May 18, 2020

The District Court of Columbia Court of Appeals (“D.C. Appellate Court”) held in its decision filed on February 27, 2020 in a case alleging that the defendant hospital failed to inform the plaintiff that her bilateral tonsillectomy was to be performed in part by a first-year medical resident, rather than the seasoned board certified surgeon whom she selected, “the trial court erred in requiring [the plaintiff] to provide evidence of an “entrepreneurial motive” to sustain her CPPA claims [District of Columbia Consumer Protection Procedures Act, D.C. Code §§ 28-3901, to -3913 (2013 Repl.)] against GWUH [George Washington University Hospital].”

The D.C. Appellate Court stated that under D.C. Code § 28-3904 (e) and (f), a plaintiff-consumer “need not allege or prove intentional misrepresentation or failure to disclose to prevail on a claimed violation of” the CPPA. The D.C. Appellate Court stated, “We extend that reasoning and hold that a plaintiff consumer need not allege or prove intentional misrepresentation to claims made under D.C. Code § 28-3904(a) and (d). Moreover, we reject any requirement that a CPPA claim allege an “entrepreneurial nexus.””

The Underlying Facts

The D.C. medical malpractice plaintiff signed a Patient’s Request for Procedure, Operation, and Treatment form on May 9, 2013 that stated “Knowing that the George Washington University Hospital is a teaching institution, I understand that along with my doctor and his/her assistants and designees, other Hospital personnel such as residents, trainees, nurses, and technicians will be involved in my procedure/operation/treatment and care.” This Form expressly stated, “I understand and agree to the presence of appropriate observers for the advancement of medical education and care.”

The plaintiff did not understand the forms as requesting her approval for someone other than Dr. Troost to perform the surgery; instead, she understood the forms to mean that other medical staff would be “involved” by, for example, observing the surgery or providing related services. The plaintiff further did not recall GWUH informing her that someone other than Dr. Troost would perform the procedure. The plaintiff alleged that, had GWUH told her that a resident could perform part of the procedure, it would have raised “a huge red flag,” and she probably would not have agreed to go forward.

A first-year resident performed at least part of the surgical procedure under the direction of Dr. Troost, without the plaintiff’s knowledge. The plaintiff alleged that she suffered a significant and permanent loss of her sense of taste following the surgery.

The plaintiff filed suit against GWUH for not disclosing the first-year resident’s involvement with her surgery, which she alleged was a material misrepresentation of services rendered in violation of the CPPA. GWUH subsequently filed a motion for summary judgment. The trial court determined that the plaintiff’s CPPA claims turned on one issue: whether there was evidence of an “entrepreneurial motive,” i.e., “an intentional misrepresentation that is motivated by financial or entrepreneurial considerations” on GWUH’s part in failing to inform the plaintiff of the first-year resident’s role in her surgery. Although recognizing that intent and scienter are not ordinarily required to prove a CPPA claim, the trial court noted a difference between “general” CPPA claims and CPPA claims brought in the medical services context.

The trial court found no evidence that GWUH intentionally failed to disclose the first-year resident’s involvement to the plaintiff for financial gain or business interests and granted summary judgment in favor of GWUH. The plaintiff appealed.

D.C. Appellate Court Decision

The D.C. Appellate Court stated that a consumer need not prove that she was “misled, deceived, or damaged” by a merchant’s actions. D.C. Code § 28-3904. Further, a consumer need not always prove that the merchant made an intentional misrepresentation under the CPPA. In light of the plain language and the legislative intent of the CPPA, a consumer need not allege intentional misrepresentation of a material fact or an intentional failure to disclose a material fact under D.C. Code § 28-3904(e) and (f). For claims of misrepresentation, the statute merely provides that it is a violation of the CPPA if the merchant “misrepresented” or “failed to state” a material fact: “a consumer only needs to establish that the merchant made a material misrepresentation under § 28-3904(e), or failed to make a material disclosure under § 28-3904(f).”

The D.C. Appellate Court held: “To be sure, we have not yet had occasion to decide whether intentionality is required to claim a violation of the CPPA under § 28-3904(a) and (d). However, we now hold that intent or knowledge is not required under these provisions, as we did with claims of misrepresentation under § 28-3904(e) and a failure to state a material fact under § 28-3904(f), because the D.C. Council did not explicitly state that intent or knowledge is necessary to sustain a CPPA claim under § 28-3904(a) and (d). Accordingly, a consumer need not prove that a merchant intentionally or knowingly represented that the goods or services have a characteristic or were of a standard or quality that they did not, in fact, have.”

“For purposes of § 28-3904(e) or (f), a misrepresentation or omission is “material” if a reasonable person “would attach importance to its existence or nonexistence in determining his or her choice of action in the transaction” or “the maker of the representation knows or has reason to know” that the recipient likely “regard[s] the matter as important in determining his or her choice of action.” … Ordinarily materiality is a question for the factfinder. Id. The burden of proof for CPPA claims is clear and convincing evidence.”

In 1991, the D.C. Council amended the statute and deleted “practitioners of the healing arts” from § 28-3903(c)(2)(C), thereby extending the CPPA’s protections to the field of medicine: the practice of medicine is considered a “trade practice” under the CPPA.

The D.C. Appellate Court held: “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 … 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 D.C. Code § 28-3904(a) & (d)-(f), and we now reach the same conclusion as to CPPA claims against medical service providers.”

In the case it was deciding, the D.C. Appellate Court stated that the plaintiff “does not need to prove that she was damaged by the misrepresentation or omission. Critically, she also does not need to prove that the misrepresentation or omission was intentional under § 28-3904(a) & (d)-(f). Consequently, on this record, we conclude that [the plaintiff] 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 [the plaintiff] demonstrates a material factual dispute as to whether GWUH made a misrepresentation or failed to disclose material information. [The plaintiff] 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 [the first-year resident], 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 all manner of medical and hospital personnel) and that some “appropriate observers” could be “presen[t] . . . for advancement of medical education and care.” A jury could find that the evidence, viewed in the light most favorable to [the plaintiff], made it reasonable for [the plaintiff] to understand the forms as authorizing residents to observe [the plaintiff’s] procedure for the advancement of their medical education and care or to perform related services, not to perform the surgery itself. And GWUH did not expressly inform [the plaintiff] that [the first-year resident] would perform the surgery. Further, the evidence viewed in the light most favorable to [the plaintiff] supports and would permit a jury to find that the misrepresentation or failure to disclose information was material.”

The D.C. Appellate Court held: “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.”

Source Frankeny v. District Hospital Partners, LP, No. 18-CV-628.

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