The plaintiff had always suffered from severe myopia. Having heard about radial keratotomy, he sought opinions from several practitioners, all of whom said he was not a candidate. Fast forward 5 years. Advances were made in ophthalmology, and the plaintiff now saw someone advertising that radial keratotomy can cure nearsightedness. Relying on the truth of the advertisement, the plaintiff consulted the defendant doctor. The plaintiff stated that his goal was “to be able to see clearly without the aid of eyeglasses or contact lenses.” The doctor told the plaintiff that due to recent advances in the field he would be able to “improve the plaintiff’s uncorrected vision to 20/40 or 20/50 in his left eye and 20/20 in his right eye” and that he had successfully done so for a number of patients and that “he believed that the plaintiff was a candidate for this procedure.” Obviously, the treatment did not go as expected. Over the next 2 years, the plaintiff returned for multiple corrective surgeries but to no avail. He ultimately had to go back to wearing glasses, and his vision was impaired from the point at which he started. These are essentially the facts in Albert Janusauskas v. Richard A. Fichman (SC 16823, July 22, 2003). My questions to you at this point are the following. Did the doctor’s statements induce the plaintiff to undergo the procedure, and did they create an implied contract so that the doctor could be held to having to meet the “promises/representations” put forth?
A second set of facts was also described in the case. Shortly before the operation, the plaintiff was given a true/false quiz entitled “Radial Keratotomy Informed Consent.” The correct answers were then gone over with the defendant by a member of the defendant’s staff. Then the plaintiff signed a form that stated “I have taken the informed consent quiz and am satisfied with my understanding of the procedure.” In addition, the plaintiff signed a second general consent form that stated “The results of surgery cannot be guaranteed.” The plaintiff was also given informational materials explaining the radial keratotomy procedure. A week later, the operation was performed.
The lawsuit claimed medical malpractice and lack of informed consent, breach of contract, and violation of the Connecticut Unfair Trade Practices Act (CUTPA) as found in General Statutes §42-110a et seq. The trial court granted the defendant a directed verdict regarding the breach of contract and CUTPA claims, holding that the breach of contract claim was merely a misunderstanding by the plaintiff of the defendant’s confidence in the procedure, and thus there was no real “meeting of the minds” so that one could construe that a contract existed, and the CUTPA claim failed because it did not pertain to the entrepreneurial aspects of the defendant’s practice. On the medical malpractice and informed consent claims, the jury found in favor of the defendant. These results precipitated the first appeal. The appellate court reversed the trial court, finding that a jury could have concluded that an implied contract existed but upheld the finding that there was no CUTPA violation. The case was then appealed to the Connecticut Supreme Court.
The Supreme Court noted that it doesn’t matter whether the claim was for an express or implied contract since they are both contracts subject to breaches and are different only in their matter of assent. The court then provided the following example of a true implied contract.
A true implied…contract can only exist…where there is no express one. It is one which is inferred from the conduct of the parties though not expressed in words. Such a contract arises where a plaintiff, without being requested to do so, renders services under circumstances indicating that he expects to be paid therefor, and the defendant, knowing such circumstances, avails himself of the benefit of those services. In such a case, the law implies from the circumstances, a promise by the defendant to pay the plaintiff what those services are reasonably worth. (cit. omit.)
The plaintiff based his theory on the “promise” that he would get “20/40 or 20/50 vision in the left eye and 20/20 in the right eye.” Because the jury did not agree that the facts supported finding the existence of a contract based on that promise (it was more of an optimistic expectation than a promise), the court reversed the appellate court and reinstated the finding for the defendant.
The court then addressed the CUTPA claim by restating findings from other court holdings that have addressed this issue by noting the following.
We previously have concluded that, although physicians and other health care providers are subject to CUTPA, they may be liable only for “unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of the entrepreneurial, commercial, or business aspect” of the practice of medicine.
The practice of medicine may give rise to a CUTPA claim “only when the actions at issue are chiefly concerned with ‘entrepreneurial’ aspects of practice, such as the solicitation of business and billing practices, as opposed to claims directed at the ‘competence of and strategy’ employed by the…defendant.”
The touchstone for a legally sufficient CUTPA claim against a health care provider is an allegation that an entrepreneurial or business aspect of the provision of services is implicated, aside from medical competence or aside from medical malpractice based on the adequacy of staffing, training, equipment or support personnel. Medical malpractice claims recast as CUTPA claims cannot form the basis for a CUTPA violation.
To hold otherwise would transform every claim for medical malpractice into a CUTPA claim. Accordingly, within this framework, we must review the plaintiff’s allegations of CUTPA violations and look to the underlying nature of the claim to determine whether it is really a medical malpractice claim recast as a CUTPA claim.
This representation is simply what all physicians and health care providers represent to the public—that they are licensed and impliedly that they will meet the applicable standards of care. If they fail to meet the standard of care and harm results, the remedy is not one based upon CUTPA, but upon malpractice. (All Cits. Omit.)
Finally, the court addressed the actual advertising. The plaintiff claimed that the advertisements constituted aggressive marketing of the defendant’s practice, thus making it into a “profit center.” The court noted that “Although the defendant’s advertising was, independent of the other evidence proffered by the plaintiff, entrepreneurial in nature, the plaintiff has not shown that this advertising was unfair, unconscionable or deceptive.” Again, the supreme court upheld the appellate court’s finding for the defendant.
It next addressed the informed consent claim. Connecticut, like most states, uses the “patient need to know” standard of care. It essentially holds that a physician is obligated “to provide the patient with the information which a reasonable patient would have found material for making a decision whether to embark upon a contemplated course of therapy.” Because the jury found no basis for believing or inferring that the defendant did not meet his obligation given the material supplied and the consent forms signed, the court once again found for the defendant.
The times, they are a changing. A generation or so ago, one saw very few claims based on a state’s consumer protection statute. For a number of reasons, the shifting sands of time have made this type of litigation more attractive. Some of the more common reasons are that expert witnesses may not be required, treble damage awards are available, it is possible to be awarded attorney’s fees, statutes of limitations are more favorable, and often exemptions from medical malpractice tort reform litigation are available. All one needs to do is find that the doctor acted in an unfair, unconscionable, or deceptive manner.
I don’t think that too much of what we do is unconscionable. Unreasonable? Maybe, sometimes. But truly unconscionable? Short of boldface lies, unconscionable is hard to envision. Unfair? Okay. Maybe a little more often than unconscionable but still not a big player in my opinion. Deceptive? Well now, that’s another story. I think we have, if not plenty to go around, at least enough to go around. Look at all the false claims that are being spread like so much oleo all over the Internet and through other media. Magic brackets and wires. Gizmos and widgets that make teeth fly. Cranial manipulations to affect growth. Airway treatments based on specious evaluations. Certifications from bogus organizations. I could go on, but why bother? We all know what is being said out there; to me, most of it defines the terms deceptive and misleading .
Why aren’t we doing more about it? Good question. Mother England is, but then again, she’s not us, and we’re not her. Good old American toleration, bordering on apathy, resonates, and it is backed by the constitutional protection of freedom of speech and expression. So now what? Maybe it’s time to turn to our Principles of Ethics and Code of Professional Conduct.
The Preamble states that “These Principles express the recognition of members’ responsibilities to the public, patients, other health care professionals and colleagues. These Principles guide members in the performance of their professional responsibilities and express the basic tenets of ethical and professional conduct. They call for an unwavering commitment to honorable behavior, without regard to personal advantage.” It also notes that although violation of the law may result in civil or criminal liability, violations of the Code may result in censure, suspension, or expulsion from the Association. Maybe, just maybe, if the tiger ever used its teeth, some of this stuff would stop. The following are just a few of our Principles and codifications that address deceptive and misleading practices.
Principle and Advisory Opinion I-C.
Members shall make treatment decisions and render all related opinions and recommendations based on the best interest of the patient without regard to a member’s direct or indirect financial or beneficial interest in a product or service, or direct or indirect relationship with the manufacturer or supplier of such product or service.
Principle and Advisory Opinion I-E.
A second opinion…must be honest and focus on the facts presented. It is unethical to propound a specific technique, philosophy, training or ability as superior without acknowledging that each orthodontist uses different techniques based on training and experience, and that the second opinion is based on an orthodontist’s individual perspective. A second opinion must disclose to the patient any conflict of interest of the member providing the opinion.
Principle and Advisory Opinion IV-D.
Members shall not misrepresent the care being rendered to a patient.
Principle and Advisory Opinion V.
Members shall ensure that their public statements, announcements of services and promotional activities for providing information to aid the public, patients and/or other health care providers in making informed decisions, are not false, deceptive or misleading in any material respect.
Principle and Advisory Opinion V-A.
Members must have a reasonable basis to believe that their public statements with respect to their practice or the specialty are true.
Statements should be avoided that contain a representation or implication regarding the quality of orthodontic or other health care services, which (a) suggest superiority relative to other practitioners, unless it is acknowledged that each orthodontist uses different techniques based on training and experience, and that such claim is the orthodontist’s individual perspective, and/or (b) are not susceptible to reasonable verification, by the public, and/or are intended or likely to create an unjustified expectation about results that can be achieved.
Principle and Advisory Opinion V-D.
In addition to other rules, in any public statements, announcements of services, and promotional activities, all claims made or utilized by members must be supported by scientifically reliable evidence.
We are coming to a crossroad. We have our profession being assaulted from the outside via nonorthodontists increasing their market share of orthodontic services provided. This is as it should be, if they have sufficient training to render orthodontic therapy while conforming to the standard of care. We have a patient pool that is “self-medicating,” and this population is being spurred on by—well, let’s just say that they are being provided the environment to do so by nonorthodontists. We are being assaulted by dental service organizations that are not only affecting the provision of services but also having an arguable impact on those providing the services. We are being assaulted from within by those who see nothing wrong with buying snake oil and reselling it and at the same time undercutting their colleagues often by questionable means.
If we do not adequately police ourselves vis-a-vis certain unfair, unconscionable, or deceptive practices as are embraced by some in our ranks (self-policing is a hallmark of any profession), we have a legal system that exists in part to do just that for us. This is accomplished by consumer protection statutes that provide an entrance into the legal arena and jurisprudential oversight that provides the muscle to effect an outcome. I’m pretty sure that none of us wants to pay a visit to and play in that arena if we don’t have to.