D.C. Court of Appeals Rules No Reason to Distinguish Consumer Protection Claims against Health Care Providers from Other Consumer Protection Claims
The D.C. Court of Appeals, the District of Columbia’s highest court, issued a decision on February 27, 2020, that will have widespread ramifications for medical malpractice litigation in the District. In Frankeny v. District Hospital Partners, LP, the Court, in an opinion by Chief Judge Anna Blackburne-Rigsby, held that the burden of proof for a consumer protection claim against health care providers is the same as in a general consumer protection claim. The Court definitively rejected the argument that a consumer must show an entrepreneurial nexus or entrepreneurial motive to pursue a consumer protection claim against a health care provider.
D.C. consumer misrepresentation claims are governed by the D.C. Consumer Protection Procedures Act (CPPA). In the 2006 case Caulfield v. Stark, the D.C. Court of Appeals stated that there should be a clear basis for distinguishing a misrepresentation claim under the CPPA from a personal injury claim that falls outside it. The Court favorably cited federal court precedent applying an “entrepreneurial nexus” standard to distinguish the two types of claims. Under that standard, as articulated by the U.S. District Court for the District of Columbia in Dorn v. McTigue, a plaintiff in a CPPA claim against a medical provider must show that the medical provider’s statement or action had an entrepreneurial motive. The Caulfield court did not, however, adopt the Dorn standard or otherwise endorse a basis for distinguishing misrepresentation claims from personal injury claims. Frankeny is the first time the D.C. Court of Appeals has revisited this question.
Rachel Frankeny, a patient of the George Washington University Hospital, claimed that the hospital failed to inform her that her tonsillectomy surgery would be performed in part by a first-year medical resident instead of solely by her board-certified surgeon. When she discovered that a resident performed part of her tonsillectomy, she claimed that the hospital violated the CPPA by materially misrepresenting the medical services it would provide.
The trial court applied the Dorn “entrepreneurial nexus” standard to Ms. Frankeny’s claims. After the close of discovery, the trial court found Ms. Frankeny had failed to establish that the hospital had any entrepreneurial motive in not disclosing the specific role a resident would play in her tonsillectomy, and the court granted summary judgment for the hospital. The D.C. Court of Appeals reversed the entry of summary judgment and held that the trial court erred in applying the Dorn “entrepreneurial nexus” standard.
In so holding, the Court relied on cases involving economic loss only − but not personal injury − and explained that plaintiffs do not need to prove a misrepresentation was intentional or knowing to pursue a CPPA claim. The Court also acknowledged that courts nationwide distinguish between traditional malpractice claims and consumer protection claims and explicitly noted the Dorn “entrepreneurial nexus” standard. Despite this, the Court expressly rejected the “entrepreneurial nexus” standard and held − contrary to its holding 14 years earlier in Caulfield − that there is no reason to distinguish consumer protection claims against health care providers from any other consumer protection claims.
According to Frankeny, “any concern that the line between CPPA claims and traditional medical malpractice claims will be blurred appears to be overstated.” However, now that there is no meaningful distinction between the two, every informed consent claim − which inherently involves an allegation that a medical provider omitted a material fact in discussions with a patient, thereby failing to advise a patient adequately about a procedure − also will likely be brought as a consumer protection claim. This increases medical defendants’ potential exposure because under the CPPA, plaintiffs may recover treble damages and attorney’s fees.