Ambach v. French

• Decision Date: 24 September 2009
• Docket Number: No. 81107-5.,81107-5.
• Parties: Teresa AMBACH and Michael Ambach, wife and husband, individually and the marital community composed thereof, Respondents, v. H. Graeme FRENCH, M.D. and Jane Doe French, individually and the marital community composed thereof; Kelly Landle, Pac and John Doe Landle, individually and the marital community composed thereof; Three Forks Orthopaedics, P.C., a Washington professional corporation; Whitman County Public Hospital District No. 3, d/b/a Whitman Hospital and Medical Center; John and Jane Does 1-10; Jonathan P. Keeve, M.D.; Northwest Orthopaedic Specialists, P.S., a Washington professional service corporation; and Karlene A. Arguinchona, M.D., Petitioners.
• Court: Washington Supreme Court

216 P.3d 405

167 Wn.2d 167

Teresa AMBACH and Michael Ambach, wife and husband, individually and the marital community composed thereof, Respondents, v. H. Graeme FRENCH, M.D. and Jane Doe French, individually and the marital community composed thereof; Kelly Landle, Pac and John Doe Landle, individually and the marital community composed thereof; Three Forks Orthopaedics, P.C., a Washington professional corporation; Whitman County Public Hospital District No. 3, d/b/a Whitman Hospital and Medical Center; John and Jane Does 1-10; Jonathan P. Keeve, M.D.; Northwest Orthopaedic Specialists, P.S., a Washington professional service corporation; and Karlene A. Arguinchona, M.D., Petitioners.

No. 81107-5.

Supreme Court of Washington, En Banc.

Argued March 24, 2009.

Decided September 24, 2009.

Kristin Margret Houser, James D. Hailey, Lindsay L. Halm, Schroeter Goldmark Bender, Seattle, WA, Patrick Kie Fannin, Spokane, WA, for Respondents.

Stephen Craig Haskell, Stephen Haskell Law Offices PLLC, D. Roger Reed, Reed & Giesa, Spokane, WA, for Petitioners.

Stewart Andrew Estes, Keating Bucklin & McCormack, Erin Healy Hammond, Fain Sheldon Anderson & VanDerhoef PLLC, Carol Sue Janes, Bennett Bigelow & Leedom PS, Seattle, Amicus Curiae on behalf of Washington Defense Trial Lawyers.

George M. Ahrend, Dano Gilbert & Ahrend PLLC, Moses Lake, Bryan Patrick Harnetiaux, Spokane, Amicus Curiae on behalf of Washington State Association for Justice Foundation.

Mary H. Spillane, Daniel W. Ferm, Williams Kastner & Gibbs PLLC, Seattle, Amicus Curiae on behalf of Washington State Medical Association, American Medical Association, and Physicians Insurance a Mutual Company.

MADSEN, J.

¶ 1 In this case we are asked to decide whether the increased cost a consumer pays for surgery instead of alternative medical treatment constitutes an injury to "business or property" as it is used in Washington's Consumer Protection Act (CPA), chapter 19.86 RCW. Where the increased costs are incurred as a result of a personal injury, we hold that the monetary injury cannot be separated from the personal injury and a claim under the CPA cannot be maintained. We reverse the Court of Appeals.

FACTS

¶ 2 On November 16, 2001, Teresa Ambach visited Dr. Graeme French at Whitman Hospital and Medical Center complaining of neck pain and left arm numbness. On February 12, 2002, French performed surgery on Ambach's left shoulder. The surgery consisted of performing an anterior and posterior capsular shift and insertion of five suture rods and anchors with fiber wire structure. Following her surgery, Ambach complained to French of excessive pain in her shoulder. She presented herself twice in March 2002 to the emergency room at Sacred Heart Medical Center with excessive pain. Also following her surgery, Ambach sought a second opinion with a different orthopedic surgeon. After x-rays and an MRI (magnetic resonance imaging) by the second orthopedic surgeon and an appointment with the University of Washington Medical Center, Ambach was diagnosed with osteomyelitis¹ from a staph infection in her left shoulder. On May 15, 2002, Ambach's shoulder was irrigated and debrided; all of the anchors placed by Dr. French during the February 2002 surgery were removed. On September 10, 2002, Ambach had an open fusion performed on her left shoulder. According to Ambach, "[a]s a result of the surgery and subsequent fusion, the Ambachs have suffered various financial losses." Br. of Appellant at 5.

¶ 3 On January 28, 2004, Ambach filed a complaint against French alleging professional negligence and violation of the CPA.² French responded with a motion for summary judgment in which he argued that Ambach failed to implicate the "entrepreneurial aspects of [French's] practice of medicine" and that she failed to show harm to a specific "business or property" interest. Clerk's Papers (CP) at 59. The motion went before the trial judge only on the issue of whether Ambach's injury was to her "business or property."

¶ 4 The trial court granted French's motion for summary judgment on the CPA claim and held:

[I]f the claim for damages as requested by the plaintiff could be upheld in this case, there would be almost no case involving medical negligence issues, malpractice, and so forth, in which the claims could not be brought.

It seems to me that the types of economic damages which are under discussion here ... are exactly the traditional types of damages that flow from negligence from the ordinary types of tort claims which have always been present.

CP at 288.

¶ 5 On appeal, the Court of Appeals reversed the grant of summary judgment and held that "allegations of economic loss due to the increased cost of surgery over the cost of more conservative treatment are sufficient to satisfy the damages requirement [of the CPA]." Ambach v. French, 141 Wash.App. 782, 790, 173 P.3d 941 (2007). French petitioned this court for review. We granted review and now reverse the Court of Appeals.

ANALYSIS

¶ 6 RCW 19.86.090 allows anyone who has been "injured in his or her business or property by a violation" of the CPA to bring a civil action in which she may recover actual damages, trial costs, and attorney fees. The trial court may, "in its discretion," award treble damages. Id. To state a prima facie claim under the CPA, a plaintiff must "establish five distinct elements: (1) unfair or deceptive act or practice; (2) occurring in trade or commerce; (3) public interest impact; (4) injury to plaintiff in his or her business or property; (5) causation." Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wash.2d 778, 780, 719 P.2d 531 (1986).

¶ 7 While "[t]he injury involved need not be great," or even quantifiable, it must be an injury to "`business or property.'" Id. at 792, 719 P.2d 531; Mason v. Mortgage Am., Inc., 114 Wash.2d 842, 854, 792 P.2d 142 (1990) (citing Hangman Ridge and noting that statutory provision of injunctive relief "bolsters the conclusion that injury without specific monetary damages will suffice"). "Business or property" is not defined in chapter 19.86 RCW. Black's Law Dictionary defines "business" as "[a] commercial enterprise carried on for profit; a particular occupation or employment habitually engaged in for livelihood or gain." Black's Law Dictionary 226 (9th ed.2009). "[P]roperty" is defined as "[t]he right to possess, use, and enjoy a determinate thing ...; the right of ownership." Id. at 1335. The legal definition of "property" appears to have narrowed over time and does not include rights to one's person or body:

"In its widest sense, property includes all a person's legal rights, of whatever description. A man's property is all that is his in law. This usage, however, is obsolete at the present day, though it is common enough in the older books.... In a second and narrower sense, property includes not all a person's rights, but only his proprietary as opposed to his personal rights. The former constitute his estate or property, while the latter constitute his status or personal condition. In this sense a man's land, chattels, shares, and the debts due to him are his property; but not his life or liberty."

Id. at 1336 (alterations in original) (quoting John Salmond, Jurisprudence 423-24 (Glanville L. Williams ed., 10th ed.1947)).

¶ 8 The legislature's use of the phrase "business or property" in the CPA is restrictive of other categories of injury and is "`used in the ordinary sense [to] denote[] a commercial venture or enterprise.'" Stevens v. Hyde Athletic Indus., Inc., 54 Wash.App. 366, 370, 773 P.2d 871 (1989) (quoting Hamman v. United States, 267 F.Supp. 420, 432 (D.Mont.1967)); Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299, 318, 858 P.2d 1054 (1993) (citing Reiter v. Sonotone Corp., 442 U.S. 330, 338-39, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979) (interpreting identical phrase in § 4 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 15 (1914), to hold that "`business or property'" necessarily excludes "some category of injury" (emphasis omitted), for example, personal injuries, but nonetheless retains its restrictive significance when construed to encompass injury to a consumer "whose money has been diminished by reason of an antitrust violation")).

¶ 9 Washington courts have found injury to "business or property" where the defendant's act in violation of the CPA caused the plaintiff to suffer loss of professional or business reputation, loss of goodwill, or inability to tend to a business establishment. Nordstrom, Inc. v. Tampourlos, 107 Wash.2d 735, 739-41, 733 P.2d 208 (1987) (damage to business reputation caused by trade name infringement "easily met" injury to business or property requirement); Fisons Corp., 122 Wash.2d at 318, 858 P.2d 1054 (physician suffered damage to reputation when he prescribed deceptively marketed medication that injured a patient); Sign-O-Lite Signs, Inc. v. DeLaurenti Florists, Inc., 64 Wash.App. 553, 563-64, 825 P.2d 714 (1992) (time spent away from business to address a deceptively formed contract made with sign company was injury to business).

¶ 10 Personal injury damages, however, "are not compensable [damages] under the CPA" and do not constitute injury to business or property. Fisons, 122 Wash.2d at 317-18, 858 P.2d 1054 (rejecting CPA damages for "`pain and suffering'"); Stevens, 54 Wash.App. at 369-70, 773 P.2d 871 (rejecting medical expenses); Hiner v. Bridgestone/Firestone, Inc., 91 Wash.App. 722, 730, 959 P.2d 1158 (1998) (damages "including reimbursement for lost wages and earning capacity, medical expenses and damages to [a vehicle] arise from personal injuries [are] commonly awarded in personal injury actions" and are "not recoverable under the CPA"), rev'd on other grounds, 138 Wash.2d 248, 263-64, 978 P.2d 505 (1999) (reversing Court of Appeals' disposition of plaintiff's product liability claim and declining "to consider [CPA assignment of error] because [plaintiff]...