NEW YORK: Docs Can Be Sued Under Consumer Protection Laws

      New York state's highest court ruled yesterday that doctors and other providers "who advertise can be sued under the state's consumer fraud statutes by people who contend they didn't deliver on their claims." The court ruled on a claim by a couple against the nation's largest infertility treatment network, IVF America Inc., charging IVF's advertising mischaracterized their chances of conceiving (Eisenberg, Newsday, 5/5). A lower court initially threw the suit out, holding that the "state's General Business Law, which prohibits deceptive trade practices and false advertising, does not apply to 'the providers of medical services.'" But the Court of Appeals unanimously reversed that decision in a "ground-breaking" ruling (Caher, Albany Times Union, 5/5). Chief Judge Judith Kaye wrote, "When they choose to reach out to the consuming public at large in order to promote business -- like clothing retailers, automobile dealers and wedding singers -- they subject themselves to the standards of an honest marketplace" (Kennedy, New York Times, 5/5). The ruling "exposes doctors and health care companies to class-action lawsuits for up to six years -- generally double the statute of limitations on a medical malpractice action." State Attorney General Eliot Spitzer (D) said the decision also extends the power of his office to act against medical providers. "We want to ensure the consumers are protected, that the consumers are not misled by promises of treatment that prove to be illusory," he said (Times Union, 5/5).

Floodgates?
      Consumer groups applauded the decision as a means to rein in unscrupulous providers. Maryann Napoli, associate director of the Center for Medical Consumers, a watchdog group in Manhattan, said, "Deceptive advertising has been a long-standing problem" (Newsday, 5/5). But others say the ruling is likely to open the door to more civil cases, because they are often "easier for patients to win than cases alleging medical malpractice" (Times, 5/5). IVF attorney Nancy Ledy-Gurren said, "It's been my experience that when people are disappointed with the results of treatment, which can happen under the best of circumstances, they look to cast blame. And if general business law is considered an easier route to go by plaintiffs' lawyers, then we will see an onslaught of litigation" (Newsday, 5/5).