Day on Torts
The Kansas Supreme Court has stated that a patient injured as a result of alleged medical negligence can file suit under the state’s consumer protection act.
The patient , Williamson, alleged that the defendant doctor "represented that the surgery he was recommending had a high likelihood of successfully relieving her pain when, in fact, that surgery had been unsuccessful in the majority of cases where [defendant] Dr. Amrani had utilized the same procedure. Williamson alleged that Dr. Amrani had willfully misrepresented or concealed material facts in that he knew or should have known that the surgery he was recommending had produced ‘bad results’ for a majority of his patients."
The Court reviewed the Kansas Consumer Protection Act and the law from other states interpreting similar statutes in other cases and ruled that "the language of the KCPA is broad enough to encompass a claim regarding the providing of medical care or treatment services brought by a patient against a physician for a violation under the KCPA."
The Court went on to rule that "in order to determine whether Dr. Amrani’s alleged failure to make an affirmative disclosure of his level of experience or success rate for the recommended surgery constituted a deceptive or unconscionable act or practice, the district court correctly ruled that expert testimony would be helpful in determining whether the disclosure is one that would be made by a reasonable medical practitioner under the same or like circumstances."
Two justices issued a long, passionate dissent.
The case is Williamson v. Amrani, No. 95-154 (Kan. S. C. Feb. 9, 2007). Read it here.