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Bloom & Buell's

THE DOCTOR AS TRADESPERSON??

There was a time when the professions and the trades were different.  Like the farmers and the cowmen of the Old West, they looked at each other across a void.  The professions were defined as occupations that required specialized professional education, that commanded a defined body of knowledge and that passed such knowledge on from one generation to the next.  Trades required only elementary education and apprenticeship.

Medicine, law, and theology are the learned professions, according to the dictionary.  But the stroke of a pen has recently subjected medicine to a body of law regulating unfair trade practices.¹  This means that physicians are now subject to the same Massachusetts laws known as Chapter 93A as are manufacturers, trades people, store owners, real estate brokers and others in business.

In 1967 the Massachusetts legislature adopted sweeping consumer protection legislation which in part tracked federal legislation.  Called by some the "mini-FTC law," it is sub-titled, Regulation of Business Practices for Consumers' Protection.

For many years, application of Chapter 93A focused on unfair methods of competition, deceptive trade practices and unethical and unscrupulous business practices.  These actions had to meet the "raise the eyebrow" test.  The repairman, who towed the car to insure his payment, the baking-oven salesman who falsely assured the baker that his product would work and the printing press manufacturers who failed to warn of defects, were all found to have sufficient rascality to be liable for double to treble the damages plus attorneys fees under Chapter 93A.

By the late 1980's we began to see the top of the slippery slope which would throw professionals off balance.  First came the lawyers.  (At this point many of our readers will be found cheering!)  Cases held that certain professional services improperly rendered by lawyers could be considered 93A offenses.  One case involved a lawyer who tried to collect twice for the same service.

According to some decisions in Superior Court, doctors are now subject to Chapter 93A.  This is a serious development.  First, lawsuits brought under Chapter 93A must start with a §9 "demand" letter.  Unlike a summons and complaint, this letter might not be recognized for what it is by many physicians and their office staffs.   There are strict guidelines about what elements must be in the letter, and equally technical requirements for the response.  In addition, the law gives only thirty days for the response.  Response letters should not be undertaken by lay people.  Professional help from defense attorneys or claims personnel is well worth the time and effort.  The potential damages in a 93A action are double to treble the actual damages suffered by the patient, plus attorney fees.

While the courts of record in Massachusetts, the Appeals Court and Supreme Judicial Court, have not yet tarred the ordinary doctor/patient encounter with the stain of unfair trade practice, physicians may expect that this may happen, if an appropriate lawsuit should reach this appellate stage.  The last decade has seen a steady and continuous expansion of plaintiff's rights and benefits in many fields and medical practice has been no exception.

^{1    Hutchinson v. Randolph, et al., slip opinion, CA 94-5528, Middlesex, January 18, 1995, Cowin J.  We note that physicians' billing practices have long been thought to be subject to Chapter 93A.  The movement towards making their professional judgment subject to Chapter 93A is the new development.}

This commentary is not intended as legal advice. For advice on a specific case, you should contact the attorneys directly. Pursuant to Rule 3:07 of the Supreme Judicial Court Rules of the Commonwealth of Massachusetts, this communication may be considered advertising.