Tuesday, February 24, 2009

Use of Cow Bone in Dental Procedure Did Not Violate Consumer Protection Act

This posting was written by Jody Coultas, Editor of CCH State Unfair Trade Practices.

A dental patient who had cow bone grafted into her mouth against her expressed wishes did not state a Washington Consumer Protection Act (CPA) claim against the dentist and dental office that performed the procedure, according to the Washington Supreme Court.

The patient required a bone graft as part of a dental surgerical procedure. She specified to the dentist that she did not want any animal bone used in the graft. However, during the procedure, the dentist ran out of human bone and used cow bone to finish the graft. While recovering, the patient learned about the cow bone and brought CPA claims against the dentist and the dental office, alleging that the use of the cow bone was an unfair or deceptive act.

Trade or Commerce

The CPA claims failed because the bone graft did not occur in the course of trade or commerce that caused the injury, according to the court.

The patient argued that the dental office engaged in trade or commerce because it solicited and retained patients by representing that human bone could be used for bone grafting procedures. However, the court found no evidence that the dental office advertised or marketed the availability of human bone or solicited patients based on the availability of human bone.

The CPA defines trade and commerce as the sale of assets or services and any commerce directly or indirectly affecting the people of the State of Washington. Those terms refer only to the entrepreneurial or commercial aspects of professional service and do not cover the substantive quality of services rendered.

In this case, the dentist's use of cow bone was not an entrepreneurial activity, the court held. It did not relate to billing, obtaining, or retaining patients; it simply related to the dentist's judgment and treatment of a payment. There was no evidence that cow bone was used to increase profits or the number of patients.

According to the court, the patient's claims stemmed from the quality of the dental procedure rather than how the dentist and dental office conducted business. Thus, the conduct was not actionable under the CPA.

Public Interest

Furthermore, the patient's claims did not serve the broader public interest, as required by the CPA, the court found.

When private disputes are alleged to be unfair or deceptive practices, four factors are used to determine whether the claim is in the public interest: (1) whether the alleged acts were committed in the course of the defendant’s business; (2) whether the defendant advertised to the public in general; (3) whether the defendant actively solicited this particular plaintiff, indicating potential solicitation of others; and (4) whether the plaintiff and defendant have unequal bargaining positions.

Although the complained-of conduct occurred in the course of business, there was no evidence that the dentist and dental office advertised to the public in general or actively solicited the patient’s business.

After evaluating all four factors, the court held that the lawsuit would not serve the public interest because it was unlikely that other people would be injured in the same way as the patient in this case.

The February 5 decision is Michael v. Mosquera-Lacy, CCH State Unfair Trade Practices Law ¶31,759.

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