IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 95,154
TRACY WILLIAMSON,
Appellant,
v.
JACOB AMRANI, M.D.,
Appellee.
SYLLABUS BY THE COURT
1. Under the Kansas Consumer Protection Act, a physician providing care or treatment to a patient can be found to have engaged in deceptive acts and practices in violation of K.S.A. 50-626 and unconscionable acts and practices in violation of K.S.A. 50-627.
2. Under K.S.A. 50-626(b)(3) of the Kansas Consumer Protection Act, proof of an allegation that a physician has willfully failed to state a material fact or has willfully concealed a material fact requires expert testimony to establish the disclosures that would be made by a reasonable medical practitioner under the same or like circumstances.
Appeal from Sedgwick district court; TIMOTHY G. LAHEY and WARREN M. WILBERT, judges. Affirmed in part, reversed in part, and remanded with directions. Opinion filed February 9, 2007.
Michael L. Hodges, of Law Office of Michael L. Hodges, of Lenexa, argued the cause and was on the briefs for appellant.
Steven C. Day, of Woodard, Hernandez, Roth & Day, L.L.C., of Wichita, argued the cause, and Chris S. Cole and Nancy Ogle, of the same firm, were with him on the brief for appellee.
Per Curiam: This case raises the question of whether the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq., applies to a physician's professional conduct in providing treatment to a patient, specifically whether a physician can be found to have engaged in deceptive acts and practices in violation of K.S.A. 50-626 and unconscionable acts and practices in violation of K.S.A. 50-627 by knowingly making misrepresentations regarding the proposed medical treatment or willfully concealing or failing to make disclosures of material facts. We conclude the KCPA can apply to a physician's conduct in providing treatment. We further conclude that expert testimony may be necessary to prove the claim.
This case arose after Tracy Williamson sought treatment from Jacob Amrani, M.D., for a disabling back injury Williamson had sustained 14 years earlier. Dr. Amrani recommended that Williamson undergo lower back surgery for an L4-5 and L5-S1 fusion involving BAK cages (a surgical device) and an iliac crest bone graft. Dr. Amrani performed this surgery on Williamson in May 1999. When Dr. Amrani saw Williamson again in August 1999, she was still experiencing pain in her lower back and left leg. Dr. Amrani recommended a second surgery involving removal of the BAK cage at L4-5. Dr. Amrani performed the second surgery in October 1999.
Williamson filed suit against Dr. Amrani. In an amended petition, Williamson alleged that Dr. Amrani engaged in deceptive acts and practices in violation of K.S.A. 50-626 and unconscionable acts and practices in violation of K.S.A. 50-627 by making representations to Williamson that the surgery he would perform would have benefits that, in fact, it did not have. Specifically, Williamson alleged that Dr. Amrani represented that the surgery he was recommending had a high likelihood of successfully relieving her pain when, in fact, that surgery had been unsuccessful in the majority of cases where Dr. Amrani had utilized the same procedure. Williamson alleged that Dr. Amrani had willfully misrepresented or concealed material facts in that he knew or should have known that the surgery he was recommending had produced "bad results" for a majority of his patients.
At the time of her deposition Williamson testified that, prior to the first surgery, Dr. Amrani told her the surgery would relieve her pain to the point where she would no longer need pain medication and would be able to return to work.
Dr. Amrani filed a motion for summary judgment arguing that the KCPA does not apply to a physician's professional conduct in providing care and treatment to patients and that Williamson's KCPA claims were an impermissible attempt to creatively plead medical negligence (malpractice).
District Judge Timothy G. Lahey overruled Dr. Amrani's motion, finding that the KCPA applied. Noting that the KCPA must be liberally construed to bring consumer transactions within its scope, Judge Lahey found that, under the KCPA, the physician is a supplier and the patient is a consumer. Further, he found that while the KCPA has some explicit exclusions, nothing in the KCPA excludes the physician-patient relationship from its scope. Judge Lahey found there was a genuine issue of material fact as to what Dr. Amrani told Williamson about the surgery; therefore, whether there was a violation of the KCPA was a question for the jury.
Dr. Amrani subsequently filed a second motion for partial summary judgment arguing that, even if the KCPA applied, Williamson would be required to produce expert testimony to establish her claim that Dr. Amrani should have informed her of his personal experience and success rate in performing the medical procedure at issue. Williamson had not identified any such expert witness.
Judge Lahey granted Dr. Amrani's motion, ruling that, while expert testimony would not be required to establish whether Dr. Amrani affirmatively misrepresented his level of experience or success rate in recommending the surgery to Williamson, expert testimony would be required to establish whether his failure to make an affirmative disclosure of his level of experience or success rate constituted a deceptive or unconscionable act or practice. Judge Lahey stated: "In the absence of expert testimony establishing a duty on the part of the doctor to disclose his experience to a patient, plaintiff does not establish a deceptive act."
Prior to the scheduled trial, Dr. Amrani filed several motions in limine to exclude certain evidence. At a hearing on those motions, a different judge, District Judge Warren M. Wilbert, informed the parties that he had recently ruled in another case that the KCPA does not apply to a physician's professional treatment of a patient, that he remained strongly of that view, and that he would likely rule that way at the time of a motion for directed verdict. In order to avoid the cost of trial and to conserve judicial resources, the parties agreed it would be more appropriate for the court to take up the matter on Dr. Amrani's request to reconsider his motion for summary judgment. Judge Wilbert then ruled that Dr. Amrani was entitled to judgment as a matter of law, making the following conclusions of law:
"1. The issues of what disclosures a surgeon should make to a patient regarding risks, benefits and the likelihood of success of the proposed surgery falls under an area of the law of medical malpractice known as informed consent. A claim that a physician provided inadequate or inappropriate informed consent involves the professional aspect of a physician's practice as opposed to the proprietary, business aspects of the physician's practice;
"2. The Kansas Consumer Protection Act may under certain circumstances apply to the conduct of a physician in dealing with a patient. Application of the act, however, is limited to the proprietary and business aspects of a physician's practice and does not apply to the physician's professional conduct in providing treatment to a patient;
"3. The issue of whether, under the particular circumstances of this case, Dr. Jacob Amrani, as an orthopedic surgeon, should have provided a less optimistic appraisal of the likelihood of the surgery providing pain relief and other benefits is a subject intrinsically associated with professional judgment and the standard of care of such nature as to, first, necessitate expert testimony and, second, be of a type the Kansas Legislature did not intend to have adjudicated under the terms of the Kansas Consumer Protection Act."
Williamson timely appealed the district court's ruling granting summary judgment in favor of Dr. Amrani.
Application of the KCPA First, Williamson essentially contends the district court's summary judgment ruling in favor of Dr. Amrani was inappropriate in light of the KCPA's application to a physician's professional conduct in providing treatment to a patient.
Standard of Review
This court's standard of review on summary judgment is well established:
"'Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]' Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002)." Garrett v. Read, 278 Kan. 662, 667, 102 P.3d 436 (2004); see K.S.A. 60-256.
In this case, the district court decided that Dr. Amrani was entitled to judgment as a matter of law because the KCPA did not apply to a doctor's professional conduct in providing medical treatment to a patient. Resolution of this issue requires the court to interpret the KCPA. Statutory interpretation is a question of law subject to de novo review. Myers v. Board of Jackson County Comm'rs, 280 Kan. 869, 871, 127 P.3d 319 (2006).
"In resolving questions of statutory interpretation, this court follows a cardinal rule of statutory construction:
'It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in it.' [Citations omitted.]" State ex rel. Topeka Police Dept. v. $895.00 U.S. Currency, 281 Kan. 819, 825, 133 P.3d 91 (2006).
The Kansas Consumer Protection Act
Because the legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted, the analysis must begin with a review of the relevant provisions of the KCPA.
K.S.A. 50-623 provides in relevant part that the KCPA "shall be construed liberally to promote the following policies: (a) To simplify, clarify and modernize the law governing consumer transactions; [and] (b) to protect consumers from suppliers who commit deceptive and unconscionable practices." K.S.A. 50-624 broadly defines the terms "consumer," "supplier," and "consumer transaction." A "[c]onsumer" is defined as "an individual . . . who seeks or acquires property or services for personal, family, household, business or agricultural purposes." K.S.A. 50-624(b). A "[s]upplier" is defined as "a manufacturer, distributor, dealer, seller, lessor, assignor, or other person who, in the ordinary course of business, solicits, engages in or enforces consumer transactions, whether or not dealing directly with the consumer." K.S.A. 50-624(j). The term "[c]onsumer transaction" means "a sale, lease, assignment or other disposition for value of property or services within this state . . . to a consumer; or a solicitation by a supplier with respect to any of these dispositions." K.S.A. 50-624(c). The term "[s]ervices" includes "[w]ork, labor and other personal services" and "any other act performed for a consumer by a supplier." K.S.A. 50-624(i)(1), (3).
The plain language of the KCPA is broad enough to encompass the providing of medical care and treatment services within a physician-patient relationship. A physician is, in the ordinary course of business, a seller or supplier of services. See K.S.A. 50-624(j). A patient is a consumer of those services for personal, family, or business purposes. See K.S.A. 50-624(b). The sale of those services is a consumer transaction. See K.S.A. 50-624(c). Nothing in the KCPA explicitly excludes physicians or other professionals from the scope of its coverage. See, e.g., Moore v. Bird Engineering Co., 273 Kan. 2, 10-13, 41 P.3d 755 (2002) (KCPA applies to professional engineer who sells engineering services to consumer; engineer is a supplier and the sale of services is consumer transaction within scope of KCPA).
Furthermore, the KCPA does specifically exclude certain other persons and transactions from its scope. For example, insurance contracts regulated under state law are specifically excluded from the definition of consumer transactions. K.S.A. 50-624(c). The term "supplier" does not include "any bank, trust company or lending institution which is subject to state or federal regulation with regard to disposition of repossessed collateral by such bank, trust company or lending institution." K.S.A. 50-624(j). Also, the KCPA does not apply to "a publisher, broadcaster, printer or other person engaged in the dissemination of information or the reproduction of printed or pictorial matter so far as the information or matter has been disseminated or reproduced on behalf of others without actual knowledge that it violated the Kansas consumer protection act." K.S.A. 50-635. This shows that the legislature knows how to exclude certain categories of persons and transactions from the KCPA's coverage and could have done so with regard to physicians if it so intended.
Williamson cites various Kansas cases for the premise that professionals of all kinds are covered by the KCPA. See, e.g., Moore, 273 Kan. at 10-13 (KCPA applies to professional engineer who sells engineering services to a consumer); Hoffman v. Haug, 242 Kan. 867, 752 P.2d 124 (1988) (sale of house to purchaser through real estate agent is consumer transaction covered by KCPA; purchaser fits definition of consumer and real estate agent fits definition of supplier).
However, not all of the cases cited by Williamson stand for the proposition she advances. For example, Williamson cites Roy v. Young, 278 Kan. 244, 93 P.3d 712 (2004), for the premise that attorneys are subject to the KCPA. In Roy, plaintiff sued his attorney and law firm alleging legal malpractice and violations of the KCPA. The district court granted defendant's motion for summary judgment on the ground that plaintiff's claims were time barred. On appeal, plaintiff argued that the district court erred in finding that his malpractice claim was time barred, but he made no argument with regard to the court's decision that his KCPA claim was time barred. Thus, this court concluded he had abandoned any issue as to the KCPA claim. 278 Kan. at 248. The issue of whether the KCPA applies to claims against attorneys was not decided by the court in Roy.
Williamson also cites State ex rel. Stovall v. Martinez, 27 Kan. App. 2d 9, 996 P.2d 371, rev. denied 269 Kan. 941 (2000), for the premise that insurance claims consultants are subject to the KCPA. In that case, the attorney general alleged that the defendant, an insurance claims consultant, was engaged in the unauthorized practice of law and that his representations to consumers regarding his qualifications violated the KCPA. It is questionable whether an insurance claims consultant who engages in the unauthorized practice of law can be considered a "professional"; thus, this case is of little value in determining whether the KCPA is applicable to professionals generally.
Additionally, Williamson contends that this court has applied the KCPA to physicians in three cases: State ex rel. Stovall v. DVM Enterprises, Inc., 275 Kan. 243, 62 P.3d 653 (2003); State ex rel. Stovall v. Alivio, 275 Kan. 169, 61 P.3d 687 (2003); and State ex rel. Stovall v. ConfiMed.com, 272 Kan. 1313, 38 P.3d 707 (2002).
All three of these cases involved actions brought by the attorney general under the KCPA against physicians and companies that sold prescription drugs over the Internet without a physical examination of the patient. In none of the cases did the defendants argue that the KCPA did not apply to the providing of care or treatment within a physician-patient relationship. In both ConfiMed.com and DVM Enterprises, the issue was whether the defendants' conduct was unconscionable under the KCPA; this court found it was not. DVM Enterprises, 275 Kan. at 251-52, 255; ConfiMed.com, 272 Kan. at 1322-24. In Alivio, the issues on appeal were related to the defendant doctor's attempt to set aside a default judgment. See 275 Kan. at 172. None of the three cases directly addressed the issue presented in this case.
Williamson's citation of Moore, 273 Kan. 2, is more germane. In Moore, the plaintiff hired the defendant, an engineer, to design a bridge to be built on the plaintiff's residential property. After the plaintiff sued, the district court found against the defendant for breach of contract, breach of express warranty, negligence, and violations of the KCPA. The Court of Appeals reversed the judgment as to the KCPA violations, finding that there was no intent to deceive on the part of the defendant. The plaintiff petitioned for review of the Court of Appeals' holding, and the defendant cross-petitioned for review, questioning the application of the KCPA to professional engineering services.
In analyzing whether the KCPA applied, this court first noted that "K.S.A. 50-623 calls for the KCPA to be construed liberally to streamline the law of consumer transactions and to protect consumers from unscrupulous suppliers." 273 Kan. at 10. The Moore court then cited the KCPA's definitions of "consumer," "supplier," "consumer transaction," and its "very broad" definition of "services." 273 Kan. at 10-11. The court found that the plaintiff was a consumer–an individual who sought services for personal purposes, and that the defendant was a supplier–a person who engaged in consumer transactions in the ordinary course of business. 273 Kan. at 11. The defendant's sale of engineering services, i.e., the work in designing the bridge for the plaintiff, constituted a consumer transaction. This court noted the "comfortable fit" between the facts of the case and the statutory definitions of the KCPA. 273 Kan. at 11.
The defendant argued that, notwithstanding the apparent comfortable fit of the facts within the statutory framework of the KCPA, the KCPA was not intended to cover professional services. In support, the defendant cited Vort v. Hollander, 257 N.J. Super. 56, 607 A.2d 1339 (1992), a New Jersey case which held that state's Consumer Fraud Act was not intended to apply to an attorney's professional services.
The Moore court distinguished Vort, stating:
"The New Jersey court distinguished the legal profession on the basis that it is regulated exclusively by the state Supreme Court. 257 N.J. Super. at 62. Historically, attorneys were held to be exempt from liability under the Sherman Antitrust Act. That exemption was known as the 'learned profession' exemption. The learned profession[s] originally included only lawyers, medical doctors, and clergy. See The Learned Profession Exemption of the North Carolina Deceptive Trade Act: The Wrong Bright Line? 15 Campbell L. Rev. 223, 250-51 (1993).
"However, the application of the KCPA to the legal profession is not before us. The narrow issue before this court is whether the engineering services rendered in the present case are covered by the KCPA. We make no determination here as to application of the KCPA to other professional services." (Emphasis added.) 273 Kan. at 12.
Dr. Amrani offers several arguments as to why the KCPA would apply to engineers but should not be applied to physicians. These arguments include: cases from other jurisdictions in which it is concluded that those states' consumer protection statutes do not apply to actions against physicians when medical treatment is the gravamen of the suit; prior cases in this jurisdiction rejecting contract or fraud as the theoretical bases for professional liability suits; and the legislature's intent to create an alternative statutory scheme for medical malpractice suits. We will discuss each of these arguments
Application of Consumer Protection or Deceptive Trade Practice Laws
to Professional Services in Other Jurisdictions
While Moore only briefly mentioned the traditional learned profession exemption and found it irrelevant to the facts of that case, the exemption is of much more importance in the instant case, where the medical profession squarely falls into the category of learned professions. Although, as the Moore court recognized, there was historically a learned profession exemption from liability under the federal antitrust laws, that exemption was eroded by Goldfarb v. Virginia State Bar, 421 U.S. 773, 44 L. Ed. 2d 572, 95 S. Ct. 2004, reh. denied 423 U.S. 886 (1975). In Goldfarb, the United States Supreme Court recognized that the Sherman Antitrust Act contained no express exception for professionals. The Goldfarb Court held that the practice of law, as an "exchange of . . . service[s] for money," is "commerce" and falls within the scope of the Sherman Antitrust Act. 421 U.S. at 787-88. It also fails within the Federal Trade Commission (FTC) Act; see Flynn, Physician Business (Mal)practice, 20 Hamline L. Rev. 333, 339 (1996).
After Goldfarb, some states specifically exempted members of learned professions from the coverage under their consumer protection or deceptive trade practices acts (CPA or DTPA). See, e.g., Md. Comm. Law Code Ann. § 13-104 (2005) (Maryland); N.C. Gen. Stat. § 75-1.1(b) (2005) (North Carolina); Ohio Rev. Code Ann. § 1345.01(A) (Page 2006) (Ohio). At least one state specifically exempted "trade or commerce otherwise permitted under laws administered by any regulatory board or offices acting under statutory authority of this state of the United States." N.H. Rev. Stat. Ann. § 358-A:3(I) (1995 & 2006 Supp.) (New Hampshire). This provision has been interpreted as exempting attorneys who are governed by their own self-regulating board. Rousseau v. Eshleman, 128 N.H. 564, 567, 519 A.2d 243 (1986), reh. denied 129 N.H. 306, 529 A.2d 862 (1987). Kansas has not specifically exempted professionals from the application of the KCPA in this manner.
Most states, like Kansas, have left it to the courts to determine whether attorneys, physicians, and other learned professionals fall within the coverage of their consumer protection or deceptive trade practice acts. See Flynn, 20 Hamline L. Rev. at 339. Kansas courts have not been squarely faced with the issue of whether the KCPA covers a physician's professional conduct in providing medical care or treatment to a patient. However, the issue has been widely litigated in other jurisdictions with varying results. Many courts have interpreted the applicable statutory language as exempting professional conduct within the actual practice of law or medicine but not the entrepreneurial or business aspects of those practices. The district court in this case used the same approach.
One of the leading cases to make this distinction was Quimby v. Fine, 45 Wash. App. 175, 724 P.2d 403 (1986). In Quimby, the plaintiff filed a wrongful birth suit against a doctor who had substituted procedures during a tubal ligation surgery without the plaintiff's informed consent. The plaintiff brought an action for negligence and unfair and deceptive trade practices under the Washington CPA against the doctor based on theories of liability, negligence, and lack of informed consent.
The defendant doctor argued that the Washington CPA did not apply to either claim. The Quimby court cited Short v. Demopolis, 103 Wash. 2d 52, 61, 691 P.2d 163 (1984), a case which held that "certain entrepreneurial aspects of the practice of law may fall within the 'trade or commerce' definition" of the Washington CPA . Quimby extended the holding of Short and concluded that plaintiff's negligence claim did not fall within the scope of the Washington CPA "because it relates to the actual competence of the medical practitioner." 45 Wash. App. at 180. However, the Quimby court held that the plaintiff's lack of informed consent claim could fall within the scope of the Washington CPA "if it relates to the entrepreneurial aspects of the medical practice." 45 Wash. App. at 181. The court noted that a claim for lack of informed consent was not limited to a breach of the professional standard of care but "can be based on dishonest and unfair practices used to promote the entrepreneurial aspects of a doctor's practice, such as when a doctor promotes an operation or service to increase profits and the volume of patients, then fails to adequately advise the patient of risks or alternative procedures." 45 Wash. App. at 181.
Williamson cites several other cases which, like Quimby, have held that consumer protection laws can apply to misrepresentations made in professional practice. See Karlin v. IVF America, Inc., 93 N.Y.2d 282, 690 N.Y.S.2d 495, 712 N.E.2d 662 (1999) (patients of in vitro fertilization program who alleged that program had disseminated false success rates for program and misrepresented health risks presented could maintain action against program for deceptive practices and false advertising in violation of general business law and were not limited to medical malpractice claim based on lack of informed consent or barred from also asserting such a claim); Rhodes v. Sorokolit, 846 S.W.2d 618, 620-21 (Tex. Ct. App. 1993), aff'd Sorokolit v. Rhodes, 889 S.W.2d 239 (Tex. 1994) (Texas DTPA cause of action existed against plastic surgeon for misrepresentation and breach of express warranty where plastic surgeon promised patient's breasts would look just like those in Playboy picture and affirmatively stated there would be no problems with scarring or capsulization of implants); Chapman v. Paul R. Wilson, Jr., D.D.S., 826 S.W.2d 214, 218-220 (Tex. Civ. App. 1992) (Texas Medical Liability Act provision which exempts medical negligence from coverage under Texas DTPA did not also extend protection for physician's misrepresentations as to services to be provided; where defendant allegedly misrepresented expertise in wisdom teeth extraction and stated that general anesthesia would be used, plaintiff could bring DTPA claim); Eriks v. Denver, 118 Wash. 2d 451, 463-65, 824 P.2d 1207 (1992) (entrepreneurial aspects of practice of law fall within Washington CPA and are involved if purpose of concealing information was to gain clients or increase profits).
Dr. Amrani responds that all of the cases relied upon by Williamson hold that only the entrepreneurial activities of a physician fall under consumer protection laws. Dr. Amrani cites a litany of cases which distinguish between negligence claims and claims involving the entrepreneurial or business aspects of the practice of medicine. While many of the cases set out persuasive policy reasons for exempting purely professional medical treatment from consumer protection laws, there is one significant problem with relying on these cases in Kansas. In making the distinction between professional conduct in the actual practice of medicine and the entrepreneurial or business aspects of the medical profession, the cases generally rely on statutory language stating that the consumer protection or deceptive trade practices act in question applies to those engaging in "trade or commerce." Most of the cases cited by Dr. Amrani fall into this category. See Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 32-38, 699 A.2d 964 (1997) (Connecticut Uniform Trade Practices Act [CUTPA] applies to "conduct of any trade or commerce"; touchstone for legally sufficient CUTPA claim against health care provider is allegation that entrepreneurial or business aspect of provision of services is implicated, aside from medical competence or malpractice; to hold otherwise "would transform every claim for medical malpractice into a CUTPA claim"); Evanston Hosp. v. Crane, 254 Ill. App. 3d 435, 443-44, 627 N.E.2d 29 (1993) (Illinois Consumer Fraud Act applies to "conduct of any trade or commerce"; Consumer Fraud Act not available as additional remedy to redress patient's damages arising from alleged medical malpractice where patient alleged hospital's patient guide was deceptive in stating that hospital was committed to high-quality care when patient did not receive such care); Nelson v. Ho, 222 Mich. App. 74, 84, 564 N.W.2d 482 (1997) ("Only when physicians are engaging in the entrepreneurial, commercial, or business aspect of the practice of medicine are they engaged in 'trade or commerce' within the purview of the [Michigan CPA].").
The "trade or commerce" language contained in many states' consumer protection laws appears to be the source of the entrepreneurial test. However, the KCPA does not contain any similarly restrictive "trade or commerce" language.
In enacting the KCPA, Kansas was one of three states that substantially adopted the Uniform Consumer Sales Practices Act (UCSPA). Ohio and Utah also substantially adopted the UCSPA. Texas adopted an act which has some similar provisions. See 7A (Pt. 1) U.L.A. (UCSPA), pp. 69-70 (2002).
Because Ohio also uses the language of the UCSPA, Kansas has previously looked to Ohio law for guidance in interpreting the KCPA. See State ex rel. Miller v. Midwest Service Bur. of Topeka, Inc., 229 Kan. 322, 324, 623 P.2d 1343 (1981) (independent debt collection agency can be subject to provisions of KCPA under certain circumstances). In this instance, Ohio law is not helpful because Ohio has specifically excluded transactions between physicians and their patients from the definition of "consumer transaction." Ohio Rev. Code Ann. § 1345.01(A).
It does not appear that Utah courts have