From the Desk of Kyle Riley: In this case, the Washington Court of Appeals held that when a plaintiff brings a lawsuit under the Consumer Protection Act (“CPA”) relating to an advertised medical procedure, a jury may find that the cost of the procedure is a consumer injury even if the plaintiff has alleged that the same procedure caused a personal injury.
Claims Pointer: Under the CPA, a plaintiff cannot recover damages for personal injuries. The CPA is intended to be a source of recovery for unique injuries to business or property. Insurers should be mindful that Washington courts will allow a plaintiff’s personal injury action against a medical provider to continue, even if the plaintiff simultaneously brings a CPA suit, based on the marketing of the medical procedure. Insurers should be aware that the marketing of services could add additional costs to a simultaneous personal injury claim.
Williams v. Lifestyle Lift Holdings, Inc. et al., in the Court of Appeals of the State of Washington, Division I, No. 68110-9-I, — P.3d —- (May 28, 2013).
Elvira Williams purchased a cosmetic surgery procedure known as the “Lifestyle Lift” after seeing advertisements for the procedure on television. The procedure was advertised as being quick and painless. However, after the procedure was completed, Williams suffered from numbness in her cheek and deformed earlobes. Williams sued the physician who performed the surgery; the medical clinic in which the procedure was performed; and the company which marketed the procedure, Scientific Image Center Management, Inc. (“Scientific Image”). She alleged negligence, failure to obtain informed consent, and violation of the CPA.
The trial court found that Williams was disguising what was really a personal injury claim to look like a claim under the CPA. In reaching this conclusion, the trial court relied heavily on the Washington Supreme Court’s opinion in Ambach v. French, 167 Wn.2d 167 (2009). In that case, the plaintiff underwent an allegedly botched shoulder surgery, suing the physician for professional negligence and violations of the CPA. The Court held that the plaintiff failed to show how she suffered a consumer injury, as distinct from her personal injuries, and dismissed her CPA claims. The trial court found that Williams’ CPA claims were similarly flawed and dismissed the CPA claims against all defendants. Williams appealed the dismissal of her CPA claims against the clinic and Scientific Image.
On review, the Court of Appeals found that Williams’ personal injuries were distinct from her consumer injuries, noting, “The act that caused the alleged personal injury to Williams was the surgery; the acts that caused her alleged consumer injury were the advertising and sales techniques.” The Court found that, but for the sales and marketing tactics of Scientific Image, Williams would not have purchased the procedure. The business or property injury she suffered was the purchase of the procedure itself.
In Ambach, the court was concerned that the CPA could be used to give plaintiffs “backdoor access to compensation they were denied in their personal injury suits.” Because Williams’ injuries arose from two separate acts, the medical procedure, itself, and the marketing of that medical procedure, Ambach was not analogous. Accordingly, the trial court’s dismissal of her CPA claims was improper.
Case updates are intended to inform our clients and others about legal matters of current interest. It is not intended as legal advice Readers should not act upon the information contained in this email without seeking professional counsel.