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Archive for Saturday, February 10, 2007

Physician conduct ruled to fall under consumer protection act

February 10, 2007

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— The Kansas Consumer Protection Act can apply to a physician's conduct in providing treatment to a patient, but expert testimony may be required to prove a claim, the state Supreme Court ruled Friday.

The 5-2 decision is the first time the state's highest court has addressed the issue of whether professional conduct by physicians in providing care falls under the consumer protection act.

The court concluded there's nothing in the law exempting physicians, although it suggested the Legislature could change that. The case was returned to Sedgwick County District Court for trial on the claims.

"The plain language of the KCPA is broad enough to encompass the providing of medical care and treatment services with a physician-patient relationship," the court held.

"A physician is, in the ordinary course of business, a seller or supplier of services. A patient is a consumer of those services for personal, family or business purposes. The sale of those services is a consumer transaction," it said.

In a dissenting opinion, Justice Robert E. Davis said Kansas statutes distinguish medical and health care professionals from supplier-consumer transactions covered by the consumer protection act. He was joined by Chief Justice Kay McFarland.

Potentially damaging

The ruling arose from a lawsuit in which Tracy Williamson, of Parker, claims Dr. Jacob Amrani, now in Scottsdale, Ariz., told her in 1999 that the back surgery he recommended had a high likelihood of relieving pain, when it was unsuccessful in the majority of cases where Amrani used the same procedure.

The trial court ruled a year ago that the consumer protection act didn't apply to physicians and Williamson appealed. The act allows the attorney general's office, or a consumer, to bring a civil action against someone accused of deceptive practices.

Williamson's attorney, Michael Hodges of Lenexa, called it a mixed ruling.

"The jury ought to be able to determine if it is reasonable to be told certain things by a physician. We will be required to have an expert say whether what was said in this case departed from what a reasonable physician would have told a patient in order to prove a deceptive act," Hodges said.

Steve Day, the Wichita attorney representing Amrani, said similar cases in other states have resulted in the professional conduct of physicians not coming under consumer protection scrutiny.

"This is going to be damaging to the medical profession. I think it will have the potential for increasing malpractice insurance," Day said.

Impact unknown

But Mark Stafford, Kansas Board of Healing Arts chief counsel, said it's too soon to say what the impact might be.

"In the past, there was a general feeling that the consumer protection act was not a means of regulating professional services and this kind of establishes that if a physician has willfully violated the act, then a cause of action can be brought," Stafford said.

He said the question will be how the ruling will be used.

"What we need to watch is whether this is going to be applied in typical malpractice cases or whether it will be applied only whether there is a deceptive act connected to patient care. That will be decided by future litigation," he said.

Stafford said in many instances, a physician who violates the consumer protection act also could face sanctions from the healing arts board.

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