RACHEL M. FRANKENY, APPELLANT, v. DISTRICT HOSPITAL PARTNERS, LP, ET AL., APPELLEES.
No. 18-CV-628
DISTRICT OF COLUMBIA COURT OF APPEALS
Decided February 27, 2020
Argued June 19, 2019
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Appeal from the Superior Court of the District of Columbia (CAB-3349-16)
(Hon. Florence Y. Pan, Trial Judge)
Jacob M. Lebowitz for appellant.
Christopher M. Corchiarino, for appellees. Thomas V. Monahan, Jr. and Jhanelle A. Graham Caldwell were on the brief.
Before BLACKBURNE-RIGSBY, Chief Judge, THOMPSON, Associate Judge, and RUIZ, Senior Judge.
We conclude that the trial court erred in requiring Ms. Frankeny to provide evidence of an “entrepreneurial motive” to sustain her CPPA claims against GWUH. Under
I. Factual Background
The record viewed in the light most favorable to Ms. Frankeny, as the non-moving party, is as follows. In 2013, Ms. Frankeny suffered from sleep apnea and sought the care of Dr. Thomas Troost, a board certified otolaryngologist (ear, nose, and throat surgeon) who practiced at The George Washington University Hospital. At Dr. Troost‘s recommendation, Ms. Frankeny agreed to a bilateral tonsillectomy to treat her sleep apnea. Ms. Frankeny signed two Patient Authorization Forms, one on May 7, 2013, during a preoperative assessment, and another on May 9, 2013, the day of the surgery. In relevant part, both Patient Authorization Forms stated that Ms. Frankeny understood that, “The George Washington University Hospital is a teaching hospital,” and that her “health care team will be made up of hospital personnel (to include nurses, technicians, and ancillary staff) under the direction of my attending physician and his/her assistants and designees (to include interns, residents, fellows and medical students).”
On May 5, 2016, Ms. Frankeny filed suit against GWUH for not disclosing Dr. Mai‘s involvement, which she argues was a material misrepresentation of services rendered in violation of the CPPA. See
II. Legal Framework
We review de novo the trial court‘s grant of summary judgment. Briscoe v. District of Columbia, 62 A.3d 1275, 1278 (D.C. 2013). Summary judgment is appropriate if there are no disputed issues of material fact and the record conclusively shows that the moving party is entitled to judgment as a matter of law. Id. Determining which facts are material depends on the elements of the cause of action, for
A. The Consumer Protection Procedures Act
“The District of Columbia Consumer Protection Procedures Act affords a panoply of strong remedies, including treble damages, punitive damages and attorneys’ fees, to consumers who are victimized by unlawful trade practices.” Ford v. Chartone, Inc., 908 A.2d 72, 81 (D.C. 2006) (citation and internal quotation marks omitted). The Act is “construed and applied liberally” and establishes a consumer‘s “right to truthful information about consumer goods and services” that are purchased or received in the District of Columbia.
A consumer need not prove that she was “misled, deceived, or damaged” by a merchant‘s actions.
misrepresentation, the statute merely provides that it is a violation of the CPPA if the merchant “misrepresented” or “failed to state” a material fact. Id. Consequently, we held that the fact that the D.C. Council did not expressly state that a merchant must “knowingly” or “intentionally” misrepresent or fail to state a material fact meant that intentionality is not required under
To be sure, we have not yet had occasion to decide whether intentionality is required to claim a violation of the CPPA under
we now hold that intent or knowledge is not required under these provisions, as we did with claims of misrepresentation under
For purposes of
B. CPPA Claims Against Medical Service Providers
Historically, “learned professions” were not considered a “trade” subject to consumer protection laws. See Quimby v. Fine, 724 P.2d 403, 405 (Wash. Ct. App. 1986).8 When enacted, the CPPA specifically prohibited the District‘s Department of Consumer and Regulatory Affairs (DCRA) from applying the CPPA to the “professional services of clergymen, lawyers, practitioners of the healing arts and Christian Science practitioners engaging in their respective professional endeavors,”
Any limitation of the CPPA with respect to the practice of medicine, however, ended in 1991 when the D.C. Council amended the statute and deleted “practitioners of the healing arts” from
We acknowledge that some courts have limited the reach of consumer protection laws to the practice of medicine, expressing concern that lawsuits brought under consumer protection laws may blur the line between consumer protection and medical malpractice claims or render the “well-developed body of law concerning medical malpractice . . . obsolete.” Nelson v. Ho, 564 N.W.2d 482, 486 (Mich. Ct. App. 1997). Accordingly, some courts have attempted to distinguish between traditional medical malpractice claims, which pertain to the “actual performance of medical services or the actual practice of medicine,” from consumer protection claims, which pertain to “allegations of unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of the entrepreneurial, commercial, or business aspect of a physician‘s practice.” Id. Only the latter fall within the definition of “trade or commerce” and are thereby encompassed within consumer protection laws. Id. The federal district court in Dorn I and II sought to adopt this distinction, concluding that a consumer claiming a violation of the CPPA against a medical service provider must present evidence of an “entrepreneurial nexus” between the alleged misrepresentation and the “economic considerations related to the medical profession,” which “does not cover the skill or performance of a medical practitioner.” Dorn I, 121 F. Supp. 2d at 19-20; see also Dorn II, 157 F. Supp. 2d at 48. Contrary to GWUH‘s assertion, and despite having the opportunity to do so, we have not adopted the holdings in Dorn I and II and the “entrepreneurial nexus” requirement for CPPA claims related to the practice of medicine. See, e.g., Caulfield, 893 A.2d at 979 (“[W]e need not
There is no statutory basis for adopting an “entrepreneurial nexus” for CPPA claims related to the practice of medicine, as the statute does not create any limitation in defining medical services as a “trade practice.” Rather, the D.C. Council amended the CPPA to fully include medical professionals within the statute‘s coverage. Appellees claim that CPPA claims should be applied “more restrictively” in the context of medical services to “ensure that medical malpractice claims are not improperly brought . . . as consumer protection claims.” However, any concern that the line between CPPA claims and traditional medical malpractice claims will be blurred appears to be overstated. While a rare medical malpractice case may also meet the elements of a CPPA claim, the two have different elements, require different types of evidence, and permit different types of damages.11 The elements of a CPPA claim and medical malpractice claim are very different: unlike those pursuing a medical malpractice claim, claimants under the CPPA need not prove a doctor/hospital-patient relationship giving rise to a duty of care, the strictures of an applicable standard of care, violation of that standard of care, causation, or injury. Morrison v. MacNamara, 407 A.2d 555, 560 (D.C. 1979). Moreover, the type of evidence that must be presented is also different, as a medical malpractice claim will usually require expert evidence to establish the standard of care, see Snyder v. George Washington Univ., 890 A.2d 237, 244 (D.C. 2006) (“Expert testimony is typically required to establish each of the three elements [in a medical malpractice case] except where proof is so obvious as to lie within the ken of the average lay juror.” (internal citations and quotations omitted)), which is not required (though may be relevant) to a CPPA claim.
We expressly hold that there is not a different burden of proof for “general” CPPA claims and those against medical service providers, and a consumer is not required to proffer evidence of an “entrepreneurial motive” or an “entrepreneurial nexus” for the latter. Moreover, our cases have rejected the need for a consumer to prove a showing of “motive” or intent in connection with CPPA misrepresentation claims under
By rejecting the entrepreneurial nexus, we do not eliminate all restraints on the CPPA‘s reach to the medical profession. The Supreme Court, in recognizing that the anticompetitive conduct of lawyers falls within the reach of federal antitrust laws, acknowledged that it is “unrealistic to view the practice of [learned] professions as interchangeable with other business activities, and automatically to apply to the professions antitrust concepts which originated
Similarly here, we acknowledge that certain aspects of the practice of medicine, such as those premised on public service or ethical norms, may lend necessary context to evaluate a medical professional‘s conduct and determine whether it can support a CPPA claim. See, e.g., Arizona v. Maricopa Cty. Med. Soc., 457 U.S. 332, 348-49 (1982) (holding that doctors’ price-fixing agreements were “not premised on public service or ethical norms” and therefore fell within the scope of federal antitrust laws). Because we find any such limitation to be inapplicable here, however, we decline to address the contours of such an exclusion.
III. Summary Judgment
With this legal framework in mind, we turn to the question of whether the trial court erred in granting GWUH‘s motion for summary judgment. Ms. Frankeny claims that GWUH‘s failure to inform her of Dr. Mai‘s role in her surgery constituted misrepresentation or a failure to state a material fact under the CPPA, in violation of
Consequently, on this record, we conclude that Ms. Frankeny presented sufficient evidence to survive summary judgment on her CPPA misrepresentation claims, and to proceed to trial. The evidence viewed in the light most favorable to Ms. Frankeny demonstrates a material factual dispute as to whether GWUH made a misrepresentation or failed to disclose material information. Ms. Frankeny believed that the surgery would be performed by her surgeon of choice, Dr. Troost, and the Patient Authorization Forms did not state that a resident, such as Dr. Mai, could perform the surgery. The language used in the forms, namely, that residents or medical students would be “involved” in her care, is at best ambiguous as to whether she was informed that a resident might perform the surgery. The forms do not disclose that someone other than Dr. Troost could perform the surgical procedure, only that others may serve as part of her “health care team” (which included
Further, the evidence viewed in the light most favorable to Ms. Frankeny supports and would permit a jury to find that the misrepresentation or failure to disclose information was material. Saucier, 64 A.3d at 442. A reasonable person could attach importance to the difference in experience between a first-year medical resident such as Dr. Mai and a seasoned board-certified surgeon such as Dr. Troost. Ms. Frankeny testified that GWUH‘s failure to inform her of Dr. Mai‘s role would have affected her decision to undergo the surgery. Further, Ms. Frankeny presented an expert witness who testified that a hospital should disclose a resident‘s role in the patient‘s surgery, further supporting her assertion that GWUH‘s omission of that information was material. Ms. Frankeny also referenced a 2012 Journal of the American Medical Association article which indicated that a hospital such as GWUH should have reasonably known that a resident‘s involvement in a medical procedure could potentially affect the patient‘s decision.
Taken together, the evidence was sufficient to place into dispute whether GWUH misrepresented a material fact that a reasonable person would consider in making decisions regarding medical treatment, and the case therefore should have proceeded to trial to resolve these factual questions. Consequently, we reverse the grant of summary judgment.
At present, there is no concern that Ms. Frankeny is blurring the line between CPPA claims and traditional medical malpractice claims, or raising public service or ethical considerations, that would require us to recognize any limitation on the CPPA‘s reach to the practice of medicine. Appellant‘s CPPA claims are based solely on GWUH‘s alleged misrepresentation in failing to adequately inform her of who would be performing the surgery. The crux of Ms. Frankeny‘s claims is that GWUH misrepresented, intentionally or unintentionally, who would be performing her surgical procedure, without regard to whether she was actually misled, injured, or suffered damages;13 these CPPA claims do not, in and of themselves, pertain to the quality of the medical service provided. Rather, our conclusion is bolstered by the fact that Ms. Frankeny filed a separate medical malpractice suit against GWUH, based on the alleged deficiencies in the performance of the surgery and the alleged injuries resulting therefrom. See supra note 4. That suit required proof that the manner in which the medical providers performed their medical functions failed to comport with the standard of care, that the providers’ breach of the standard of care was the proximate cause of her injuries, and that she suffered damages resulting therefrom. See Morrison, 407 A.2d at 560. The existing framework allows litigants and courts to distinguish, as necessary,
IV. Conclusion
For the abovementioned reasons, we vacate the grant of summary judgment in GWUH‘s favor, and remand for this case to proceed to trial.
So ordered.
Notes
(a) represent that goods or services have a source, sponsorship, approval, certification, accessories, characteristics, ingredients, uses, benefits, or quantities that they do not have;
. . .
(d) represent that goods or services are of particular standard, quality, grade, style, or model, if in fact they are of another.