Nelson v. Ho

• Decision Date: 25 February 1997
• Docket Number: Docket No. 184803
• Citation: 564 N.W.2d 482,222 Mich.App. 74
• Parties: Maria E. NELSON, also known as Maria E. Haas, Plaintiff-Appellant, v. Laurence HO, M.D., Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 482

564 N.W.2d 482

222 Mich.App. 74

Maria E. NELSON, also known as Maria E. Haas, Plaintiff-Appellant, v. Laurence HO, M.D., Defendant-Appellee.

Docket No. 184803.

Court of Appeals of Michigan.

Submitted Nov. 20, 1996, at Lansing.

Decided Feb. 25, 1997, at 9:40 a.m.

Released for Publication May 15, 1997.

Gary M. Victor, Ypsilanti, for plaintiff-appellant.

Siemion, Huckabay, Bodary, Padilla, Morganti & Bowerman by Raymond W. Morganti and Donna M. Severyn, Southfield, for defendant-appellee.

Before McDONALD, P.J., and MURPHY and J.D. PAYANT ^*, JJ.

MURPHY, Judge.

Plaintiff appeals as of right the trial court's grant of summary disposition for defendant. We affirm.

In April 1989, plaintiff visited defendant's office to seek treatment for a sinus problem. In June 1989, defendant performed nasal surgery on plaintiff. In the months following the surgery, plaintiff's nose became infected, and plaintiff began to feel what she believed to be a suture breaking through the skin at the tip of her nose. Plaintiff went to see defendant at least four times between October 1989 and January 1991 regarding infections and her belief that a suture was breaking through the skin of her nose. Plaintiff alleges that during these visits, although defendant recorded in his notes that plaintiff did have a suture breaking through the skin of her nose, defendant consistently and intentionally told plaintiff that it would be impossible for a suture to be breaking through the skin because he had used dissolvable sutures. ¹ Yet plaintiff continued to experience problems and hold onto her belief. In September 1993, plaintiff visited Dr. Frank Ritter. Ritter informed plaintiff that there was indeed a suture breaking through the skin of her nose and referred plaintiff to a plastic surgeon, who removed stitches from plaintiff's nose in October 1993. Plaintiff filed the instant action, alleging that defendant's conduct violated the Michigan Consumer Protection Act (MCPA), M.C.L. § 445.901 et seq.; M.S.A. § 19.418(1) et seq., and amounted to an intentional infliction of emotional distress. Defendant moved for partial summary disposition, arguing that the MCPA does not apply to physicians. The trial court granted defendant's motion, dismissed the MCPA count, and plaintiff appealed. In an unpublished opinion of the Court of Appeals, entered December 14, 1994 (Docket No. 179429), this Court, Doctoroff, C.J., and Cavanagh and Fitzgerald, JJ., dismissed that appeal for lack of jurisdiction because the trial court's order was not final, but merely disposed of one theory of recovery. Subsequently, defendant filed another motion for summary disposition in the trial court, arguing that plaintiff's claim for intentional infliction of emotional distress was barred by the three-year period of limitation set forth in M.C.L. § 600.5805(8); M.S.A. § 27A.5805(8). The trial court agreed and granted summary disposition. The plaintiff appealed with regard to both claims.

On appeal, we review the trial court's grant of summary disposition de novo. Turner v. Mercy Hosps. & Health Services of Detroit, 210 Mich.App. 345, 348, 533 N.W.2d 365 (1995).

I

The first issue in this case is whether a suit brought under the MCPA may be maintained against a physician. This issue is one of first impression in Michigan.

The MCPA prohibits, and defines by general example, "[u]nfair, unconscionable, or deceptive methods, acts or practices in the conduct of trade or commerce." M.C.L. § 445.903(1); M.S.A. § 19.418(3)(1). The MCPA contains no language expressly including or excluding physicians from its purview, but broadly defines "trade or commerce" as follows:

"Trade or commerce" means 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. [M.C.L. § 445.902(d); M.S.A. § 19.418(2)(d).]

Plaintiff argues that because defendant performed a service primarily for personal purposes, his conduct falls within the definition of "trade or commerce." The trial court ruled, in part, that physicians are not engaged in "trade or commerce" and granted defendant's motion for summary disposition. ²

The trial court's ruling was based in part on the theory that there is a distinction between the practice of a trade and the practice of a "learned profession." It was stated in dictum in The Schooner Nymph, 18 F.Cas. 506, 507 (C.C.D.Me., 1834) (No. 10,338), that wherever any occupation, employment, or business is carried on for the purpose of profit, gain, or a livelihood, not in the liberal arts or in the learned professions, it is constantly called a trade. See anno: "Learned Profession" exemption in federal antitrust laws (15 USCS §§ 1 et seq. ), 39 A.L.R.Fed. 774, 777. It is this definition that led to early United States Supreme Court cases implying, also by way of dictum, that the "learned professions" were not engaged in "trade or commerce" under federal antitrust laws. Id. See also Goldfarb v. Virginia State Bar, 421 U.S. 773, 786, n. 15, 95 S.Ct. 2004, 2012-13, n. 15, 44 L.Ed.2d 572 (1975), citing Federal Baseball Club of Baltimore, Inc. v. Nat'l League of Professional Baseball Clubs, 259 U.S. 200, 42 S.Ct. 465, 66 L.Ed. 898 (1922); Federal Trade Comm. v. Raladam Co., 283 U.S. 643, 51 S.Ct. 587, 75 L.Ed. 1324 (1931); Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 52 S.Ct. 607, 76 L.Ed. 1204 (1932); United States v. Nat'l Ass'n of Real Estate Bds., 339 U.S. 485, 70 S.Ct. 711, 94 L.Ed. 1007 (1950). The distinction was said to be that, in contrast to practicing a trade or running a business, "competition is inconsistent with the practice of a profession because enhancing profit is not the goal of professional activities; the goal is to provide services necessary to the community." Goldfarb, supra at 786, 95 S.Ct. at 2013.

This theoretical distinction was specifically addressed in Goldfarb, supra, where the United States Supreme Court considered the issue whether a minimum-fee schedule for lawyers enforced by the Virginia State Bar constituted price-fixing in violation of the Sherman Act, 15 U.S.C. § 1 et seq. The state bar argued that it was exempt from the Sherman Act because the practice of law was a "learned profession," not a "trade or commerce." The Goldfarb Court stated that while "[i]t would be unrealistic to view the practice of professions as interchangeable with other business activities, and automatically to apply to the professions antitrust concepts which originated in other areas," id. at 788, n. 17, 95 S.Ct. at 2013, n. 17, "[i]t is no disparagement of the practice of law as a profession to acknowledge that it has this business aspect." Id. at 788, 95 S.Ct. at 2013. The Court concluded that "anticompetitive activities by lawyers may exert a restraint on commerce." Id. ³

Today, it is clear that in federal cases a person will not be exempt from the Sherman Act solely on the basis of their status as a learned professional. 39 A.L.R.Fed. 779-780; see also Williams v. Kleaveland, 534 F.Supp. 912, 916 (W.D.Mich., 1981) ("there is no blanket exemption to the anti-trust laws for the learned professions"). However, there remains

judicial recognition of the facts that the learned professions are not as "commercial" as other activities, that not all aspects of professional activity are "trade aspects" subject to the Sherman Act, and that the public interest might not be served by subjecting the learned professions to antitrust standards that have been developed in more commercial contexts. [39 A.L.R.Fed. 780, § 2(b) ].

This has led to a line of federal cases in which the courts analyze the activities of the professionals in light of a distinction between "commercial" and "noncommercial" conduct. 39 A.L.R.Fed. 780; see also Rousseau v. Eshleman, 128 N.H. 564, 570, 519 A.2d 243 (1986) (Johnson, J., dissenting). According to this line of cases, a commercial motive is required in order to bring the professional activity within the purview of the Sherman Act. Id. Such federal decisions interpreting federal antitrust laws have served as the basis for state decisions interpreting state consumer acts.

For example, in Short v. Demopolis, 103 Wash.2d 52, 691 P.2d 163 (1984), the Washington Supreme Court considered the issue whether attorneys could be subject to liability under Washington's Consumer Protection Act (WCPA), Wash.Rev.Code Ann. 19.86.010 et seq. Noting that there was a split in state decisions regarding the issue whether those in the learned professions enjoyed immunity from consumer protection acts, Short, supra at 59-60, 691 P.2d 163, citing Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 461 A.2d 938 (1983); Matthews v. Berryman, 196 Mont. 49, 637 P.2d 822 (1981); Barnard v. Mecom, 650 S.W.2d 123 (Tex.App., 1983); Frahm v. Urkovich, 113 Ill.App.3d 580, 69 Ill.Dec. 572, 447 N.E.2d 1007 (1983), superseded by statute as stated in Rubin v. Marshall Field & Co., 232 Ill.App.3d 522, 173 Ill.Dec. 714, 597 N.E.2d 688 (1992); Lucas v. Nesbitt, 653 S.W.2d 883 (Tex.App., 1983); Reed v. Allison & Perrone, 376 So.2d 1067 (La.App., 1979); DeBakey v. Staggs, 605 S.W.2d 631 (Tex.App., 1980), ⁴ the court relied on federal decisions, particularly Goldfarb, supra, and held that "certain entrepreneurial aspects of the practice of law may fall within the 'trade or commerce' definition of the [WCPA]." Short, supra at 60, 691 P.2d 163. Short was the basis for the decision in Quimby v. Fine, 45 Wash.App. 175, 724 P.2d 403 (1986), where the Washington Court of Appeals considered the issue whether actions against a physician may be maintained under the WCPA. The court held that there was "no basis to distinguish the legal practice from the medical practice" ...