Can a physician be found to have engaged in deceptive acts and practices as described in a state’s consumer protection act? Specifically, is it a violation of the act if a doctor knowingly makes misrepresentations regarding a proposed treatment or willfully conceals or fails to fully disclose material facts? These are the questions recently answered in Williamson v Amrani (152 P.3d 60) (Kan., 2007).
The patient sustained a back injury 14 years previously. Having sought treatment off and on for over a decade, the patient turned to the defendant, an orthopedic surgeon, who recommended spinal surgery. According to the plaintiff, the defendant stated that the surgery had a high likelihood of successfully relieving the patient’s pain. In fact, that surgical procedure had been unsuccessful in most patients in whom the doctor had performed it. The plaintiff claimed that this deception violated K.S.A.50-626, a section of the Kansas Consumer Protection Act (KCPA). The plaintiff also alleged that the defendant’s deceptive statements were a willful misrepresentation and that they concealed material facts since the defendant knew or should have known that the surgery he was recommending had produced bad results for most of his patients. It was claimed that this unconscionable act violated K.S.A. 50-627, another section of the KCPA.
At trial, the defendant moved for summary judgment, arguing that the KCPA did not apply to physicians and was merely a creative way to entertain a malpractice action against him. The court ruled in favor of the plaintiff, noting that, under the KCPA, a physician can easily be construed to be a supplier and the patient a consumer, and that the doctor-patient relationship is within the scope of the act, which by law must be broadly construed. Finally, the judge noted that what the defendant did or did not tell the plaintiff was a factual determination that should be made by the jury.
The defendant also moved to require the plaintiff to have expert testimony to establish whether he misrepresented his level of experience and success rate to the plaintiff. The judge ruled that expert testimony was not necessary to aid the jury in determining whether the defendant misrepresented his expertise with the surgery or deciding whether the defendant misstated his success rate. However, expert testimony would be required to establish whether his failure to make affirmative disclosures relating to his expertise or experience actually constituted “a deceptive or unconscionable act or practice,” because, without establishing a duty to so disclose, there is no deception. The district court reversed and found for the defendant, essentially ruling that a duck is duck: the plaintiff’s claim was for medical malpractice and lack of informed consent, the KCPA applies only to the business aspects of professional practice, and the KCPA was never designed to address these types of issues. This appeal ensued.
The Kansas Supreme Court first looked at the last issue: whether the KCPA covered these types of issues. The court noted that the function of reviewing courts is to look at the legislature’s intent in writing the law. The court noted that “[w]hen a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” Turning to the relevant statute, the court noted that the KCPA “shall be liberally construed to promote the following policies: (a) To simplify, clarify, and modernize the law governing consumer transactions; and (b) To protect consumers from suppliers who commit deceptive and unconscionable practices.” The statute defines a consumer as one “who seeks or acquires property or services for personal, family, household, business, or agricultural purposes.” A supplier was defined as a “person who in the ordinary course of business solicits, engages, or enforces consumer transactions.” Consumer transaction was defined by the legislature as a “sale, lease, assignment or other disposition for value of property or services . . . to a consumer.” Finally, services was defined as “work, labor, and other personal services and any other act performed for a consumer by a supplier.” The Kansas Supreme Court found no problem in ascertaining that the provision of medical services by a surgeon to a patient easily falls within the broad scope of the language as defined by the Kansas legislature. The court also noted that certain transactions by specific groups were explicitly excluded from the act; therefore, the court stated that the legislature certainly knew how to exclude doctors if it had wanted to do so.
The court extensively reviewed case law from other jurisdictions, and one of the most meaningful distinctions was found in a Washington case, in which the court stated that, although consumer protection acts did not govern disputes arising from the actual competence of physicians, they could easily attach to a claim for lack of informed consent if it related to the entrepreneurial aspects of medical practice, because such claims do not relate to standard-of-care issues but, rather, “can be based on dishonest and unfair practices used to promote the entrepreneurial aspects of a doctor’s practice, such as when a doctor promotes an operation or a service to increase profits and the volume of patients, then fails to adequately advise the patient of risks or alternative procedures” (cit. omit.).
Addressing the argument that common law remedies are available via a medical malpractice action, the defense cited a case that held the following: “[a]s malpractice covers every way in which a patient is injured through the dereliction of a doctor in his professional capacity, the approach, depending on the facts, can be through any of several familiar forms of action. But no matter what the approach, it remains an action for malpractice, not one for deceit, contract, or anything else” (cit. omit.). The court ultimately decided the issue by stating that, although the defendant’s argument was cogent, nothing prohibits the legislature from creating a statutory remedy, such as the KCPA, even though common law remedies abound.
As to the issue of whether expert testimony was required, the court ruled for the defendant. Although somewhat convoluted and subject to the argument that one is splitting hairs, the court reasoned that, first, in an informed consent case, expert testimony is required to establish a physician’s duty to make disclosures that were in accord with those made by reasonable medical practitioners under the same or similar circumstances. The plaintiff in this case argued that, although that might be good and well, the KCPA does not look at whether the doctor’s disclosures were what other reasonable doctors would have disclosed; the real question was whether the information disclosed was what a reasonable patient needed to know, since the patient was defrauded. The court looked at the purposes of an expert witness: to distill information that is too complex to fall within a layperson’s common knowledge or to explain material that is beyond a layperson’s capability to understand without help.
Under K.S.A. 50-626(b)(3), deception by failing to fully disclose material information requires proof of “willful” failure to state the material information, or the willful concealment, suppression, or omission of a material fact. Here’s the good part: before one can willfully fail to disclose anything, there must be an obligation to disclose it in the first place. The KCPA noted that “a party has a duty to disclose material facts if the party knows the other party is entering a transaction under a mistake as to the facts and the other, because of the relationship between them, the customs in trade, or other objective circumstances, would reasonably expect disclosure of such facts ” (emphasis in original). In short, the court ruled that expert testimony is required to prove that the nature of the disclosures, quasi-disclosures, or frank nondisclosures are or are not in keeping with what other reasonable practitioners would or would not do under the same or similar circumstances. The trial court’s decision was affirmed in part, reversed in part, and remanded for further determination.
So, what’s the bottom line? Just for the moment, forget about common law? Forget about consumer protection statutes? Forget about every legal trick that could allow a patient to bring a cause of action against a health care practitioner? None of it matters. For over 100 years, the American Dental Association’s Code of Ethics has stated that we should guide ourselves by the golden rule—you know, do unto others as you would have them do unto you.
Since the US Supreme Court ruled in the mid-1970s to allow advertising in our profession, many would argue that some of us have overstepped certain boundaries and that the hucksters and charlatans have created a situation whereby state legislatures have felt the need to step in. Consumer protection acts are one of these intercessions. Let’s be honest. Is there anyone reading this who doesn’t believe that a patient has a right to know the truth about the effectiveness of a recommended procedure or the treating doctor’s success rate when rendering the treatment? Put it another way: is there anyone reading this who believes it is okay to mislead a patient by misstating the effectiveness of a certain therapeutic intervention?
Now that we’re all on the same page, what’s my point? My point is that when we have evidence that XYZ procedure is either effective, equivocal, or ineffective, and to what degree, we have an obligation to transmit that information to the patient. It’s what reasonable patients want to know. Oh, and for you guys and gals practicing in states that require disclosure based on what other reasonable doctors would disclose to patients under the same or similar circumstances, from a bioethical perspective, it’s a flimsy curtain to hide behind. The same thing goes for your experience using XYZ appliance or approach. If a cardiothoracic surgeon or neurosurgeon was about to wield a scalpel over you, you can bet the farm that you would want to know those exact pieces of information.
I know some orthodontists who don’t critically review the literature. They have practiced successfully, so they say, for decades, doing what they do, how they do it, so on and so forth. They have their position in the community and a certain reputation with which they are comfortable; fair enough. How can I say that? Because, “fair enough” cuts both ways. If you are going to believe that the emperor is wearing clothes when he is not, if you are going to say what you think people want to hear to get them to accept your treatment plan, then you have every reason and right to expect that someday someone will use a consumer protection statute against you. How can I say that? It’s easy. After all, doing unto others cuts both ways, too.