Misrepresentations About Medical Service: Washington Court Applies Consumer Protection Laws

Consumer protection laws are designed to protect the public from false advertising and false sales techniques. Although details of the laws vary from state to state, the general idea is that if someone suffers a loss because he or she bought a product or service as a result of a false statement, he or she can recover damages based on the loss as a result.

Washington has a particularly strong consumer protection law. In a recent case, the Washington Court of Appeals made clear that claims under the consumer protection law are separate from traditional negligence claims. As a result, if the seller of a medical procedure falsely advertises the procedure, the patient can sue for the false statement regardless of whether the doctor commits malpractice in the actual procedure.

The case involved a service called “Lifestyle Lift,” which was advertised as “a minor one-hour procedure with major results,” that allowed patients to “Return to work quickly vs. traditional procedures.” This probably was a lie. In fact, Lifestyle Lift was ordinary plastic surgery, and the real benefit was a sales structure that reduced the cost to the patient.

The patient agreed to undergo a Lifestyle Lift with additional liposuction, and paid a total of $4,140. She signed an agreement stating that the Lifestyle Life was a surgical procedure and that results were not guaranteed. She also signed an informed consent form at the doctor’s office shortly before the surgery.

Unfortunately, there were complications, including pain and a lump on the patient’s cheek. These had been noted in the informed consent form.

The patient sued the doctor, the clinic, and the company that owns the Lifestyle Lift trademark and prepared the advertisements, and the company that markets Lifestyle Lift in the Seattle area. She alleged medical malpractice, failure to obtain informed consent, and violation of the consumer protection law, and asked for $22,000, including the money she paid for the Lifestyle Lift, additional medical expenses, lost income, and assorted expenses.

The parties agreed to drop the Lifestyle Lift company from the case, which suggests that it may have settled. The trial judge ruled that the marketing company wasn’t a health care provider and that the malpractice claims didn’t apply to it. A jury found that the doctor and clinic had not committed malpractice and had obtained informed consent. Nobody objected to these rulings.

The judge also threw out the consumer protection claim, believing that it was just a repackaged malpractice claim; in Washington the consumer protection law doesn’t allow recovery for personal injury. The patient appealed this ruling as applied to the marketing company and the clinic, both of which showed the possibly false advertisements to the patient.

The Court of Appeals agreed with the patient that the consumer protection law can apply if the core of the claim is about the business practices of the defendant, and not the competence of the doctor. It compared the case to an earlier one in which a dentist had lied about the metals that would be used in a patient’s crown. As a result, the patient could sue for false advertising when she bought the surgery. Basically, the court said that the patient was complaining about something other than malpractice.

The Court of Appeals also rejected a backup argument by the defendants: that the jury’s ruling that the patient had given informed consent meant that she couldn’t prove false advertising. The court noted that the false advertising claim went to the patient’s agreement to purchase the surgery, not to her final submission to the surgery after she paid, and said that was enough of a difference to leave the consumer protection claim in the case.

In Oregon, the Court of Appeals similarly ruled a long time ago that the consumer protection law didn’t cover personal injuries, but that false advertising still might be covered. The important case in Oregon involved a denturist falsely claiming to be a dentist.

The best way to protect yourself from false advertising is to be careful before buying. If something sounds too good to be true, that may be the case. Ask around and check out surprising advertising. And if you think after you buy that something went wrong, talk to a lawyer. Remember to bring as much information as you can with you; the more that you have documented, the harder it is for a seller to dispute what happened.

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