A patient suffering from sleep apnea agreed to undergo a tonsillectomy at George Washington University Hospital by a board certified otolaryngologist. The authorization for surgery stated in part that the patient’s
“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).”
The patient was not told that anyone other than the otolaryngologist would be performing the procedure and stated that had she been informed of this fact, she probably would not have agreed to proceed with the surgery. During the surgery, a first year ENT resident performed part of the surgery. After the surgery, the patient suffered a “significant and permanent loss of taste.”
The patient sued under the District of Columbia’s consumer fraud statute, alleging that the services she received amounted to a material misrepresentation regarding who would perform the services. The trial court dismissed the case, stating that the hospital had no financial motive in making the misrepresentation.
On appeal, the Court of Appeals stated that to prevail on a consumer fraud claim, the plaintiff does not need to prove “motive or intent,” only that a misrepresentation was made.
The District of Columbia’s consumer fraud statute (D.C. Code § 28-3904) declares it illegal for a party to engage in an unfair or deceptive trade practice whether or not any consumer is in fact misled, deceived, or damaged. Among the prohibited practices include “misrepresent[ing] a material fact which has a tendency to mislead” and “fail[ing] to state a material fact if such failure tends to mislead.” Violations of the statute subject a defendant to treble (3x) damages, punitive damages, and payment of attorney’s fees.
In this case, the Court held that the language contained in the forms the patient signed stating that residents or medical students would be “involved in her care” was “at best ambiguous” as to whether a resident might perform the surgery. George Washington University Hospital failed to expressly inform the patient that a resident might perform part of her surgery.
The Court also noted that the allegations in this case differed from the allegations that would be required for a medical malpractice case as they did not pertain to the quality of the medical care provided. Therefore, the plaintiff did not require expert witness testimony.
Since the patient raised a genuine issue as to whether George Washington University Hospital had misrepresented a material fact regarding her surgery, the Court of Appeals overturned the ruling of the trial court and remanded the case for trial.
Commentary
Consumer fraud complaints are particularly attractive to plaintiff attorneys since consumer fraud claims involve larger potential damages, may include an award of attorney’s fees, don’t require that parties hire expensive expert witnesses, and don’t even require that a patient suffer an injury. Plaintiffs must only show that a misrepresentation was made. In addition, the allegations jurors must consider in a consumer fraud case are relatively straightforward: Did the defendant make a material misrepresentation or not? Medical malpractice cases require that jurors consider expensive, highly technical, confusing, and often biased opinion testimony from medical experts regarding whether a physician met the “standard of care.”
Although this court opinion noted that professions such as clergy, attorneys, and practitioners of the healing arts had traditionally been excluded from the consumer fraud statute, the law was changed to remove the exclusion for healthcare practitioners.
This claim amounted to an issue of informed consent. Robust informed consent forms may help hospitals and providers avoid similar cases in the future.
See Frankeny v. District Hospital Partners, LP, et al, 18-CV-628, DC Court of Appeals, 2020.
Hat tip to Horty Springer for the case link