Medical Negligence, Damages, and CPA: BARNETT V. MERCY HEALTH PARTNERS-LOURDES (COA 8/31/2007)

BARNETT V. MERCY HEALTH PARTNERS-LOURDES
TORTS: MEDICAL NEGLIGENCE AND CONSUMER PRACTICES ACT; INFORMED CONSENT
2006-CA-000889
PUBLISHED: AFFIRMING
PANEL: THOMPSON PRESIDING; COMBS, BUCKINGHAM CONCUR
COUNTY: MCCRACKEN
DATE RENDERED: 8/31/2007

In this lawsuit, the decedent was suspected of lymphoma and underwent surgery to remove it.  Complications developed and the decedent died later.  It was claimed by the decedent’s estate that the surgeon was intoxicated during surgery.  However, no evidence was offered at trial on damages which resulted in a dismissal of those claims for tort.  With regard to a claim that the hospital and surgeon violated the Consumer Practices Act, the COA concluded that there must be some nexus between the contract act and the business or entrepreneurial activity, and since there was none, the CPA violation must be dismissed. 

This lawsuit was brought by the personal representative (Barnett) following the decedents (Evert) death after surgery at Lourdes Hospital.  While evaluating Evert  for his complaints of chest pains, a physician discovered a lump under Evert’s arm. The physician believed the lump could be a lymphoma and so Evert underwent surgery to remove the lump.   Barnett alleges that the surgeon who performed the biopsy, Dr. Brunson, was intoxicated at the time of the surgery, that other personnel at Lourdes and in the operating room knew of Dr. Brunson’s condition, and that they unsuccessfully tried to stop him from performing the surgery. Following surgery, Evert developed some complications and ultimately suffered a stroke. Evert managed to live at home for a short period of time following his release from Lourdes, but he eventually was placed in a nursing home, where he died several months later.

Summary judgment was granted dismissing the personal injury claim for no damages shown. Furthermore, Barnett argues that the Kentucky Consumer Protection Act (the Act) applies to Lourdes and that he suffered damages as a result of Lourdes’s violation of provisions of the Act. Lourdes argues that Barnett failed to prove any damages based on the breach of contract claim and that, even if the Act applies to Lourdes, it did not violate any provisions of the Act and Barnett has failed to prove any damages under the Act.

Barnett argues that when he signed a document agreeing to be responsible for payment for Evert’s treatment, he created a contract with Lourdes Barnett is arguing that, in consideration for his agreement to pay for Evert’s treatment if insurance would not cover the expenses, Lourdes agreed to treat Evert, exercising appropriate care. Barnett argues that Lourdes breached the contract when it permitted an intoxicated surgeon to perform surgery on Evert. Finally, Barnett argues that he performed all of his obligations under the contract as Lourdes has been paid for its services.

To be enforceable, a "contract must contain definite and certain terms setting forth promises of performance to be rendered by each party."  Although the documents do not contain any specific promise by Lourdes to provide care or as to the quality of care, the fact that Lourdes rendered care implies such a promise. Therefore, we hold that an express contract existed between Barnett and Lourdes.

However, establishing the existence of a contract is not sufficient to sustain a cause of action for breach of contract. Barnett must also prove that Lourdes breached the contract and that he suffered damages as a result of that breach. In an action for breach of contract, the measure of damages "is that sum which will put the injured party into the same position he would have been in had the contract been performed." Perkins Motors, Inc. v. Autotruck Federal Credit Union, 607 S.W.2d 429, 430 (Ky.App. 1980).

Assuming for the sake of argument that Lourdes did breach the contract, Barnett has not put forth any evidence that he suffered any damages. Because Barnett has failed to prove that any amount was paid by the  estate to Lourdes on behalf of Evert, he has failed to prove that the estate suffered any damages. Therefore, whether a contract existed between Evert and Lourdes and whether any such contract was breached is of no consequence.

In order for the Act to apply, there must be some allegations that the actions complained of were part of the business aspect of the practice of medicine.  Such actions would include advertising for a particular procedure or surgery then failing to advise the patient of the risks involved or of alternative treatment; entering into a financial agreement that would increase profits to the possible detriment of patients; or advertising services at a particular cost then charging at a different rate.  Negligently performing surgery or providing treatment that is below the standard of care and failing to inform a patient of such actions are not included in the business aspect of the practice of medicine. Therefore, they are not covered under the Consumer Protection Act.

COA held that Barnett failed to provide any evidence of damages; therefore, the circuit court appropriately granted Lourdes’ motion for summary judgment. Furthermore,  because the actions of Lourdes did not involve the entrepreneurial, commercial, or business aspects of Lourdes’ practice of medicine, the Consumer Protection Act does not apply to this set of facts.

By Michael Stevens

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