Kansas consumer act excludes medical negligence

Kansas physicians no longer have to worry about plaintiff lawyers using the state's Consumer Protection Act as another way to sue them for medical negligence, now that a new law has passed.

Despite a Kansas Supreme Court defeat and an initial veto by the governor, doctors in May reached a compromise with Gov. Kathleen Sebelius, who signed a bill that differentiates between medical liability claims and consumer protection claims, which cover intentionally deceptive business practices.

The law does not allow individuals to bring claims under the act against doctors or other licensed health care professionals for personal injury or death allegedly resulting from medical negligence. The Kansas Medical Society lobbied for the changes, modeled after a Texas statute.

The wrangling followed a February state Supreme Court ruling in which justices found that under the consumer protection law, doctors could be liable for their conduct when providing medical treatment. Nothing in the law specifically excluded doctors or other professionals, the court said. The decision in Williamson v. Amrani was believed to be the first in the state to apply the act to medical negligence.

Doctors worried the ruling would open the door to more litigation against them if plaintiff lawyers could use the act essentially to get two remedies for one action. Trial lawyers, on the other hand, argued that an exemption gives doctors special protection while depriving patients of any recourse for outright misrepresentations that harm them.

"The purpose of our introducing this bill was not to immunize physicians or give them special treatment. We really just wanted to restore this law to where it has traditionally been applied," said KMS Executive Director Jerry Slaughter.

In the past, Kansas courts have typically dismissed consumer protection claims against doctors, in favor of remedies available under medical liability laws, he said. Other types of business practices, however, such as billing fraud or false advertising, are still covered under the consumer protection law, Slaughter noted.

Sebelius' office declined to comment for this story. But the governor rejected an earlier proposal to amend the Consumer Protection Act, saying it was too broad, and would have immunized the "entire health care industry" from liability.

"No single industry can justify a special exemption from 'deceptive' and 'unconscionable' acts," her statement read. Sebelius at the time also said the Supreme Court ruling was unlikely to increase litigation.

Since the court decision, however, medical society officials said they noticed some lawyers asking the courts to amend medical liability claims to include consumer protection claims.

The Kansas Trial Lawyers Assn., which opposed the amendment, declined to comment for this story.

But Michael L. Hodges, the plaintiff attorney in Williamson v. Amrani, said, "I don't see any particular need for one part of society to be exempted from the laws that apply to everybody else." He added that there are very limited circumstances under which a consumer protection claim could be brought against a doctor, saying, "it really takes a deceptive act."

It remains unclear how the change to the statute will affect pending claims. Hodges, though, said his case will proceed because it was filed before the amendment. Trial is expected to begin in the fall. He declined to comment on the lawsuit, but he anticipates further debate over the interpretation of the new law in the courts.