Consumer fraud liability for physicians?

Williamson v. Amrani, --- P.3d ----, 2007 WL 419698 (Kan.)

The Kansas Supreme Court held that the Kansas Consumer Protection act applies to physicians’ statements to patients in the course of providing care or treatment. Allegations of willful failure to state material facts or willful concealment of material facts, however, require expert testimony that a reasonable medical practitioner would make those disclosures under similar circumstances.

Williamson sought treatment from Amrani for an old, disabling back injury. Amrani recommended surgery involving a surgical device and a bone graft. After surgery, Williamson was still experiencing pain, and Amrani recommended a second surgery removing the device. Williamson’s suit alleged that Amrani made misrepresentations about the benefits of the surgery – specifically, that it had a high likelihood of successfully relieving her pain and allowing her to return to work, when in fact the surgery had been unsuccessful in the majority of cases Amrani had performed it. She also alleged that Amrani willfully misrepresented or concealed material facts in that he knew or should have known that the surgery had “bad results” for a majority of his patients.

Amrani argued that the KCPA doesn’t apply to doctors’ professional conduct, and that the KCPA claims were an impermissible attempt to plead malpractice. The trial court rejected this general assault, but did grant his motion to require expert testimony about whether Amrani had a duty to disclose particular facts. No expert testimony was required to establish whether Amrani affirmatively misrepresented his experience or success rate.

Prior to trial, a different judge ruled that Amrani was entitled to judgment as a matter of law, because the KCPA doesn’t cover the medically-oriented interactions of a patient with a doctor. Given that the plain language of the law was broad enough to cover physician-patient relationships, that doctors were not covered by one of the law’s specific exclusions, and that other states had enacted specific exceptions for physicians when that furthered state policy, the Supreme Court reversed.

As for the expert testimony requirement, Williamson argued that, while a negligence action focuses on whether a doctor has met the applicable standard of care, here, what information a reasonable doctor would disclose under similar circumstances, a KCPA claim should be based on what information a reasonable patient would consider important. Given the complexity of the subject matter, the court agreed that expert testimony would be required to establish a duty to disclose, though not to establish an affirmative misrepresentation. This difference is a consequence of the distinction that state consumer protection statutes generally make between affirmative statements and failures to disclose, the latter of which generally have to be willful. Before there can be a willful failure to disclose, the court ruled, there has to be a duty to communicate the fact. And here, duty can only be established with reference to the standards of the profession. (This strikes me as special pleading for doctors – which may be justified; but asking whether doctors would consider it important to disclose something is different from asking whether patients would consider it important.)

Two justices dissented, and would have held that applying the KCPA is inconsistent with the statutory and regulatory schemes governing physicians’ conduct.