Williamson v. Amrani

Davis, J.,

dissenting: I respectfully dissent. The majority of this court concludes that the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq., applies to actions brought by patients against their physicians. According to the majority, the broad language of the KCPA defining “consumers,” “suppliers,” and “consumer transactions” may be read to encompass the physician-patient relationship because the physician (supplier) provides the patient (consumer) with medical care or treatment services (consumer transaction). The majority reasons that because the legislature did not explicitly exclude physicians from the scope of the KCPA, the KCPA must be “liberally construed” to allow the patient’s cause of action for deceptive (K.S.A. 50-626) or unconscionable (K.S.A. 50-627) acts or practices under the KCPA.

I respectfully disagree with the majority for a number of reasons. Most notably, the majority decision undervalues the importance of the Kansas regulatory and statutory scheme relating to health care professionals, as well as the broad policy statements by the legislature found throughout the Kansas statutes which distinguish the medical and health care professions from supplier-consumer transactions covered by the KCPA. In my opinion, the majority’s narrow reading of Kansas law — limiting its consideration to the KCPA alone, without seriously considering the statutes which specifically cover the health care professions — leads to the unreasonable result of “forcing” medical care or treatment into an uncomfortable and unintended KCPA action, thereby undermining Kansas’ public policy of providing acceptable health care for its citizens as expressed by our elected representatives.

Standard of Review

The majority correctly states this court reviews questions of statutory interpretation de novo and that “ ‘[i]t is a fundamental rule of statutory construction, to which all other rules are subordinate, *248that the intent of the legislature governs if that intent can be ascertained.’ ” State ex rel. Topeka Police Dept. v. $895.00 U.S. Currency, 281 Kan. 819, 825, 133 P.3d 91 (2006). Thus, “[w]hen a statute is plain and unambiguous, the court must give effect to the intention of the legislature expressed, rather than determine what the law should or should not be.” 281 Kan. at 825. Under this standard, the majority concludes that the “plain language of the KCPA is broad enough to encompass the providing of medical care or treatment services within a physician-patient relationship,” and therefore Williamson could bring a cause of action against Dr. Am-rani for a violation of the KCPA. 283 Kan. at 232.

While the majority correctly states that legislative intent is the keystone for all statutory interpretation, in my opinion its decision fails to give credence to the prior opinions of this court which do not require the court, when interpreting one statute or act, to view the entire act with blinders as to other statutes that also deal with a subject. This court has explained that “[i]n construing statutes or acts and determining legislative intent, several provisions of an act or acts, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible. [Citation omitted.]” (Emphasis added.) State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, 768, 69 P.3d 1087 (2003); Petty v. City of El Dorado, 270 Kan. 847, 852, 19 P.3d 167 (2001).

In Chelsea Plaza Homes, Inc. v. Moore, 226 Kan. 430, 601 P.2d 1100 (1979), for example, this court looked outside the KCPA to determine whether the legislature intended to include an action for a landlord’s “wrongful” eviction of a tenant under Kansas’ consumer protection laws. The court did not limit its consideration to the KCPA’s provisions, but it also considered the scope of the Kansas Residential Landlord Tenant Act (KRLTA), K.S.A. 58-2540 et seq., which provided a similar cause of action. See 226 Kan. at 431-32. Comparing these two acts, the Chelsea Plaza court explained:

“It is a cardinal rule of law that statutes complete in themselves, relating to a specific thing, take precedence over general statutes or over other statutes which deal only incidentally with the same question, or which might be construed to relate to it. Where there is a conflict between a statute dealing generally with a *249subject, and another dealing specifically with a certain phase of it, the specific legislation controls in a proper case. [Citations omitted.]” (Emphasis added.) 226 Kan. at 432.

While the Chelsea Plaza court recognized that the language of the KCPA which defined “consumer,” “supplier,” and “consumer transaction” was “clearly broad enough to include all leases of real estate,” this court nevertheless held that the KCPA did not extend to transactions otherwise covered by the KRLTA. 226 Kan. at 433-34. Thus, despite the “plain language” of the KCPA, which would otherwise encompass the type of KCPA action brought in Chelsea Plaza, we recognized that the legislature’s treatment of landlord-tenant transactions in other statutory sections created an inherent ambiguity in the language of the KCPA. As discussed below, the same may be said in the case we now consider.

The majority seeks to distinguish Chelsea Plaza on the basis that there is “no single act or all-encompassing statutory scheme concerning medical malpractice which could be compared to the Kansas Residential Landlord and Tenant Act.” 283 Kan. at 243. I believe that the majority opinion not only mischaracterizes the legislature’s extensive treatment of the medical and health care professions, but it also fails to recognize that while Chelsea Plaza states that a “complete” act (like the KRLTA) is clear evidence of a legislative intent to exclude a particular cause of action under the KCPA, “[t]he underlying premise of this rule is that the most specific statute is also the clearest expression of legislative intent. [Citation omitted.] Thus, the Chelsea Plaza principle is a device for determining which of two state statutes the legislature intended to apply to a particular situation.” (Emphasis added.) State ex rel. Stephan v. Brotherhood Bank and Trust Co., 8 Kan. App. 2d 57, 63, 649 P.2d 419, rev. denied 232 Kan. 876 (1982).

I do not believe that we may turn a blind eye to the legislature’s other enactments that deal specifically with medical malpractice and health care professionals, for “ ‘statutes are construed to avoid unreasonable results. There is a presumption that the legislature does not intend to enact useless or meaningless legislation.’ [Citations omitted.]” Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 89, 106 P.3d 492 (2005).

*250“In the construction of statutes and reconciliation of conflicts, the court must always ascertain the intention of the legislature, if it can be done, from the subject matter of tire statutes, and where there is a conflict, the entire context of the statutes and the consequences of their enactment may be taken into consideration. [Citation omitted.]” (Emphasis added.) State, ex rel., v. Throckmorton, 169 Kan. 481, 486, 219 P.2d 413 (1950).

In my opinion, the resolution of the case we now consider does not stop with the narrow determination that the language of the KCPA is “broad enough” to encompass claims brought by a patient against his or her physician. Instead, tire analysis must continue with a question of whether such an interpretation is reasonable in light of the legislature’s extensive statutory enactments relating to regulation of the health care professions, to medical malpractice, and to mandatory insurance for health care providers for actions alleging medical malpractice. I would conclude that the majority’s interpretation is not reasonable in light of the legislature’s all-encompassing statutory scheme relating to health care professionals, including physicians, the practice of medicine within this state, and the adverse effect the majority’s interpretation would likely have upon the public health and welfare of Kansas citizens.

Kansas’ Extensive Statutory Treatment of the Medical and Health Care Professions

Resolution of the issue in this case necessarily begins with the interpretation of the provisions of the KCPA but, in my opinion, does not end there. Consideration of the issue must also include an analysis of the legislature’s extensive treatment of the medical and health care professions found throughout Kansas’ statutory scheme.

KCPA

The KCPA is contained in Chapter 50 of the Kansas statutes, which covers unfair trade and consumer protection. As the majority notes, the KCPA contains very generalized definitions of “consumer,” “supplier,” “consumer transaction,” and “services.” According to K.S.A. 50-624:

“(b) ‘Consumer means an individual, husband and wife, sole proprietor, or family partnership who seeks or acquires property or services for personal, family, household, business or agricultural purposes.
*251“(c) ‘Consumer transaction’ means a sale, lease, assignment or other disposition for value of property or services within this state (except insurance contracts regulated under state law) to a consumer; or a solicitation by a supplier with respect to any of these dispositions.
“(i) ‘Services’ includes:
(1) Work, labor and other personal services;
(2) privileges with respect to transportation, hotel and restaurant accommodations, education, entertainment, recreation, physical culture, hospital accommodations, funerals and cemetery accommodations; and
(3) any other act performed for a consumer by a supplier.
“(j) ‘Supplier’ means a manufacturer, distributor, dealer, seller, lessor, assignor, or other person who, in the ordinary course of business, solicits, engages in or enforces consumer transactions, whether or not dealing directly with the consumer. Supplier does not include any bank, trust company or lending institution which is subject to state or federal regulation with regard to disposition of repossessed collateral by such bank, trust company or lending institution.”

The legislature’s policy behind the enactment of the KCPA is described in K.S.A. 50-623, which states that the KCPA “shall be construed liberally to promote” four policies:

“(a) To simplify, clarify and modernize the law governing consumer transactions;
“(b) to protect consumers from suppliers who commit deceptive and unconscionable practices;
“(c) to protect consumers from unbargained for warranty disclaimers; and
“(d) to provide consumers with a three-day cancellation period for door-to-door sales.”

Citing the above language in Chelsea Plaza, this court explained that “[cjlearly, tire [Kansas] Consumer Protection Act covers a very broad area of transactions.” (Emphasis added.) Chelsea Plaza Homes, 226 Kan. at 434.

Public Health

The legislature’s statutory treatment of the medical and health care professions begins within Chapter 65 of the Kansas statutes, K.S.A. 65-101 et seq., which specifically relates to public health. The legislature provides a number of statements throughout its statutory scheme regarding the importance of the state’s regulation of health care. For example, K.S.A. 65-4914, dealing with health care and peer review of medical and health care professionals in *252liability actions, explains that the touchstone of Kansas’ regulatory treatment of health care is a balancing act based on “reasonableness”:

“It is the declared public policy of the state of Kansas that the provision of health care is essential to the well-being of its citizens as is the achievement of an acceptable quality of health care. Such goals may be achieved by requiring a system which combines a reasonable means to monitor the quality of health care with the provision of a reasonable means to compensate patients for the risks related to receiving health care rendered by health care providers licensed by the state of Kansas.” (Emphasis added.)

The Kansas Healing Arts Act (KHAA), K.S.A. 65-2801 et seq., which specifically covers physicians, see K.S.A. 65-2869, establishes an extensive regulatory scheme which outlines the education, licensing, and professional and ethical standards imposed on members of the healing arts. The “healing arts” are defined by K.S.A. 65-2802(a) as

“any system, treatment, operation, diagnosis, prescription, or practice for the ascertainment, cure, relief, palliation, adjustment, or correction of any human disease, ailment, deformity, or injury, and includes specifically but not by way of limitation the practice of medicine and surgery; tire practice of osteopathic medicine and surgery; and the practice of chiropractic.”

K.S.A. 65-2801 describes the policy behind the enactment of the KHAA. The legislature explicitly stated:

“Recognizing that the practice of the healing arts is a privilege granted by legislative authority and is not a natural right of individuals, it is deemed necessary as a matter of policy in the interests of public health, safety and welfare, to provide laws and provisions covering the granting of that privilege and its subsequent use, control and regulation to the end that the public shall be properly protected against unprofessional, improper, unauthorized and unqualified practice of the healing arts and from unprofessional conduct by persons licensed to practice under this act.” (Emphasis added.)

To this end, the legislature established the State Board of Healing Arts for “the purpose of administering” the KHAA, K.S.A. 65-2812 through K.S.A. 65-2823, and outlined specific licensing, examination, and good standing requirements for continued practice of the healing arts professions in this state. See K.S.A. 65-2803 through K.S.A. 65-2811a (licensing); K.S.A. 65-2824 through K.S.A. 65-*2532835 (examination and good standing); K.S.A. 65-2869 (persons deemed engaged in the practice of medicine and surgery).

In addition, K.S.A. 65-2836 sets forth the grounds for license suspension or revocation under the KHAA. Of interest here, the statute includes the following possible violations:

“(b) The licensee has committed an act of unprofessional or dishonorable conduct or professional incompetency.
“(d) The licensee has used fraudulent or false advertisements.
“(w) The licensee has an adverse judgment, award or settlement against the licensee resulting from a medical liability claim related to acts or conduct similar to acts or conduct which would constitute grounds for disciplinary action under this section.” K.S.A. 65-2836.

The KHAA defines “unprofessional conduct” in K.S.A. 65-2837(b) as:

“(1) Solicitation of professional patronage through the use of fraudulent or false advertisements, or profiting by the acts of those representing themselves to be agents of the licensee.
“(2) Representing to a patient that a manifestly incurable disease, condition or injury can be permanently cured.
“(8) Advertising to guarantee any professional service or to perform any operation painlessly.
“(12) Conduct likely to deceive, defraud or harm the public.
“(13) Making a false or misleading statement regarding the licensee’s skill or the efficacy or value of tire drug, treatment or remedy prescribed by the licensee or at the licensee’s direction in the treatment of any disease or other condition of the body or mind.
“(18) Obtaining any fee by fraud, deceit or misrepresentation.
“(24) Repeated failure to practice healing arts with that level of care, skill and treatment which is recognized by a reasonably prudent similar practitioner as being acceptable under similar conditions and circumstances.”

“Advertisements” are defined in the KHAA as “all representations disseminated in any manner or by any means, for the purpose of inducing, or which are likely to induce, directly or indirectly, the purchase of professional services.” K.S.A. 65-2837(d).

*254The legislature authorized the State Board of Healing Arts to take disciplinary action against physicians or other health care professionals who violate the requirements of the KHAA. K.S.A. 65-2838. The KHAA establishes a disciplinary counsel and committee to oversee the healing arts professions. K.S.A. 65-2840a. In the event of a potential violation, proceedings may be instituted against the violator by the attorney general, county attorney, or district attorney. K.S.A. 65-2866. If the Board determines that a violation has taken place, the violator shall be deemed guilty of a misdemeanor and may be required to pay both criminal fines (K.S.A. 65-2862) and civil fines (K.S.A. 65-2863a).

While the KHAA does not establish a private statutory cause of action for patients who have been injured, it nevertheless contemplates the existing landscape of medical malpractice. See, e.g., K.S.A. 65-4901(establishing medical malpractice screening panels “[i]f a petition is filed in a district court of this state claiming damages for personal injury or death on account of alleged medical malpractice of a health care provider”).

Evidence of the legislature’s concern with the regulation of the healing arts is not limited to the KHAA, or even to Chapter 65. Article 34 of Chapter 40 of the Kansas statutes, K.S.A. 40-3401 et seq., provides a comprehensive treatment of the professional liability of health care providers and the requirement of liability insurance for medical and health care professionals. Specifically, K.S.A. 40-3402(a) requires all health care professionals who wish to practice within the state to carry mandatoiy malpractice liability insurance. The legislature further established the health care stabilization fund in order to assure that individuals injured through a physician’s or health care provider’s professional malpractice will be compensated. See K.S.A. 2006 Supp. 40-3403(a). This fund is held in trust by the state and monitored by a state-appointed board of governors, which is subject to extensive review and regulation. See generally K.S.A. 2006 Supp. 40-3403. There is no indication within the statutes relating to the health care stabilization fund that its monies are intended to compensate actions brought by patients against their physicians or other health care professionals under the KCPA.

*255Further iteration of the legislature’s concerns relating to the regulation of medical malpractice insurance is found in Article 34 of Chapter 60 of the Kansas statutes, K.S.A. 60-3404 et seq., which deals exclusively with the issue of professional liability of health care providers. The policy statement contained in K.S.A. 60-3405 is explicit and discusses a number of weighty concerns:

“Substantial increases in costs of professional liability insurance for health care providers have created a crisis of availability and affordability. This situation poses a serious threat to the continued availability and quality of health care in Kansas. In the interest of the public health and welfare, new measures are required to assure that affordable professional liability insurance will be available to Kansas health care providers, to assure that injured parties receive adequate compensation for their injuries, and to maintain the quality of health care in Kansas.” (Emphasis added.)

In my opinion, adding another separate cause of action against health care providers under the KCPA exacerbates the crisis of availability and affordability of health care for Kansas citizens. There is no evidence in the record to establish that insurance for health care providers is available to cover additional actions under the KCPA. Moreover, litigation expenses covered by the mandatory professional liability insurance for health care providers would not cover actions under the KCPA. The majority decision that Dr. Amrani’s providing of medical care and treatment is covered by the KCPA essentially establishes that all health care providers are covered by the KCPA with the result of increased litigation, increased costs of defending KCPA actions by health care providers, increased insurance expenses, and, ultimately, an increase in the costs of medical care. Ultimately, the majority decision regarding the KCPA conflicts with Kansas’ extensive statutory scheme governing public health and the health care professions as well as the expressed public policy to maintain the quality of health care in Kansas.

The legislature’s concern relating to the increased costs of medical malpractice actions and insurance also permeates the public health statutes in Chapter 65. See Fieser v. Kansas Bd. of Healing Arts, 281 Kan. 268, 274, 130 P.3d 555 (2006) (citing Minutes, House Judiciary Comm., Interim Comm. Report, January 21, 1986, *256and noting that the legislature amended the KHAA in 1986 and that “[ejnhanced Board disciplinary power was sought, in the hope such peer review would decrease the number of medical malpractice lawsuits filed”). K.S.A. 60-3404 through K.S.A. 60-3414 were part of the 1986 “sweeping and comprehensive” medical malpractice act. See L. 1996, ch. 229 (H.B. 2661); Comment, Caps, “Crisis,” and Constitutionality-Evaluating the 1986 Kansas Medical Malpractice Legislation, 35 U. Kan. L. Rev. 763, 764 (1987). This legislation included, among other provisions, an amendment allowing for the admissibility of screening panel review determinations at subsequent trials, K.S.A. 65-4904(c); the addition of an internal risk management program requirement for medical care facilities, K.S.A. 65-4922; damages caps on recovery in medical malpractice actions, K.S.A. 60-3411 (since repealed, L. 1989, ch. 143, sec. 10); and the requirements for expert witnesses in K.S.A. 60-3412. The broad-sweeping act was apparently “prompted by the fear that the escalating cost of medical liability insurance would drive health care providers out of certain areas of practice, or even out of the state.” Comment, 35 U. Kan. L. Rev. at 776. The same maybe said of adding a new, separate action under the KCPA against doctors or health care professionals in the fields of their practice.

Yet while these concerns expressed by the legislature are grave, the provisions of K.S.A. 60-3406 through K.S.A. 60-3408 adopted in the 1980s “apply only to medical malpractice liability actions which are based on causes of action accruing on or after July 1, 1986.” (Emphasis added.) K.S.A. 60-3410. It is evident that the policy statement regarding insurance and continuing provisions for health care providers in Kansas did not contemplate actions against physicians or health care professionals for care and treatment services being brought under the KCPA, which was originally adopted in 1973. See L. 1973, ch. 217, secs. 1-21.

Not only does the legislature’s explicit concern for the rising litigation and insurance costs relating to medical malpractice belie the majority’s conclusion that the legislature intended the KCPA to cover new actions by a patient against a physician, but in my opinion it is unreasonable in light of the legislature’s specific treatment of health care professionals’ liability insurance. Article 35 of *257Chapter 60 of the Kansas statutes, K.S.A. 60-3501 et seq., which relates to “professional malpractice” for “professional licensees,” among others, engineers, specifically excludes a discussion of health care professionals from other potential varieties of professional malpractice. K.S.A. 60-3501(a). Instead, the legislature has dealt separately and comprehensively with the issues of health care professionals’ liability actions and insurance, indicating that it did not intend to group these issues together with its regulation of other professional misconduct. See K.S.A. 60-3404 et seq.; K.S.A. 40-3401 et seq.

Moreover, the legislature’s designation of a specific statute of limitations for actions against health care providers regarding services rendered gives further credence to the fact that the legislature did not intend to include actions arising out of a physician’s practice of medicine under the KCPA. As the majority correctly notes, Kansas courts have held that the proper statute of limitations for actions filed under the KCPA is 3 years, pursuant to K.S.A. 60-512(2) (an action created by statute). See Haag v. Dry Basement, Inc., 11 Kan. App. 2d 649, 650, 732 P.2d 392, rev. denied 241 Kan. 838 (1987). The majority states that “actions -under the KCPA are statutorily created causes of action” and that “[t]he plain language of the KCPA provides such a statutoiy remedy [in this case] since a physician provides a service to a consumer.” Williamson, 283 Kan. at 242.

However, health care providers are covered by a different statute of limitations than that required for the KCPA under K.S.A. 60-512(2). K.S.A. 60-513(a)(7) specifically provides that its 2-year statute of Hmitations applies to “[a]n action arising out of the rendering of or failure to render professional services by a health care provider, not arising on contract.” (Emphasis added.) K.S.A. 60-513d defines “health care provider” for purposes of the statute of limitations to include, among other medical professionals, “a person licensed to practice any branch of the healing arts.” Kansas courts have generally categorized the injuries that fall under the umbrella of K.S.A. 60-513(a)(7) as actions for “medical malpractice.” See Martindale v. Tenny, 250 Kan. 621, 634, 829 P.2d 561 (1992).

K.S.A. 60-513(a)(7) was adopted by the legislature in 1976, 3 years after the original enactment of the KCPA. Compare L. 1976, *258ch. 254, sec. 1 with L. 1973, ch. 217, secs. 1-21. This chronology demonstrates that tire Kansas Legislature did not consider actions that arise out of physicians’ or other health care professionals’ treatment services to patients as being within the reach of consumer protection, as defined by the KCPA. Instead, the legislature has specifically distinguished between actions involving medical care and treatment services for statutes of limitations purposes and other actions. To interpret the KCPA as covering physician-patient relationships arising out of a physician’s provision of medical services, as the majority does here, is to ignore and nullify tire plain language of K.S.A. 60-513(a)(7), which explicitly states that it applies to any action arising out of “professional services” rendered by “a health care provider.”

The majority ultimately rejects Dr. Amrani’s argument that the KCPA should not be interpreted as providing an additional cause of action for patients against their physicians in the rendering of medical care and treatment, and concludes that “[wjhile the legislature has passed various pieces of legislation affecting various aspects of medical malpractice litigation, it has not passed any legislation which precludes coverage for medical negligence claims under the KCPA.” Williamson, 283 Kan. at 243.

I respectfully disagree with the majority’s conclusion and believe that it is flawed for a number of reasons. First, the above discussion of the legislature’s extensive statutory treatment of the medical and other health care professions, medical malpractice liability, and mandatory insurance for health care professionals, as well as its explicit statement in K.S.A. 65-4914 regarding the importance of balancing the public’s interest in the availability of quality health care against the interest in private compensation for those injured, indicate that it would be unreasonable to read into the KCPA such a cause of action without specific language establishing such liability.

In addition, the majority’s conclusion implies that the permeation of the legislature’s stated policy throughout Kansas’ extensive statutory scheme relating to public health actually prevents this court from finding such legislation is “complete” for purposes of statutory interpretations. Cf. Chelsea Plaza Homes, 226 Kan. at *259432. To me, the majority’s conclusion is counterintuitive. The legislative expression of the numerous explicit policy statements balancing the public and private interests throughout the statutory scheme relating to health care professionals indicates that the legislature found the balance extremely important. Moreover, despite its numerous policy statements relating to the health care system in Kansas, the legislature chose to remain silent regarding physicians and the KCPA. In my opinion, these reasons support a conclusion that the legislature did not intend for medical or health care treatment provided by a doctor or other health care professional to fall under the purview of this state’s consumer protection laws.

Contrary to the majority’s conclusion, I am of the opinion that the legislature did not intend for a physician to be liable to his or her patients under the KCPA for the rendering of care or treatment services associated with the practice of medicine. This conclusion I believe construes both the KCPA and other statutory acts involving the practices of medicine and health care in this state, in pari materia, reconciling and bringing them into a workable harmony. Additionally, this conclusion supports the well-recognized rule that when considering statutes or acts of general application, the KCPA, and a specific, comprehensive statutory scheme relating the practices of physicians or other health care professionals in Kansas “the most specific statute[s or acts are] . . . the clearest expression of legislative intent.” State ex rel. Stephan v. Brotherhood Bank and Trust Co., 8 Kan. App. 2d 57, 63, 649 P.2d 419, rev. denied 232 Kan. 876 (1982).

Decisions of Other Jurisdictions

As the majority opinion recognizes, other jurisdictions which have been faced with this conflict between their consumer protection laws and the specific statutes regulating the medical and other health care professions have drawn a distinction between allegations involving the entrepreneurial aspects of the medical profession, which give rise to consumer protection claims, and allegations involving the actual practice of providing medical care or treatment by a health care professional, which are covered by those states’ *260regulation of the health care professions and medical malpractice law. For example, in Evanston Hosp. v. Crane, 254 Ill. App. 3d 435, 443-44, 627 N.E.2d 29 (1993), an Illinois appellate court rejected a cause of action under the Illinois Consumer Fraud Act which (like the claim made by Williamson in the case we now consider) involved allegations of misrepresentations by a physician to a patient regarding the quality of health care the physician would provide. The court explained:

“The misconduct alleged here . . . amounts to professional malpractice, and cannot be equated with die misdeeds of an ordinary commercial enterprise, against which the Consumer Fraud Act was expressly enacted to protect ‘consumers’ and ‘businessmen.’ [Citation omitted.] Although the practice of medicine may have a business aspect, the commercial phases of medicine which directly affect the public are not at issue here. The Consumer Fraud Act ‘is intended to reach practices of the type which affect consumers generally and is not available as an additional remedy to redress a purely private wrong.’ [Citation omitted.]” 254 Ill. App. 3d at 444.

The courts of Michigan, Connecticut, and Washington have come to similar conclusions with regard to the scope of the consumer protection acts of those states. See Nelson v. Ho, 222 Mich. App. 74, 83, 564 N.W.2d 482 (1997) (holding that “only allegations of unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of the entrepreneurial, commercial, or business aspect of a physician’s practice may be brought under the [Michigan] CPA”); Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 34, 699 A.2d 964 (1997) (Court concluded that “professional negligence — diat is, malpractice — does not fall under [Connecticut Unfair Trade Practices Act] CUTPA. Although physicians and other health care providers are subject to CUTPA, only the entrepreneurial or commercial aspects of the profession^] are covered.”); Quimby v. Fine, 45 Wash. App. 175, 180, 724 P.2d 403 (1986) (finding that claims relating “to the actual competence of the medical practitioner” are not actionable under the Washington Consumer Protection Act).

The majority seeks to dismiss the reasoning of these cases because the consumer protection statutes reviewed contained the phrase “trade or commerce” in their discussions of the scope of *261their acts. See Conn. Gen. Stat. Ann. § 42-110b(a) (2000 & 2006 Supp.); Ill. Comp. Stat. ch. 815 505/2 (1999); Mich. Comp. Laws § 445.903(1) (2002 & 2006 Supp.); Wash. Rev. Code § 19.86.020 (1999 & 2007 Supp.). According to the majority, the fact that “the KCPA does not contain any similarly restrictive Trade or commerce’ language” renders those states’ decisions unpersuasive. Williamson, 283 Kan. at 239.

However, the majority fails to look beyond those states’ use of the phrase “trade or commerce” to the broad definition of this phrase within the states’ respective consumer protection statutes. The use of “trade or commerce” is not “restrictive,” but rather it is defined within those acts to encompass a broad array of transactions. The Connecticut Unfair Trade Practices Act defines “ ‘[tjrade’ and ‘commerce’ ” as “the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state.” Conn. Gen. Stat. Ann. § 42-110a(4) (2006 Supp.). The Illinois Consumer Fraud Act contains a similarly broad definition, stating:

“The terms ‘trade’ and ‘commerce’ mean the advertising, offering for sale, sale, or distribution of any services and any property, tangible or intangible, real, personal or mixed,- and any other article, commodity, or thing of value wherever situated, and shall include any trade or commerce directly or indirectly affecting tire people of this State.” Ill. Comp. Stat. ch. 815 505/1(f) (1999).

The Michigan Consumer Protection Act likewise defines “ ‘[tjrade or commerce’ ” as

“the conduct of a business providing goods, property, or service primarily for personal, family, or household purposes and includes the advertising, solicitation, offering for sale or rent, sale, lease, or distribution of a service or property, tangible or intangible, real, personal, or mixed, or any other article, or a business opportunity.” Mich. Comp. Laws § 445.902(d) (2002).

See also Wash. Rev. Code § 19.86.010(2) (1999 & 2007 Supp.) (“ ‘Trade’ and ‘commerce’ shall include the sale of assets or services, and any commerce directly or indirectly affecting the people of the state of Washington.”).

*262Contrary to the majority’s conclusion that the “trade or commerce” language restricts the scope of those states’ consumer protection acts, a consideration of those states’ definitions of “trade or commerce” for consumer protection purposes illustrates their acts’ far-reaching scope. See Nelson, 222 Mich. App. at 78 (explaining that the Michigan Consumer Protection Act “broadly defines Trade or commerce’ ”).

Furthermore, the definitions of “trade or commerce” in Connecticut, Illinois, and Michigan do not differ greatly from the definition of a “consumer transaction” under the KCPA. See K.S.A. 50-624(c), which defines a “ ‘[cjonsumer transaction’ ” as “a sale, lease, assignment or other disposition for value of property or services within this state (except insurance contracts regulated under state law) to a consumer; or a solicitation by a supplier with respect to any of these dispositions.” Thus, while the KCPA does not use the exact phrase “trade and commerce,” the actual scope of the KCPA is not any broader than the other states’ acts discussed above.

I am of the opinion that the discussion found in those opinions regarding “trade or commerce” is relevant and enlightening with regard to other jurisdictions’ interpretation of consumer protection statutes which, similar to Kansas, contain no explicit exception for physicians or other health care professionals. As the Michigan Court of Appeals persuasively explained in Nelson,

“[w]e do not consider the Legislature's use of'trade or commerce' in defining the application of the act to exhibit an intent to include the actual performance of medical services or the actual practice of medicine. If we were to interpret the act as such, the legislative enactments and well-developed body of law concerning medical malpractice could become obsolete. While we are aware of the expense and difficulty in maintaining a medical malpractice action, we do not think the MCPA was meant by the Legislature to be an alternative to its specific statutory scheme addressing medical malpractice claims. Only when physicians are engaging in tire entrepreneurial, commercial, or business aspect of the practice of medicine are they engaged in ‘trade or commerce’ within the purview of the MCPA.” (Emphasis added.) Nelson, 222 Mich. App. at 83-84.

Similarly, the Connecticut Supreme Court held that “[mjedical malpractice claims recast as CUTPA claims cannot form the basis for a CUTPA violation. To hold otherwise would transform every *263claim for medical malpractice into a CUTPA claim.” (Emphasis added.) Haynes, 243 Conn. at 38; see also S & D Environmental v. Rosenberg, 334 N.J. Super. 305, 318, 759 A.2d 360 (1999) (finding that the New Jersey Consumer Fraud Act “does not apply to claims based on allegations that a member of a regulated profession provided negligent or wrongful advice”).

The Illinois Supreme Court provides a thorough discussion of this issue in the relatively recent case of Cripe v. Leiter, 184 Ill. 2d 185, 703 N.E.2d 100 (1998), reh. denied November 30, 1998, where the court considered whether actions for legal malpractice came within the gambit of the Illinois Consumer Fraud Act. The court explained in detail:

“Our Consumer Fraud Act, like tiróse discussed in the preceding cases from other jurisdictions, contains no language expressly excluding or including the legal profession loithin its ambit. Despite the absence of such language, there appears to be little dispute among the decisions addressing this issue that consumer protection statutes do not apply to claims arising out of the ‘actual practice of law.’
“Historically, the regulation of attorney conduct in this state has been the prerogative of this court. [Citations omitted.] In the exercise of this power, this court administers a comprehensive regulatory scheme governing attorney conduct. The Illinois Rules of Professional Conduct adopted by this court set forth numerous requirements to which attorneys in this state must adhere. [Citation omitted.] Violation of tírese rules is grounds for discipline. This court has appointed an Attorney Registration and Disciplinary Commission (ARDC) to supervise the ‘registration of, and disciplinary proceedings affecting, members of tire Illinois bar.’ [Citation omitted.] This court has also created a procedural scheme under which the ARDC operates, providing detailed regulations involving inquiry, hearing and review boards. [Citation omitted.] The purpose of this regulatory scheme is to protect the public and maintain the integrity of the legal profession. [Citation omitted.]
“Accordingly, the attorney-client relationship in this state, unlike the ordinary merchant-consumer relationship, is already subject to extensive regulation by this court. The legislature did not, in the language of the Consumer Fraud Act, specify that it intended the Act’s provisions to apply to the conduct of attorneys in relation to their clients. Given this court’s role in that arena, we find that, had the legislature intended the Act to apply in this manner, it would have stated that intention with specificity. [Citation omitted.] Absent a clear indication by the legislature, we will not conclude that the legislature intended to regulate attorney-client re*264lationships through the Consumer Fraud Act.” (Emphasis added.) Cripe, 184 Ill. 2d at 195-97.

See also Evanston Hosp., 254 Ill. App. 3d at 443-44 (concluding that the Illinois Consumer Fraud Act covers neither actions for medical nor legal malpractice and that “[t]he Consumer Fraud Act Is intended to reach practices of the type which affect consumers generally and is not available as an additional remedy to redress a purely private wrong’ ”).

Contrary to the persuasive reasoning of the above decisions dealing with similar consumer protection acts, the majority here finds that the KCPA does provide a remedy for patients against their health care providers, in addition to medical malpractice law.

The majority declines to recognize an exemption for health care professionals, despite the Kansas Legislature’s extensive treatment of medical malpractice and the medical and other health care professions, in part because the KCPA contains other explicit exceptions and makes no mention of physicians or other health care professions. However, in my opinion this argument is not persuasive. All of the specific exemptions included in the KCPA and cited by the majority are for transactions that, absent the specific language of the legislature, would fit “comfortably” within the “consumer transaction” scheme of the KCPA. See K.S.A. 50-624(j) (stating that the term “supplier” does not include “any bank, trust company or lending institution which is subject to state or federal regulation with regard to disposition of repossessed collateral by such bank, trust company or lending institution”); K.S.A. 50-635 (excluding from actions under the KCPA “a publisher, broadcaster, printer or other person engaged in the dissemination of information or tire reproduction of printed or pictorial matter so far as the information or matter has been disseminated or reproduced on behalf of others without actual knowledge that it violated the Kansas consumer protection act”); see also Moore v. Bird Engineering Co., 273 Kan. 2, 11, 41 P.3d 755 (2002) (concluding that transactions with engineers are covered by the KCPA and stating that “[t]he comfortable fit of the present parties and transaction within the statutory definitions confirms the district court’s impression that the KCPA applies”).

*265Absent the majority’s broadening of the KCPA to encompass the providing of medical care or treatment within a physician-patient relationship, I am of the opinion that there is no reasonable argument for subjecting a physician’s or other health care professional’s care or treatment to actions under the KCPA. Unlike banks, publishers, or engineers, the treatment provided by a health care professional to a patient does not “comfortably fit” within the consumer protection scheme. As the legislature has recognized, the practices of medicine and health care are both a science and an art. See K.S.A. 65-2801 et seq. Moreover, the legislature has by its extensive declarations in the public health sphere differentiated the practice of medicine from those of banks, publishers, or engineers. Thus, there was no need to specifically exclude a physician’s or other health care professional’s practice from the KCPA. Medicine has traditionally been included among the “learned professions.” See Moore, 273 Kan. at 12. The Moore court explicitly and wisely declined to determine whether the “learned professions” should be exempt under the KCPA. 273 Kan. at 12. While such a blanket exclusion might not be warranted, “it would be improper to view the practice of medicine as interchangeable with other commercial endeavors and apply to it concepts that originated in other areas.” Nelson, 222 Mich. App. at 83.1 would therefore conclude that the legislature’s explicit and expansive treatment of the medical and other health care professions in the Kansas statutes makes clear that it did not include the “actual practice of medicine” in the coverage of tire KCPA.

Consequences of the Majority’s Decision

In my opinion, an appellate court reviewing the array of statutes involved in this case appropriately takes into consideration the consequences of the legislature’s enactment. State, ex rel., v. Throckmorton, 169 Kan. 481, 486, 219 P.2d 413 (1950). In this regard, K.S.A. 65-4914 states that Kansas’ public policy of providing acceptable health care for its citizens is best achieved “by requiring a system which combines a reasonable means to monitor the quality of health care with the provision of a reasonable means to compensate patients for the risks related to receiving health care ren*266dered by health care providers licensed by the state of Kansas.” Thus, under the current statutoiy scheme, the legislature seeks to strike a reasonable balance between the public benefits of attracting (and keeping) high quality health care providers to the state and the private benefit of compensating individuals for injuries. The legislature explicitly states:

“Substantial increases in costs of professional liability insurance for health care providers have created a crisis of availability and affordability. This situation poses a serious threat to the continued availability and quality of health care in Kansas. In tire interest of the public healdi and welfare, new measures are required to assure that affordable professional liability insurance will be available to Kansas health care providers, to assure that injured parties receive adequate compensation for their injuries, and to maintain the quality of health care in Kansas.” (Emphasis added.) K.S.A. 60-3405.

This court, in reviewing the legislative history behind this statement, has previously found that tire above policy “essentially adopted” in its 1986 amendments the conclusions of the Special Committee on Medical Malpractice, which found that “absent stabilization of malpractice insurance costs, Kansas physicians will not be willing to continue practicing in this state and that a failure to take legislative action in this area will affect health care delivery and availability in Kansas.” Bair v. Peck, 248 Kan. 824, 832, 811 P.2d 1176 (1991).

The majority’s opinion in this case, which finds a duplicate cause of action for medical negligence under the KCPA, in my opinion adopts an unreasonable conclusion that undermines these policy goals. There is no guarantee that actions brought under the KCPA will be covered by health care professionals’ insurance policies for medical practice. As indicated above, there can be no doubt that the majority’s conclusion will increase lawsuits brought by patients against their doctors, particularly since the KCPA requires no intent to defraud in order for courts to find liability. See K.S.A. 50-626.

The ultimate result of this increase in litigation will be an increased burden on the general public in terms of the cost of medical treatment and the deterrence of medical professionals from practicing in the state. See Comment, Caps, “Crisis,” and Consti*267tutionality-Evaluating the 1986 Kansas Medical Malpractice Legislation, 35 U. Kan. L. Rev. at 763, 766-70 (1987). Thus, in my opinion the majority’s decision undermines the specific goals of the legislature, contained in its expressed public policy of this state. Additionally, the majority’s decision controverts the stated goal of the KCPA itself, which has at its heart the protection of consumers. See K.S.A. 50-623. The goal of both the consumer protection statutes and the numerous statutes regulating the practice of medicine and other health care professions is to protect the public — thus, to sacrifice public health and the quality of health care for the establishment of an additional mode of private recovery for patients under the KCPA “misses the point” of these enactments.

In my opinion, the majority’s reading of legislative intent adversely impacts the very thing the legislature intended to accomplish in the KCPA, Chapter 65, and the statutes relating to medical malpractice insurance. See K.S.A. 40-3401 et seq.; K.S.A. 50-623 et seq.; K.S.A. 60-3401 et seq.; K.S.A. 65-2801 et seq. The physician-patient relationship does not fit “comfortably” within the framework of the KCPA. The legislature’s expansive regulation of the medical and health care fields, as well as the requirement of malpractice insurance and continued balancing of the public and private interests involved, demonstrates to me that the legislature never intended for health care professionals to be covered by the KCPA.

In this case, Williamson has presented no evidence that the statements in question by Dr. Amrani to Williamson were made in the course of the “entrepreneurial” or “business activities” of Dr. Amrani’s practice. The trial court below found that these statements “involve[] the professional aspect of a physician’s practice as opposed to the proprietary, business aspects of the physician’s practice.” Because I would find that such actions are not covered by the KCPA for the reasons outlined above, I would affirm the decision of the trial court.

McFarland, C.J., joins in the foregoing dissenting opinion.