatment services within the context of a physician-patient relationship, the court decided. Moreover, the fact that the KCPA had specifically excluded other persons and transactions indicated that the legislature knew how to exclude specific categories of people and transactions from the Act, and could have excluded physicians, as well, had it intended to do so.

Although courts in other states had articulated "persuasive policy reasons" for excluding physicians from liability under their consumer protection laws, those courts generally relied on specific statutory language that limited the scope of those laws to entities engaged in trade or commerce. The KCPA, the court noted, did not contain any such "trade or commerce" language.

Finally, despite the doctor's contention that the Kansas legislature had adopted a "comprehensive statutory scheme" for litigating medical malpractice cases, and thus had made it clear that claims against physicians were not intended to be remedied under the KCPA, the legislature had not passed any statute prohibiting the application of the KCPA to medical negligence claims.

Expert Testimony

In order to establish whether the physician had actually violated the KCPA by failing to affirmatively disclose his experience and/or actual success rate, expert testimony would be required, the court ruled. Under the KCPA, a finding of liability for failing to disclose a material fact required proof of a willful failure to state the fact, or a willful concealment, suppression, or omission of the fact. Before one can willfully fail to disclose a material fact, however, there must be an obligation to disclose that fact. Ordinarily, expert testimony was required to establish a physician's professional obligations, i.e., the standard for what a reasonable medical practitioner would have disclosed under similar circumstances.

The case is Williamson v. Amrani, Kansas Supreme Court, No. 95,154, filed February 9, 2007, CCH State Unfair Trade Practices Law ¶31,349.

No comments: