Can I Sue My Health Care Provider for False or Deceptive Statements?

By Melanie R. Margolis

In a time of ever-increasing competition in the managed care industry, a health care plan may advertise that it has attained the highest possible accreditation level given by the National Committee for Quality Assurance. It may focus interested consumers on supporting figures, such as its high rate of breast cancer screening or its high percentage of treatment relating to diabetes management. What if your health care plan or provider represents to you that it will provide you with the best possible health care available, but it does not? Under what circumstances you may be entitled to recover damages under the Texas Deceptive Trade Practices Act (DTPA) for false, deceptive, or misleading statements by your health care provider is an interesting question.

Generally, the DTPA is a statute that provides recourse for consumers injured by: false, deceptive, or misleading acts or practices; breaches of warranty; and unconscionable actions. The DTPA includes a "laundry list" of deceptive practices which are considered unlawful. A consumer who has sought or acquired goods or services for purchase or lease may sue under the DTPA. Thus, it would seem that under the DTPA, a consumer of medical services could prevail in a case against a health care provider who made false, deceptive, or misleading representations; however, an examination of other relevant state law may yield a different result.

Section 12.01(a) of the Texas Medical Liability and Insurance Improvement Act (Medical Liability Act) provides that the DTPA does not apply to health care providers with regard to claims for personal injury or death resulting from a health care provider's negligence. This exemption does not exclude all DTPA claims against health care providers. It applies only to negligence-based claims under the DTPA for personal injury or death.

This distinction has been noted by the Texas Supreme Court. In Sorokolit v. Rhodes, 889 S.W.2d 239 (1994), Janice Rhodes sued Bob Sorokolit based on breach of warranty and misrepresentation claims under the DTPA. He guaranteed that after breast augmentation surgery her breasts would look just like the one in a picture she selected. He failed to produce the expected result. Sorokolit argued that these DTPA claims were barred by Section 12.01(a) of the Medical Liability Act. The Court disagreed because Rhodes did not allege that the doctor deviated from the accepted standard of care (i.e., negligence), but that he guaranteed the results of the surgery, knowingly breached his express warranty of a particular result, and knowingly misrepresented his skills and the results he could achieve. Because the DTPA claims were not based on negligence, Section 12.01(a) of the Medical Liability Act did not bar the suit.

This question was recently considered by the Texas Supreme Court in MacGregor Medical Association v. Campbell decided on October 29, 1998. In this case, Danny Campbell became violently ill after drinking Kool-Aid containing formaldehyde. Campbell and his wife went to the MacGregor Medical Clinic (Clinic). The Campbells informed the Clinic that Campbell had ingested poison, but he waited 45 minutes before a doctor saw him. The doctor assumed Campbell had vomited all the formaldehyde out of his system and did not perform any investigation or treatment, telling Campbell to take Maalox if he felt pain.

After suffering severe stomach problems, two unsuccessful surgeries, and ultimately, the complete removal of his stomach, Campbell sued the Clinic for negligence, breach of contract, breach of warranty, and violation of the DTPA. Campbell alleged that the Clinic represented verbally and in its marketing materials that it would provide "qualified personnel and resources," "the best health services possible," and emergency service "24 hours a day, even in a distant city." Campbell died two weeks after filing suit, and his wife pursued the suit.

The Supreme Court found in favor of the Clinic, stating that these claims differed from those in Sorokolit. Essentially, Campbell's claim was that the Clinic failed to provide quality medical care as promised in its literature. To succeed on this claim, Campbell would have to prove a breach of the applicable standard of care for health providers. The Court stated that the determination of whether a claim is negligence-based depends on the underlying nature of the claim. Negligence claims cannot simply be recast as DTPA claims to avoid the limitations of Section 12.01(a) of the Medical Liability Act.

Thus, if the basis for your DTPA claim for personal injury is solely your health care provider's negligence, your claim will be barred by the exemption for health care providers found in the Medical Liability Act. On the other hand, to the extent your claim is based on misrepresentation, deception, or false or misleading conduct, or any violation of the DTPA, it will not be barred by the Medical Liability Act.

11/30/98