TRACY WILLIAMSON, Appellant, v. JACOB AMRANI, M.D., Appellee.
No. 95,154
Supreme Court of Kansas
February 9, 2007
227 Kan. 227 | 152 P.3d 60
Michael L. Hodges, of Law Office of Michael L. Hodges, of Lenexa, argued the cause and was on the briefs for appellant.
Steven C. Day, of Woodard, Hernandez, Roth & Day, L.L.C., of Wichita, argued the cause, and Chris S. Cole and Nancy Ogle, of the same firm, were with him on the brief for appellee.
Per Curiam: This case raises the question of whether the Kansas Consumer Protection Act (KCPA),
This case arose after Tracy Williamson sought treatment from Jacob Amrani, M.D., for a disabling back injury Williamson had
Williamson filed suit against Dr. Amrani. In an amended petition, Williamson alleged that Dr. Amrani engaged in deceptive acts and practices in violation of
At the time of her deposition Williamson testified that, prior to the first surgery, Dr. Amrani told her the surgery would relieve her pain to the point where she would no longer need pain medication and would be able to return to work.
Dr. Amrani filed a motion for summary judgment arguing that the KCPA does not apply to a physician‘s professional conduct in providing care and treatment to patients and that Williamson‘s KCPA claims were an impermissible attempt to creatively plead medical negligence (malpractice).
District Judge Timothy G. Lahey overruled Dr. Amrani‘s motion, finding that the KCPA applied. Noting that the KCPA must be liberally construed to bring consumer transactions within its scope, Judge Lahey found that, under the KCPA, the physician is a supplier and the patient is a consumer. Further, he found that
Dr. Amrani subsequently filed a second motion for partial summary judgment arguing that, even if the KCPA applied, Williamson would be required to produce expert testimony to establish her claim that Dr. Amrani should have informed her of his personal experience and success rate in performing the medical procedure at issue. Williamson had not identified any such expert witness.
Judge Lahey granted Dr. Amrani‘s motion, ruling that, while expert testimony would not be required to establish whether Dr. Amrani affirmatively misrepresented his level of experience or success rate in recommending the surgery to Williamson, expert testimony would be required to establish whether his failure to make an affirmative disclosure of his level of experience or success rate constituted a deceptive or unconscionable act or practice. Judge Lahey stated: “In the absence of expert testimony establishing a duty on the part of the doctor to disclose his experience to a patient, plaintiff does not establish a deceptive act.”
Prior to the scheduled trial, Dr. Amrani filed several motions in limine to exclude certain evidence. At a hearing on those motions, a different judge, District Judge Warren M. Wilbert, informed the parties that he had recently ruled in another case that the KCPA does not apply to a physician‘s professional treatment of a patient, that he remained strongly of that view, and that he would likely rule that way at the time of a motion for directed verdict. In order to avoid the cost of trial and to conserve judicial resources, the parties agreed it would be more appropriate for the court to take up the matter on Dr. Amrani‘s request to reconsider his motion for summary judgment. Judge Wilbert then ruled that Dr. Amrani was entitled to judgment as a matter of law, making the following conclusions of law:
“1. The issues of what disclosures a surgeon should make to a patient regarding risks, benefits and the likelihood of success of the proposed surgery falls under an area of the law of medical malpractice known as informed consent. A claim
that a physician provided inadequate or inappropriate informed consent involves the professional aspect of a physician‘s practice as opposed to the proprietary, business aspects of the physician‘s practice; “2. The Kansas Consumer Protection Act may under certain circumstances apply to the conduct of a physician in dealing with a patient. Application of the act, however, is limited to the proprietary and business aspects of a physician‘s practice and does not apply to the physician‘s professional conduct in providing treatment to a patient;
“3. The issue of whether, under the particular circumstances of this case, Dr. Jacob Amrani, as an orthopedic surgeon, should have provided a less optimistic appraisal of the likelihood of the surgery providing pain relief and other benefits is a subject intrinsically associated with professional judgment and the standard of care of such nature as to, first, necessitate expert testimony and, second, be of a type the Kansas Legislature did not intend to have adjudicated under the terms of the Kansas Consumer Protection Act.”
Williamson timely appealed the district court‘s ruling granting summary judgment in favor of Dr. Amrani.
APPLICATION OF THE KCPA
First, Williamson essentially contends the district court‘s summary judgment ruling in favor of Dr. Amrani was inappropriate in light of the KCPA‘s application to a physician‘s professional conduct in providing treatment to a patient.
Standard of Review
This court‘s standard of review on summary judgment is well established:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]’ Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002).” Garrett v. Read, 278 Kan. 662, 667, 102 P.3d 436 (2004); see
K.S.A. 60-256 .
“In resolving questions of statutory interpretation, this court follows a cardinal rule of statutory construction:
It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When 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. Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in it.’ [Citations omitted.]” State ex rel. Topeka Police Dept. v. $895.00 U.S. Currency, 281 Kan. 819, 825, 133 P.3d 91 (2006).
The Kansas Consumer Protection Act
Because the legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted, the analysis must begin with a review of the relevant provisions of the KCPA.
The plain language of the KCPA is broad enough to encompass the providing of medical care and treatment services within a physician-patient relationship. A physician is, in the ordinary course of business, a seller or supplier of services. See
Furthermore, the KCPA does specifically exclude certain other persons and transactions from its scope. For example, insurance contracts regulated under state law are specifically excluded from the definition of consumer transactions.
However, not all of the cases cited by Williamson stand for the proposition she advances. For example, Williamson cites Roy v. Young, 278 Kan. 244, 93 P.3d 712 (2004), for the premise that attorneys are subject to the KCPA. In Roy, plaintiff sued his attorney and law firm alleging legal malpractice and violations of the KCPA. The district court granted defendant‘s motion for summary judgment on the ground that plaintiff‘s claims were time barred. On appeal, plaintiff argued that the district court erred in finding that his malpractice claim was time barred, but he made no argument with regard to the court‘s decision that his KCPA claim was time barred. Thus, this court concluded he had abandoned any issue as to the KCPA claim. 278 Kan. at 248. The issue of whether the KCPA applies to claims against attorneys was not decided by the court in Roy.
Williamson also cites State ex rel. Stovall v. Martinez, 27 Kan. App. 2d 9, 996 P.2d 371, rev. denied 269 Kan. 941 (2000), for the premise that insurance claims consultants are subject to the KCPA. In that case, the attorney general alleged that the defendant, an insurance claims consultant, was engaged in the unauthorized practice of law and that his representations to consumers regarding his qualifications violated the KCPA. It is questionable whether an insurance claims consultant who engages in the unauthorized practice of law can be considered a “professional“; thus, this case is of little value in determining whether the KCPA is applicable to professionals generally.
Additionally, Williamson contends that this court has applied the KCPA to physicians in three cases: State ex rel. Stovall v. DVM Enterprises, Inc., 275 Kan. 243, 62 P.3d 653 (2003);
All three of these cases involved actions brought by the attorney general under the KCPA against physicians and companies that sold prescription drugs over the Internet without a physical examination of the patient. In none of the cases did the defendants argue that the KCPA did not apply to the providing of care or treatment within a physician-patient relationship. In both ConfiMed.com and DVM Enterprises, the issue was whether the defendants’ conduct was unconscionable under the KCPA; this court found it was not. DVM Enterprises, 275 Kan. at 251-52, 255; ConfiMed.com, 272 Kan. at 1322-24. In Alivio, the issues on appeal were related to the defendant doctor‘s attempt to set aside a default judgment. See 275 Kan. at 172. None of the three cases directly addressed the issue presented in this case.
Williamson‘s citation of Moore, 273 Kan. 2, is more germane. In Moore, the plaintiff hired the defendant, an engineer, to design a bridge to be built on the plaintiff‘s residential property. After the plaintiff sued, the district court found against the defendant for breach of contract, breach of express warranty, negligence, and violations of the KCPA. The Court of Appeals reversed the judgment as to the KCPA violations, finding that there was no intent to deceive on the part of the defendant. The plaintiff petitioned for review of the Court of Appeals’ holding, and the defendant cross-petitioned for review, questioning the application of the KCPA to professional engineering services.
In analyzing whether the KCPA applied, this court first noted that ”
The defendant argued that, notwithstanding the apparent comfortable fit of the facts within the statutory framework of the KCPA, the KCPA was not intended to cover professional services. In support, the defendant cited Vort v. Hollander, 257 N.J. Super. 56, 607 A.2d 1339 (1992), a New Jersey case which held that state‘s Consumer Fraud Act was not intended to apply to an attorney‘s professional services.
The Moore court distinguished Vort, stating:
“The New Jersey court distinguished the legal profession on the basis that it is regulated exclusively by the state Supreme Court. 257 N.J. Super. at 62. Historically, attorneys were held to be exempt from liability under the Sherman Antitrust Act. That exemption was known as the learned profession’ exemption. The learned profession[s] originally included only lawyers, medical doctors, and clergy. See The Learned Profession Exemption of the North Carolina Deceptive Trade Act: The Wrong Bright Line? 15 Campbell L. Rev. 223, 250-51 (1993).
“However, the application of the KCPA to the legal profession is not before us. The narrow issue before this court is whether the engineering services rendered in the present case are covered by the KCPA. We make no determination here as to application of the KCPA to other professional services.” (Emphasis added.) 273 Kan. at 12.
Dr. Amrani offers several arguments as to why the KCPA would apply to engineers but should not be applied to physicians. These arguments include: cases from other jurisdictions in which it is concluded that those states’ consumer protection statutes do not apply to actions against physicians when medical treatment is the gravamen of the suit; prior cases in this jurisdiction rejecting contract or fraud as the theoretical bases for professional liability suits; and the legislature‘s intent to create an alternative statutory scheme for medical malpractice suits. We will discuss each of these arguments
Application of Consumer Protection or Deceptive Trade Practice Laws to Professional Services in Other Jurisdictions
While Moore only briefly mentioned the traditional learned profession exemption and found it irrelevant to the facts of that case,
After Goldfarb, some states specifically exempted members of learned professions from the coverage under their consumer protection or deceptive trade practices acts (CPA or DTPA). See, e.g.,
Most states, like Kansas, have left it to the courts to determine whether attorneys, physicians, and other learned professionals fall within the coverage of their consumer protection or deceptive trade practice acts. See Flynn, 20 Hamline L. Rev. at 339. Kansas courts have not been squarely faced with the issue of whether the KCPA covers a physician‘s professional conduct in providing medical care or treatment to a patient. However, the issue has been
One of the leading cases to make this distinction was Quimby v. Fine, 45 Wash. App. 175, 724 P.2d 403 (1986). In Quimby, the plaintiff filed a wrongful birth suit against a doctor who had substituted procedures during a tubal ligation surgery without the plaintiff‘s informed consent. The plaintiff brought an action for negligence and unfair and deceptive trade practices under the Washington CPA against the doctor based on theories of liability, negligence, and lack of informed consent.
The defendant doctor argued that the Washington CPA did not apply to either claim. The Quimby court cited Short v. Demopolis, 103 Wash. 2d 52, 61, 691 P.2d 163 (1984), a case which held that “certain entrepreneurial aspects of the practice of law may fall within the ‘trade or commerce’ definition” of the Washington CPA. Quimby extended the holding of Short and concluded that plaintiff‘s negligence claim did not fall within the scope of the Washington CPA “because it relates to the actual competence of the medical practitioner.” 45 Wash. App. at 180. However, the Quimby court held that the plaintiff‘s lack of informed consent claim could fall within the scope of the Washington CPA “if it relates to the entrepreneurial aspects of the medical practice.” 45 Wash. App. at 181. The court noted that a claim for lack of informed consent was not limited to a breach of the professional standard of care but “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 service to increase profits and the volume of patients, then fails to adequately advise the patient of risks or alternative procedures.” 45 Wash. App. at 181.
Williamson cites several other cases which, like Quimby, have held that consumer protection laws can apply to misrepresentations made in professional practice. See Karlin v. IVF America, Inc., 93 N.Y.2d 282, 690 N.Y.S.2d 495, 712 N.E.2d 662 (1999) (patients of in vitro fertilization program who alleged that program had dissem-
Dr. Amrani responds that all of the cases relied upon by Williamson hold that only the entrepreneurial activities of a physician fall under consumer protection laws. Dr. Amrani cites a litany of cases which distinguish between negligence claims and claims involving the entrepreneurial or business aspects of the practice of medicine. While many of the cases set out persuasive policy reasons for exempting purely professional medical treatment from consumer protection laws, there is one significant problem with relying on these cases in Kansas. In making the distinction between professional conduct in the actual practice of medicine and the entrepreneurial or business aspects of the medical profession, the cases generally rely on statutory language stating that the consumer protection or deceptive trade practices act in question applies to those engaging in “trade or commerce.” Most of the cases cited by Dr.
The “trade or commerce” language contained in many states’ consumer protection laws appears to be the source of the entrepreneurial test. However, the KCPA does not contain any similarly restrictive “trade or commerce” language.
In enacting the KCPA, Kansas was one of three states that substantially adopted the Uniform Consumer Sales Practices Act (UCSPA). Ohio and Utah also substantially adopted the UCSPA. Texas adopted an act which has some similar provisions. See 7A (Pt. 1) U.L.A. (UCSPA), pp. 69-70 (2002).
Because Ohio also uses the language of the UCSPA, Kansas has previously looked to Ohio law for guidance in interpreting the KCPA. See State ex rel. Miller v. Midwest Service Bur. of Topeka, Inc., 229 Kan. 322, 324, 623 P.2d 1343 (1981) (independent debt collection agency can be subject to provisions of KCPA under certain circumstances). In this instance, Ohio law is not helpful because Ohio has specifically excluded transactions between physicians and their patients from the definition of “consumer transaction.”
The Kansas Legislature did not enact such an exemption. Rather, the statute applies broadly to services provided by a supplier of services to a consumer. This language is plain and unambiguous. Hence, we must give effect to the intention of the legislature as expressed. We see merit to many if not most of the policy arguments discussed in the cases from other jurisdictions. However, it is not our role to determine public policies; that is the role of the legislature. We must interpret the statute as it is plainly worded and, thus, do not find the authorities from other jurisdictions persuasive.
Common-Law Causes of Action in Kansas
Next, Dr. Amrani argues that Williamson is attempting to creatively plead what is really a claim for medical malpractice. Dr. Amrani cites a series of Kansas cases holding that a plaintiff cannot bring a claim for breach of contract or fraud where the gravamen of the claim is medical malpractice. See Malone v. University of Kansas Medical Center, 220 Kan. 371, 374-76, 552 P.2d 885 (1976) (action for failure of medical center to furnish all needed treatment sounded in tort; action could not be characterized as one in contract in order to avoid bar of governmental immunity); Travis v. Bishoff, 143 Kan. 283, 284-85, 54 P.2d 955 (1936) (action against surgeon for failure to perform operation according to proper surgical practice was one for malpractice even though petition stated action was for breach of contract). Cf. Noel v. Proud, 189 Kan. 6, Syl. ¶ 1, 367 P.2d 61 (1961) (3-year statute of limitations on oral contracts, rather than 2-year statute for torts, applied to patient‘s action against physician for alleged breach of warranty that surgery would not worsen patient‘s condition).
In Bonin v. Vannaman, 261 Kan. 199, 929 P.2d 754 (1996), this court held that where a plaintiff alleged her physician failed to
“This does not mean that a doctor can never be liable for fraud or breach of contract. Instead, this simply means that a fraud or breach of contract cause of action can only be based upon a physician‘s misconduct if that misconduct is beyond a breach of the legal duty which every doctor has the obligation to uphold. [Citation omitted.]
“As this court stated in Noel, 189 Kan. at 10 (quoting Calabrese v. Bickley, 208 Misc. 407, 408-09, 143 N.Y.S.2d 846 [1955], aff‘d as modified 1 App. Div. 2d 874, 150 N.Y.S.2d 542 [1956]):
“‘As 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. A well recognized ground for recovery is where a physician represents that he has the skill to perform a certain operation when in fact he does not. This form of action requires the same elements of proof that an action in fraud requires, yet it could not be successfully disputed that as between the two it is an action for malpractice.“’ (Emphasis added.)” Bonin, 261 Kan. at 210-11.
As a counter to Bonin, Williamson cites Robinson v. Shah, 23 Kan. App. 2d 812, 936 P.2d 784 (1997), a case which held that a physician‘s concealment of underlying malpractice gave rise to a fraud claim separate from the malpractice claim.
Dr. Amrani argues that, as in Bonin, the alleged misconduct in this case was part of the doctor‘s legal duty of informed consent. Williamson responds that knowingly selling a patient a surgery that has a small chance of success, while promising that the surgery has a great chance of success, is more than a mere failure of informed consent—it is a deceptive act or practice under the KCPA.
Bonin and the other above cited cases provide little guidance because they all deal with common-law causes of action. None of the cases deal with a claim under the KCPA, wherein the legislature has provided for a specific statutory cause of action. Furthermore, many of the cases cited by Dr. Amrani are focused on identifying a particular cause of action for purposes of determining the
In Haag, the defendant argued that because the plaintiff‘s KCPA claim was one based on fraud, the 2-year statute of limitations contained in
Although we are not concerned here with the applicable statute of limitations, Haag reinforces the point that actions under the KCPA are statutorily created causes of action. Nothing prohibits the legislature from creating a statutory remedy even in situations where a common-law remedy may be available. The plain language of the KCPA provides such a statutory remedy since a physician provides a service to a consumer.
Statutory Scheme Covering Medical Malpractice Claims
Finally, Dr. Amrani argues that the legislature has set forth a comprehensive statutory scheme specifically for the litigation of medical malpractice cases, which makes it clear that the legislature did not intend for claims against physicians to be remedied under
Dr. Amrani cites Chelsea Plaza Homes, Inc. v. Moore, 226 Kan. 430, 434, 601 P.2d 1100 (1979), as support for the argument that the KCPA does not apply to an area of substantive law that is the subject of other specific legislation. In Chelsea Plaza, this court held that the Kansas Residential Landlord and Tenant Act (KRLTA),
Chelsea Plaza has been distinguished in two federal cases: Skeet v. Sears, Roebuck & Co., 760 F. Supp. 872, 876 (D. Kan. 1991) (KCPA claim not preempted by Kansas Optometric Act in case against Sears for dispensing contact lenses without proper prescription), and Bailey v. Morgan Drive-Away, Inc., 647 F. Supp. 648, 655-56 (D. Kan. 1986) (KCPA claim not preempted by Kansas Corporation Commission‘s regulation of intrastate common carriers; court found “no inherent conflict” between laws).
Williamson accurately points out that there is no single act or all-encompassing statutory scheme concerning medical malpractice comparable to the KRLTA at issue in Chelsea Plaza. While the legislature has passed various pieces of legislation affecting various aspects of medical malpractice litigation, it has not passed any legislation which precludes coverage for medical negligence claims under the KCPA. Cf. Chapman, 826 S.W.2d at 218 (Texas’ Medical Liability Act specifically precludes coverage for medical negligence claims under that state‘s DTPA).
EXPERT TESTIMONY
Williamson also takes issue with Judge Lahey‘s ruling that, while expert testimony would not be required to establish whether Dr. Amrani affirmatively misrepresented his level of experience or success rate in recommending the surgery to Williamson, expert testimony would be required to establish whether the failure to make an affirmative disclosure of his level of experience or success rate constituted a deceptive or unconscionable act or practice under the KCPA.
Standard of Review
In general, the district court is vested with wide discretion in receiving opinion evidence under
According to Williamson, because this is not an informed consent case, there is no need for expert testimony to establish whether a physician has a duty to reveal his or her level of experience and success rate with a particular procedure. Rather, the relevant question is whether Dr. Amrani knew that the surgery he was recom-
Dr. Amrani focuses on whether Williamson should be allowed to introduce evidence of the doctor‘s past experience with the surgical procedure he performed in the absence of expert testimony. This, however, was not the precise issue ruled on by the district court. Judge Lahey stated: “In the absence of expert testimony establishing a duty on the part of the doctor to disclose his experience to a patient, plaintiff does not establish a deceptive act.”
Although Williamson argues this is not a medical malpractice or informed consent case, the well-established test for determining whether expert testimony is required is whether the subject matter is too complex to fall within the common knowledge of the jury and is “beyond the capability of a lay person to decide.” Hare, 263 Kan. at 445; see also Teikin v. Reynolds, 904 P.2d 1387 (Colo. App. 1995) (statute requiring certificate of review in negligence action against licensed professional indicating that plaintiff‘s counsel consulted with expert in area of alleged negligent conduct and concluded the claim did not lack substantial justification; expert testimony also required in claims against physicians and clinic under Colorado‘s CPA).
Whether expert testimony is required depends on what point the plaintiff is trying to prove. As the district court found, a layperson could understand and judge, without the aid of expert testimony, an allegation that Dr. Amrani actually misrepresented his level of experience and success rate with the surgery, thereby misleading Williamson into agreeing to the surgery. Conversely, Williamson‘s attempt to prove that Dr. Amrani should have affirmatively disclosed his level of experience and success rate with the surgery but failed to do so, raises the question of whether such
Under
Affirmed in part, reversed in part, and remanded with directions.
LUCKERT, J., not participating.
DAVIS, J., dissenting: I respectfully dissent. The majority of this court concludes that the Kansas Consumer Protection Act (KCPA),
I respectfully disagree with the majority for a number of reasons. Most notably, the majority decision undervalues the importance of the Kansas regulatory and statutory scheme relating to health care professionals, as well as the broad policy statements by the legislature found throughout the Kansas statutes which distinguish the medical and health care professions from supplier-consumer transactions covered by the KCPA. In my opinion, the majority‘s narrow reading of Kansas law—limiting its consideration to the KCPA alone, without seriously considering the statutes which specifically cover the health care professions—leads to the unreasonable result of “forcing” medical care or treatment into an uncomfortable and unintended KCPA action, thereby undermining Kansas’ public policy of providing acceptable health care for its citizens as expressed by our elected representatives.
Standard of Review
The majority correctly states this court reviews questions of statutory interpretation de novo and that ” ‘[i]t is a fundamental rule of statutory construction, to which all other rules are subordinate,
While the majority correctly states that legislative intent is the keystone for all statutory interpretation, in my opinion its decision fails to give credence to the prior opinions of this court which do not require the court, when interpreting one statute or act, to view the entire act with blinders as to other statutes that also deal with a subject. This court has explained that “[i]n construing statutes or acts and determining legislative intent, several provisions of an act or acts, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible. [Citation omitted.]” (Emphasis added.) State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, 768, 69 P.3d 1087 (2003); Petty v. City of El Dorado, 270 Kan. 847, 852, 19 P.3d 167 (2001).
In Chelsea Plaza Homes, Inc. v. Moore, 226 Kan. 430, 601 P.2d 1100 (1979), for example, this court looked outside the KCPA to determine whether the legislature intended to include an action for a landlord‘s “wrongful” eviction of a tenant under Kansas’ consumer protection laws. The court did not limit its consideration to the KCPA‘s provisions, but it also considered the scope of the Kansas Residential Landlord Tenant Act (KRLTA),
“It is a cardinal rule of law that statutes complete in themselves, relating to a specific thing, take precedence over general statutes or over other statutes which deal only incidentally with the same question, or which might be construed to relate to it. Where there is a conflict between a statute dealing generally with a
subject, and another dealing specifically with a certain phase of it, the specific legislation controls in a proper case. [Citations omitted.]” (Emphasis added.) 226 Kan. at 432.
While the Chelsea Plaza court recognized that the language of the KCPA which defined “consumer,” “supplier,” and “consumer transaction” was “clearly broad enough to include all leases of real estate,” this court nevertheless held that the KCPA did not extend to transactions otherwise covered by the KRLTA. 226 Kan. at 433-34. Thus, despite the “plain language” of the KCPA, which would otherwise encompass the type of KCPA action brought in Chelsea Plaza, we recognized that the legislature‘s treatment of landlord-tenant transactions in other statutory sections created an inherent ambiguity in the language of the KCPA. As discussed below, the same may be said in the case we now consider.
The majority seeks to distinguish Chelsea Plaza on the basis that there is “no single act or all-encompassing statutory scheme concerning medical malpractice which could be compared to the Kansas Residential Landlord and Tenant Act.” 283 Kan. at 243. I believe that the majority opinion not only mischaracterizes the legislature‘s extensive treatment of the medical and health care professions, but it also fails to recognize that while Chelsea Plaza states that a “complete” act (like the KRLTA) is clear evidence of a legislative intent to exclude a particular cause of action under the KCPA, “[t]he underlying premise of this rule is that the most specific statute is also the clearest expression of legislative intent. [Citation omitted.] Thus, the Chelsea Plaza principle is a device for determining which of two state statutes the legislature intended to apply to a particular situation.” (Emphasis added.) State ex rel. Stephan v. Brotherhood Bank and Trust Co., 8 Kan. App. 2d 57, 63, 649 P.2d 419, rev. denied 232 Kan. 876 (1982).
I do not believe that we may turn a blind eye to the legislature‘s other enactments that deal specifically with medical malpractice and health care professionals, for ” ‘statutes are construed to avoid unreasonable results. There is a presumption that the legislature does not intend to enact useless or meaningless legislation.’ [Citations omitted.]” Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 89, 106 P.3d 492 (2005).
In my opinion, the resolution of the case we now consider does not stop with the narrow determination that the language of the KCPA is “broad enough” to encompass claims brought by a patient against his or her physician. Instead, the analysis must continue with a question of whether such an interpretation is reasonable in light of the legislature‘s extensive statutory enactments relating to regulation of the health care professions, to medical malpractice, and to mandatory insurance for health care providers for actions alleging medical malpractice. I would conclude that the majority‘s interpretation is not reasonable in light of the legislature‘s all-encompassing statutory scheme relating to health care professionals, including physicians, the practice of medicine within this state, and the adverse effect the majority‘s interpretation would likely have upon the public health and welfare of Kansas citizens.
Kansas’ Extensive Statutory Treatment of the Medical and Health Care Professions
Resolution of the issue in this case necessarily begins with the interpretation of the provisions of the KCPA but, in my opinion, does not end there. Consideration of the issue must also include an analysis of the legislature‘s extensive treatment of the medical and health care professions found throughout Kansas’ statutory scheme.
KCPA
The KCPA is contained in Chapter 50 of the Kansas statutes, which covers unfair trade and consumer protection. As the majority notes, the KCPA contains very generalized definitions of “consumer,” “supplier,” “consumer transaction,” and “services.” According to
“(b) ‘Consumer’ means an individual, husband and wife, sole proprietor, or family partnership who seeks or acquires property or services for personal, family, household, business or agricultural purposes.
(c) ‘Consumer transaction’ means a sale, lease, assignment or other disposition for value of property or services within this state (except insurance contracts regulated under state law) to a consumer; or a solicitation by a supplier with respect to any of these dispositions. . . . .
(i) ‘Services’ includes:
(1) Work, labor and other personal services;
(2) privileges with respect to transportation, hotel and restaurant accommodations, education, entertainment, recreation, physical culture, hospital accommodations, funerals and cemetery accommodations; and
(3) any other act performed for a consumer by a supplier.
(j) ‘Supplier’ means a manufacturer, distributor, dealer, seller, lessor, assignor, or other person who, in the ordinary course of business, solicits, engages in or enforces consumer transactions, whether or not dealing directly with the consumer. Supplier does not include any bank, trust company or lending institution which is subject to state or federal regulation with regard to disposition of repossessed collateral by such bank, trust company or lending institution.”
The legislature‘s policy behind the enactment of the KCPA is described in
“(a) To simplify, clarify and modernize the law governing consumer transactions;
(b) to protect consumers from suppliers who commit deceptive and unconscionable practices;
(c) to protect consumers from unbargained for warranty disclaimers; and
(d) to provide consumers with a three-day cancellation period for door-to-door sales.”
Citing the above language in Chelsea Plaza, this court explained that “[c]learly, the [Kansas] Consumer Protection Act covers a very broad area of transactions.” (Emphasis added.) Chelsea Plaza Homes, 226 Kan. at 434.
Public Health
The legislature‘s statutory treatment of the medical and health care professions begins within Chapter 65 of the Kansas statutes,
“It is the declared public policy of the state of Kansas that the provision of health care is essential to the well-being of its citizens as is the achievement of an acceptable quality of health care. Such goals may be achieved by requiring a system which combines a reasonable means to monitor the quality of health care with the provision of a reasonable means to compensate patients for the risks related to receiving health care rendered by health care providers licensed by the state of Kansas.” (Emphasis added.)
The Kansas Healing Arts Act (KHAA),
“any system, treatment, operation, diagnosis, prescription, or practice for the ascertainment, cure, relief, palliation, adjustment, or correction of any human disease, ailment, deformity, or injury, and includes specifically but not by way of limitation the practice of medicine and surgery; the practice of osteopathic medicine and surgery; and the practice of chiropractic.”
“Recognizing that the practice of the healing arts is a privilege granted by legislative authority and is not a natural right of individuals, it is deemed necessary as a matter of policy in the interests of public health, safety and welfare, to provide laws and provisions covering the granting of that privilege and its subsequent use, control and regulation to the end that the public shall be properly protected against unprofessional, improper, unauthorized and unqualified practice of the healing arts and from unprofessional conduct by persons licensed to practice under this act.” (Emphasis added.)
To this end, the legislature established the State Board of Healing Arts for “the purpose of administering” the KHAA,
In addition,
“(b) The licensee has committed an act of unprofessional or dishonorable conduct or professional incompetency.
. . . .
(d) The licensee has used fraudulent or false advertisements.
. . . .
(w) The licensee has an adverse judgment, award or settlement against the licensee resulting from a medical liability claim related to acts or conduct similar to acts or conduct which would constitute grounds for disciplinary action under this section.”
K.S.A. 65-2836 .
The KHAA defines “unprofessional conduct” in
“(1) Solicitation of professional patronage through the use of fraudulent or false advertisements, or profiting by the acts of those representing themselves to be agents of the licensee.
(2) Representing to a patient that a manifestly incurable disease, condition or injury can be permanently cured.
. . . .
(8) Advertising to guarantee any professional service or to perform any operation painlessly.
. . . .
(12) Conduct likely to deceive, defraud or harm the public.
(13) Making a false or misleading statement regarding the licensee‘s skill or the efficacy or value of the drug, treatment or remedy prescribed by the licensee or at the licensee‘s direction in the treatment of any disease or other condition of the body or mind.
. . . .
(18) Obtaining any fee by fraud, deceit or misrepresentation.
. . . .
(24) Repeated failure to practice healing arts with that level of care, skill and treatment which is recognized by a reasonably prudent similar practitioner as being acceptable under similar conditions and circumstances.”
“Advertisements” are defined in the KHAA as “all representations disseminated in any manner or by any means, for the purpose of inducing, or which are likely to induce, directly or indirectly, the purchase of professional services.”
While the KHAA does not establish a private statutory cause of action for patients who have been injured, it nevertheless contemplates the existing landscape of medical malpractice. See, e.g.,
Evidence of the legislature‘s concern with the regulation of the healing arts is not limited to the KHAA, or even to Chapter 65. Article 34 of Chapter 40 of the Kansas statutes,
“Substantial increases in costs of professional liability insurance for health care providers have created a crisis of availability and affordability. This situation poses a serious threat to the continued availability and quality of health care in Kansas. In the interest of the public health and welfare, new measures are required to assure that affordable professional liability insurance will be available to Kansas health care providers, to assure that injured parties receive adequate compensation for their injuries, and to maintain the quality of health care in Kansas.” (Emphasis added.)
In my opinion, adding another separate cause of action against health care providers under the KCPA exacerbates the crisis of availability and affordability of health care for Kansas citizens. There is no evidence in the record to establish that insurance for health care providers is available to cover additional actions under the KCPA. Moreover, litigation expenses covered by the mandatory professional liability insurance for health care providers would not cover actions under the KCPA. The majority decision that Dr. Amrani‘s providing of medical care and treatment is covered by the KCPA essentially establishes that all health care providers are covered by the KCPA with the result of increased litigation, increased costs of defending KCPA actions by health care providers, increased insurance expenses, and, ultimately, an increase in the costs of medical care. Ultimately, the majority decision regarding the KCPA conflicts with Kansas’ extensive statutory scheme governing public health and the health care professions as well as the expressed public policy to maintain the quality of health care in Kansas.
The legislature‘s concern relating to the increased costs of medical malpractice actions and insurance also permeates the public health statutes in Chapter 65. See Fieser v. Kansas Bd. of Healing Arts, 281 Kan. 268, 274, 130 P.3d 555 (2006) (citing Minutes, House Judiciary Comm., Interim Comm. Report, January 21, 1986,
Yet while these concerns expressed by the legislature are grave, the provisions of
Not only does the legislature‘s explicit concern for the rising litigation and insurance costs relating to medical malpractice belie the majority‘s conclusion that the legislature intended the KCPA to cover new actions by a patient against a physician, but in my opinion it is unreasonable in light of the legislature‘s specific treatment of health care professionals’ liability insurance. Article 35 of
Moreover, the legislature‘s designation of a specific statute of limitations for actions against health care providers regarding services rendered gives further credence to the fact that the legislature did not intend to include actions arising out of a physician‘s practice of medicine under the KCPA. As the majority correctly notes, Kansas courts have held that the proper statute of limitations for actions filed under the KCPA is 3 years, pursuant to
However, health care providers are covered by a different statute of limitations than that required for the KCPA under
The majority ultimately rejects Dr. Amrani‘s argument that the KCPA should not be interpreted as providing an additional cause of action for patients against their physicians in the rendering of medical care and treatment, and concludes that “[w]hile the legislature has passed various pieces of legislation affecting various aspects of medical malpractice litigation, it has not passed any legislation which precludes coverage for medical negligence claims under the KCPA.” Williamson, 283 Kan. at 243.
I respectfully disagree with the majority‘s conclusion and believe that it is flawed for a number of reasons. First, the above discussion of the legislature‘s extensive statutory treatment of the medical and other health care professions, medical malpractice liability, and mandatory insurance for health care professionals, as well as its explicit statement in
In addition, the majority‘s conclusion implies that the permeation of the legislature‘s stated policy throughout Kansas’ extensive statutory scheme relating to public health actually prevents this court from finding such legislation is “complete” for purposes of statutory interpretations. Cf. Chelsea Plaza Homes, 226 Kan. at
Contrary to the majority‘s conclusion, I am of the opinion that the legislature did not intend for a physician to be liable to his or her patients under the KCPA for the rendering of care or treatment services associated with the practice of medicine. This conclusion I believe construes both the KCPA and other statutory acts involving the practices of medicine and health care in this state, in pari materia, reconciling and bringing them into a workable harmony. Additionally, this conclusion supports the well-recognized rule that when considering statutes or acts of general application, the KCPA, and a specific, comprehensive statutory scheme relating the practices of physicians or other health care professionals in Kansas ”the most specific statute[s or acts are] . . . the clearest expression of legislative intent.” State ex rel. Stephan v. Brotherhood Bank and Trust Co., 8 Kan. App. 2d 57, 63, 649 P.2d 419, rev. denied 232 Kan. 876 (1982).
Decisions of Other Jurisdictions
As the majority opinion recognizes, other jurisdictions which have been faced with this conflict between their consumer protection laws and the specific statutes regulating the medical and other health care professions have drawn a distinction between allegations involving the entrepreneurial aspects of the medical profession, which give rise to consumer protection claims, and allegations involving the actual practice of providing medical care or treatment by a health care professional, which are covered by those states’
“The misconduct alleged here . . . amounts to professional malpractice, and cannot be equated with the misdeeds of an ordinary commercial enterprise, against which the Consumer Fraud Act was expressly enacted to protect ‘consumers’ and ‘businessmen.’ [Citation omitted.] Although the practice of medicine may have a business aspect, the commercial phases of medicine which directly affect the public are not at issue here. The Consumer Fraud Act ‘is intended to reach practices of the type which affect consumers generally and is not available as an additional remedy to redress a purely private wrong.’ [Citation omitted.]” 254 Ill. App. 3d at 444.
The courts of Michigan, Connecticut, and Washington have come to similar conclusions with regard to the scope of the consumer protection acts of those states. See Nelson v. Ho, 222 Mich. App. 74, 83, 564 N.W.2d 482 (1997) (holding that “only 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 may be brought under the [Michigan] CPA“); Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 34, 699 A.2d 964 (1997) (Court concluded that “professional negligence—that is, malpractice—does not fall under [Connecticut Unfair Trade Practices Act] CUTPA. Although physicians and other health care providers are subject to CUTPA, only the entrepreneurial or commercial aspects of the profession[s] are covered.“); Quimby v. Fine, 45 Wash. App. 175, 180, 724 P.2d 403 (1986) (finding that claims relating “to the actual competence of the medical practitioner” are not actionable under the Washington Consumer Protection Act).
The majority seeks to dismiss the reasoning of these cases because the consumer protection statutes reviewed contained the phrase “trade or commerce” in their discussions of the scope of
However, the majority fails to look beyond those states’ use of the phrase “trade or commerce” to the broad definition of this phrase within the states’ respective consumer protection statutes. The use of “trade or commerce” is not “restrictive,” but rather it is defined within those acts to encompass a broad array of transactions. The Connecticut Unfair Trade Practices Act defines ” ‘[t]rade’ and ‘commerce’ ” as “the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state.”
“The terms ‘trade’ and ‘commerce’ mean the advertising, offering for sale, sale, or distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situated, and shall include any trade or commerce directly or indirectly affecting the people of this State.”
Ill. Comp. Stat. ch. 815 505/1(f) (1999).
The Michigan Consumer Protection Act likewise defines ” ‘[t]rade or commerce’ ” as
“the conduct of a business providing goods, property, or service primarily for personal, family, or household purposes and includes the advertising, solicitation, offering for sale or rent, sale, lease, or distribution of a service or property, tangible or intangible, real, personal, or mixed, or any other article, or a business opportunity.”
Mich. Comp. Laws § 445.902(d) (2002).
See also
Furthermore, the definitions of “trade or commerce” in Connecticut, Illinois, and Michigan do not differ greatly from the definition of a “consumer transaction” under the KCPA. See
I am of the opinion that the discussion found in those opinions regarding “trade or commerce” is relevant and enlightening with regard to other jurisdictions’ interpretation of consumer protection statutes which, similar to Kansas, contain no explicit exception for physicians or other health care professionals. As the Michigan Court of Appeals persuasively explained in Nelson,
“[w]e do not consider the Legislature‘s use of ‘trade or commerce’ in defining the application of the act to exhibit an intent to include the actual performance of medical services or the actual practice of medicine. If we were to interpret the act as such, the legislative enactments and well-developed body of law concerning medical malpractice could become obsolete. While we are aware of the expense and difficulty in maintaining a medical malpractice action, we do not think the MCPA was meant by the Legislature to be an alternative to its specific statutory scheme addressing medical malpractice claims. Only when physicians are engaging in the entrepreneurial, commercial, or business aspect of the practice of medicine are they engaged in ‘trade or commerce’ within the purview of the MCPA.” (Emphasis added.) Nelson, 222 Mich. App. at 83-84.
Similarly, the Connecticut Supreme Court held that “[m]edical malpractice claims recast as CUTPA claims cannot form the basis for a CUTPA violation. To hold otherwise would transform every
The Illinois Supreme Court provides a thorough discussion of this issue in the relatively recent case of Cripe v. Leiter, 184 Ill. 2d 185, 703 N.E.2d 100 (1998), reh. denied November 30, 1998, where the court considered whether actions for legal malpractice came within the gambit of the Illinois Consumer Fraud Act. The court explained in detail:
“Our Consumer Fraud Act, like those discussed in the preceding cases from other jurisdictions, contains no language expressly excluding or including the legal profession within its ambit. Despite the absence of such language, there appears to be little dispute among the decisions addressing this issue that consumer protection statutes do not apply to claims arising out of the ‘actual practice of law.’
. . . .
“Historically, the regulation of attorney conduct in this state has been the prerogative of this court. [Citations omitted.] In the exercise of this power, this court administers a comprehensive regulatory scheme governing attorney conduct. The Illinois Rules of Professional Conduct adopted by this court set forth numerous requirements to which attorneys in this state must adhere. [Citation omitted.] Violation of these rules is grounds for discipline. This court has appointed an Attorney Registration and Disciplinary Commission (ARDC) to supervise the ‘registration of, and disciplinary proceedings affecting, members of the Illinois bar.’ [Citation omitted.] This court has also created a procedural scheme under which the ARDC operates, providing detailed regulations involving inquiry, hearing and review boards. [Citation omitted.] The purpose of this regulatory scheme is to protect the public and maintain the integrity of the legal profession. [Citation omitted.]
. . . .
“Accordingly, the attorney-client relationship in this state, unlike the ordinary merchant-consumer relationship, is already subject to extensive regulation by this court. The legislature did not, in the language of the Consumer Fraud Act, specify that it intended the Act‘s provisions to apply to the conduct of attorneys in relation to their clients. Given this court‘s role in that arena, we find that, had the legislature intended the Act to apply in this manner, it would have stated that intention with specificity. [Citation omitted.] Absent a clear indication by the legislature, we will not conclude that the legislature intended to regulate attorney-client re-
lationships through the Consumer Fraud Act.” (Emphasis added.) Cripe, 184 Ill. 2d at 195-97.
See also Evanston Hosp., 254 Ill. App. 3d at 443-44 (concluding that the Illinois Consumer Fraud Act covers neither actions for medical nor legal malpractice and that “[t]he Consumer Fraud Act ‘is intended to reach practices of the type which affect consumers generally and is not available as an additional remedy to redress a purely private wrong’ “).
Contrary to the persuasive reasoning of the above decisions dealing with similar consumer protection acts, the majority here finds that the KCPA does provide a remedy for patients against their health care providers, in addition to medical malpractice law.
The majority declines to recognize an exemption for health care professionals, despite the Kansas Legislature‘s extensive treatment of medical malpractice and the medical and other health care professions, in part because the KCPA contains other explicit exceptions and makes no mention of physicians or other health care professions. However, in my opinion this argument is not persuasive. All of the specific exemptions included in the KCPA and cited by the majority are for transactions that, absent the specific language of the legislature, would fit “comfortably” within the “consumer transaction” scheme of the KCPA. See
Consequences of the Majority‘s Decision
In my opinion, an appellate court reviewing the array of statutes involved in this case appropriately takes into consideration the consequences of the legislature‘s enactment. State, ex rel., v. Throckmorton, 169 Kan. 481, 486, 219 P.2d 413 (1950). In this regard,
“Substantial increases in costs of professional liability insurance for health care providers have created a crisis of availability and affordability. This situation poses a serious threat to the continued availability and quality of health care in Kansas. In the interest of the public health and welfare, new measures are required to assure that affordable professional liability insurance will be available to Kansas health care providers, to assure that injured parties receive adequate compensation for their injuries, and to maintain the quality of health care in Kansas.” (Emphasis added.)
K.S.A. 60-3405 .
This court, in reviewing the legislative history behind this statement, has previously found that the above policy “essentially adopted” in its 1986 amendments the conclusions of the Special Committee on Medical Malpractice, which found that “absent stabilization of malpractice insurance costs, Kansas physicians will not be willing to continue practicing in this state and that a failure to take legislative action in this area will affect health care delivery and availability in Kansas.” Bair v. Peck, 248 Kan. 824, 832, 811 P.2d 1176 (1991).
The majority‘s opinion in this case, which finds a duplicate cause of action for medical negligence under the KCPA, in my opinion adopts an unreasonable conclusion that undermines these policy goals. There is no guarantee that actions brought under the KCPA will be covered by health care professionals’ insurance policies for medical practice. As indicated above, there can be no doubt that the majority‘s conclusion will increase lawsuits brought by patients against their doctors, particularly since the KCPA requires no intent to defraud in order for courts to find liability. See
The ultimate result of this increase in litigation will be an increased burden on the general public in terms of the cost of medical treatment and the deterrence of medical professionals from practicing in the state. See Comment, Caps, “Crisis,” and Consti-
In my opinion, the majority‘s reading of legislative intent adversely impacts the very thing the legislature intended to accomplish in the KCPA, Chapter 65, and the statutes relating to medical malpractice insurance. See
In this case, Williamson has presented no evidence that the statements in question by Dr. Amrani to Williamson were made in the course of the “entrepreneurial” or “business activities” of Dr. Amrani‘s practice. The trial court below found that these statements “involve[] the professional aspect of a physician‘s practice as opposed to the proprietary, business aspects of the physician‘s practice.” Because I would find that such actions are not covered by the KCPA for the reasons outlined above, I would affirm the decision of the trial court.
MCFARLAND, C.J., joins in the foregoing dissenting opinion.