By Rep. Mike O”Neal, R-Hutchinson, chairman of the House Judiciary Committee
Special to KHI News Service
Rep. Mike O’Neal, R-Hutchinson
House Bill 2530 was introduced in the House on Feb. 15, 2007, six days after the Kansas Supreme Court handed down its opinion in the case of
Williamson v. Amrani, M.D.
In
Williamson
, the court ruled, for the first time in the nearly 34 year history of the Kansas Consumer Protection Act, that the act also applies to an action for medical malpractice.
The attorney who represented Williamson admitted in testimony before the House committee that the “KCPA does not apply to ordinary medical malpractice cases.” He also agreed that in the 34 years the KCPA has been in existence the act has been applied to the medical profession in only a handful of cases and those were purely business related claims that were not covered by the exemption in the bill.
House amendments to the bill make it clear that the KCPA should not and does not apply to professional services, i.e., claims arising out of the rendering or failure to render professional services. The KCPA would continue to apply to the purely business aspects of medicine, i.e., billing, media advertising or other business services.
There is no coverage under a health care provider”s professional liability policy for KCPA claims and the mere allegation, together with the related costs of defending such a claim, will inevitably raise the cost of insurance and the costs of health care in the state. HB 2530
does not
protect health care providers from appropriate actions for medical negligence or business-related KCPA claims.
Ironically, written testimony from the A.G.”s office contained some significant misrepresentations. The testimony stated that the Board of Healing Arts played only a minor role, claiming that “the board is only responsible for licensing functions. The board has no authority to investigate or prosecute deceptive or unconscionable acts.” This testimony was patently false. The Healing Arts Act contains the medical equivalent of a consumer protection act for patients. It makes provision for the investigation and prosecution of complaints under the act. The investigative role is performed by disciplinary counsel for the board and upon request of the board, the Attorney General prosecutes claims. In fact, by law, the Attorney General is required to report complaints against physicians to the Board of Healing Arts to investigate and handle.
The Kansas Supreme Court had it right in its 1996 decision in
Bonin v. Vannaman
. There plaintiff brought a claim of malpractice and fraud against a physician. In ruling that plaintiff could pursue a claim for malpractice but not fraud, the court stated:
“As malpractice covers every way in which a patient is injured through the dereliction of a doctor in his professional capacity, the approach, depending on the facts, can be through any of several familiar forms of action.
But no matter what the approach, it remains an action for malpractice, not one for deceit, contract or anything else
.”
HB 2530 does nothing more than restore our Kansas law to where it was prior to Feb. 9 of this year and for the 34 years before that, consistent with prior court decisions and consistent with the public policy of the state. It is significant that our current court found the arguments in favor of the exemption from the KCPA persuasive and invited the Legislature to make the public policy clear. HB 2530 does that.