House passes exemption of doctors from consumer act

BY ANDI ATWATER
The Wichita Eagle
http://www.kansas.com

A bill that protects physicians and other health care providers from being sued over services under the Kansas Consumer Protection Act passed the House on Thursday and is headed for Senate consideration as early as next week.

The bill was prompted by a state Supreme Court ruling last month involving a Wichita case. The court ruled doctors could be held liable for deceptive acts and practices under the act because nothing in the wording specifically exempted them.

Traditionally, lawsuits over physician conduct are heard under medical malpractice laws.

The Supreme Court went on to suggest the Legislature could revise the act, and the Kansas Medical Society promptly requested the new bill, which was introduced by Rep. Michael O’Neal, R-Hutchinson.

House Bill 2530 specifically exempts “the rendering of or failure to render professional services by a physician or health care provider… ”

This concerns many attorneys, consumer groups and residents who say the act is sometimes the only avenue for people injured by fraudulent or deceptive business practices that aren’t covered under more stringent medical malpractice laws.

“This bill is a form of elitism to exempt doctors and other health care providers from laws that prohibit deceptive and unconscionable business practices,” said Wichita attorney RussHazlewood of Graybill & Hazlewood, who testified against the bill.

But supporters of the bill — which include physicians, the Kansas Hospital Association and the Medical Society of Sedgwick County — say the new wording doesn’t change the consumer protection intent of the act, in place since 1974.

The law today allows consumers redress for questionable business services such as misrepresentation and erroneous bill collection.

After much debate, the bill was amended to specifically recognize that billing, advertising and other business services by health care providers are included under the act.

“The bill does not change the way we have been operating for 30 years,” said Kevin Hoppock, a Wichita family practitioner who also serves as legislative chairman for the medical society.

Hoppock said the Supreme Court’s ruling opened up the potential for physicians to be sued for professional conduct under the Consumer Protection Act — an implication that wasn’t there before.

“It created a whole new cause of action against physicians, which does nothing to enhance the protection of the Kansas public,” Hoppock said. “The bill means to basically… keep things as they are.”

But critics are dismayed that the bill passed, particularly when lawmakers heard from a number of opponents, including the state attorney general’s office, AARP of Kansas, the Kansas Trial Lawyers Association and dozens of residents.

“We do not believe a special group ought to be exempt,” said Ashley Anstaett, a spokeswoman for Kansas Attorney General Paul Morrison. “We believe this bill eliminates legal protection for consumers of health care services.”

Proponents say that is not the case.

“The Consumer Protection Act remains an appropriate avenue for any consumer to file an action against any supplier if they falsely advertise their services,” said Jon Rosell, executive director of the Medical Society of Sedgwick County. “I think it allows the doctor-patient relationship to remain as a trusted relationship… and not be treated as a consumer transaction.”
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