Kansas high court: Doctor can be sued under consumer act

It's a safe bet that you don't think of yourself as a "supplier," but that's the category the Kansas Supreme Court put the state's physicians in when it ruled in February that patients -- which the court categorized as "consumers" -- could sue Kansas doctors for deceptive practices under the Kansas Consumer Protection Act.

The consumer protection act "is broad enough to encompass the providing of medical care and treatment services within a physician-patient relationship," the court said in its majority opinion. "A physician is, in the ordinary course of business, a seller or supplier of services."

In addition, the court noted, nothing in the statute excludes physicians or other professionals.

Jerry Slaughter, executive director of the Kansas Medical Society, said the court took a strict constructionist view, basically ruling that if the Legislature had meant to exempt doctors from the statute it would have said so.

"We have always taken the opposite view, that if they wanted [physicians] in there they would have named [them]," Slaughter said.

In supporting its ruling, the court noted that while there was historically a learned profession exemption from liability under federal antitrust laws, the U.S. Supreme Court eroded that exemption when it recognized in Goldfarb v. Virginia State Bar in 1975 that the Sherman Antitrust Act contains no exception for professionals.

The Goldfarb court held that the practice of law, as an exchange of services for money, was commerce that falls within the scope of the federal act.

The Kansas court also looked at decisions from several other state courts and noted that some of them had held that their state's consumer protection acts exempted professional conduct within the actual practice of law or medicine but not the entrepreneurial or business aspects of those practices. However, the Kansas court said that the language in those other states' statutes was different from the Kansas act in that they restricted the law to cover "trade or commerce" -- a restriction not found in the Kansas statute.

In a dissenting opinion, Justice Robert E. Davis faulted the court'smajority for looking at the Kansas Consumer Protection Act in isolation from other Kansas statutes regulating the health care professions.

"I would conclude that the majority's interpretation is not reasonable in light of the Legislature's all-encompassing statutory scheme relating to health care professionals, including physicians, the practice of medicine within this state and the adverse effect the majority's interpretation would likely have upon the public health and welfare of citizens," he wrote in an opinion joined by Chief Justice Kay McFarland.

Years of case law overturned

Slaughter said the medical society was surprised by the ruling because district courts have traditionally dismissed consumer protection act allegations against physicians.

Indeed, the Supreme Court decision stems from an appeal after District Judge Warren M. Wilbert, on his own initiative, dismissed the original lawsuit when it came before him for pretrial motions.

In that lawsuit, Jacob Amrani, MD, an orthopedic surgeon, was sued by Tracy Williamson, a patient on whom he performed back surgery.

Williamson claimed that Dr. Amrani told her that the surgery he was recommending had a high likelihood of successfully relieving her pain, but that in reality the surgery had been unsuccessful in a majority of cases in which Dr. Amrani performed the procedure.

Williamson also alleges Dr. Amrani told her the surgery would relieve her pain to the point where she would no longer need pain medication and would be able to return to work.

Dr. Amrani said he promised no such thing to Williamson.

He also said that Williamson signed three consent forms, each one containing a line that read "no warranties about the surgery have been made to me" directly above the signature line.

Dr. Amrani said he testified in his pretrial deposition that he no longer performs the procedure Williamson received because six months after her surgery he evaluated the results for the 28 patients he treated over a two-year period and found that in 75% of the patients the fusion was successful, but only 50 % of patients had pain relief.

"I didn't feel it was worth it to subject the patient to the pain for a 50/50 chance of getting better," Dr. Amrani said.

He also noted that it takes up to one year for a fusion to heal and that there was no way he could have known the surgery's success rate when he operated on Williamson.

He said that the proper place for any allegation that he guaranteed a result for Williamson or failed to adequately warn her of the risks, should be tried under medical malpractice law. He said Williamson's consumer protection lawsuit was an end run around that system.

More rulings to come

Slaughter said the medical society was aware that other states were seeing plaintiffs' attorneys trying to morph personal injury claims into consumer protection act claims to get around tort reforms.

Williamson's attorney, Michael L. Hodges, of Lenexa, Kan., said the consumer protection act should be available to patients who allege that their physicians have wrongfully done something because traditional medical malpractice law deals with negligence -- usually a physician failing to do something or failing do it within the standard of care.

Williamson also sued Dr. Amrani for medical malpractice, but the lawsuit was dismissed when she could not find an expert witness within the time frame allowed by Kansas law to testify that Dr. Amrani had deviated from the standard of care.

The Kansas Supreme Court upheld Wilbert's ruling that Williamson will be required to establish whether Dr. Amrani's failure to make an affirmative disclosure of his level of experience or success rate constituted a "deceptive or unconscionable act or practice" under the Kansas Consumer Protection Act.

The court said Williamson's attempt to prove that Dr. Amrani should have disclosed this information raises the question of whether such disclosure would normally be made by a reasonable physician under similar circumstances.

The ruling sends the case back to the district court for trial, and Dr. Amrani, who was willing to try the case from the beginning, said he is ready to move forward. A trial could take place sometime this summer.

In the meantime, the Kansas Medical Society is pushing for a state law that will specifically exempt physicians from the consumer protection act.

The Legislature's judiciary committee was slated to consider a bill March 1.