Negligence, Malpractice and Some Differences

There are occasions when lawyers who represent clients injured as the result of the misconduct of their dentist or physician would prefer to characterize the acts or omissions of the practitioner as other than an action based on negligence. An example might be where the statute of limitations might bar a negligent act but allow some other form of action. However, our State Supreme Court has said that no matter how the action is characterized, it may still remain an action for malpractice, not contract, not fraud and not anything else. In a decision of a few years ago where an action against a physician had been framed as a fraud case, the Kansas Supreme Court wrote, “[a] well recognized ground for recovery is where a physician represents that he has the skill to perform a certain operation when in fact he does not. This form of action requires the same elements of proof that an action in fraud requires, yet it could not be successfully disputed that as between the two it is an action for malpractice.”

There are important refinements to this rule, however. The same Kansas case has said that this does not mean that a doctor can never be liable for fraud or breach of contract. However, fraud, breach of contract or some form of action other than negligence, can only be based upon a physician’s misconduct if that misconduct is beyond a breach of the legal duties encompassed by the physician’s treatment of a patient. A doctor has the duty to obtain her patient’s informed consent to a procedure, for instance. Hence, the claim discussed in the quoted passage above, while possessing elements of misrepresentation, nonetheless, is predicated upon established duties of care owed by a practitioner to the patient. This does not preclude, however, a claim for fraud or breach of contract if its operative facts can be distinguished from the duties associated with the doctor/patient relationship. Also, under Kansas law, when the fraud of a health care provider occurs separately from and subsequent to the malpractice, an injured party has every right to seek recovery under a claim distinct from malpractice. Classic of such cases are where statements are made by the practitioner intended to conceal her malpractice.

The Kansas Consumer Protection Act (KCPA) invites additional comments. Because of amendments made in 2007, The KCPA does not allow for a private cause of action or remedy against a licensed health care provider for claims for personal injury resulting from “medical negligence”. However, it has been observed that there are significant differences between a KCPA claim and negligence, particularly, a medical malpractice negligence claim. Clearly, if the gravamen of the action arises from duties normally associated with those of the practitioner, then the 2007 amendments would bar the case. However, because of the differences between the two forms of action, and based on the current state of the law, it is possible for an injured patient to successfully prosecute a KCPA case under some circumstances where a negligence or common-law fraud claim might fail.