WA Legal Roundup - Washington State Supreme Court
Ambach went in for surgery, got a staph infection post surgery and had to have a fusion as a result. Ambach brought suit for medical negligence and for a CPA claim, the basis of which was the increased cost for surgery. In holding that the CPA claim did not fly, the court discussed the implications if CPA claims were allowed to ride on top of a standard personal injury claim with nothing more:
Ambach attempts to describe her qualifying injury as "specific and limited" to a traditional CPA claim of "the cost of a product . . . acquired due to fraud or deception." However, at hearing on the motion for summary judgment, Ambach agreed that her CPA injury was "part and parcel of a personal injury claim" but argued that the "damages" she suffered could be seen as distinct from malpractice damages if a jury decided there was a "consumer protection violation." Ambach's focus on her loss of money as a qualifying CPA injury ignores the larger reality of her claimed injury: "medical expenses, wage loss, loss of earning capacity, and out-of-pocket expenses" are, as Ambach has admitted, personal injury damages.
The court then looked at other elements of a CPA claim and found that those were lacking as well:
Ambach's failure to state a cognizable CPA claim is not just that she attempts to disguise her personal injuries as sounding in business or property, but also that she fails to allege the truly public nature of Dr. French's actions. In Michael v. Mosquera-Lacy, 165 Wn.2d 595, 200 P.3d 695 (2009), we held no CPA claim could be had where the claim relates to the doctor's "judgment and treatment of a patient," and the claimant fails to submit evidence that the injurious procedure was "advertised or marketed." Because Michael could not show that the dentist's office "advertised to the public in general" or actively solicited the claimant's business, we held she "failed to show her lawsuit would serve the public interest."