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DORN v. MCTIGUE

September 28, 2000

DORIS HOLLAND DORN, PLAINTIFF,
V.
JOHN W. MCTIGUE, DEFENDANT.



The opinion of the court was delivered by: Urbina, District Judge.

MEMORANDUM OPINION

Denying the Plaintiff's Motion for Order Determining Burden of Proof as to Consumer Protection Claim

I. INTRODUCTION

This matter comes before the court on the plaintiff's motion for an order determining the proper burden of proof on her Consumer Protection Claim ("the plaintiff's motion"). The plaintiff, Doris Holland Dorn ("the plaintiff" or "Ms. Dorn"), seeks an order from this court ruling that an unintentional violation of the District of Columbia Consumer Protection Procedures Act ("CPPA"), D.C.Code §§ 28-3901-3904, may be proved by a preponderance of the evidence. Specifically, the plaintiff seeks an order deciding this burden of proof in the event that she can only prove an "unintentional," rather than an "intentional," misrepresentation under § 28-3904(e). See Pl's Opp'n to Def's Mot. to Dismiss ("Pl's Opp'n") at 4. In addition, the plaintiff asks for an order entitling her to attorney's fees, expenses, and compensatory damages if she succeeds in proving an unintentional violation of the CPPA.

Applying the two-prong test the court established in its Memorandum Opinion issued on July 26, 1999 ("Mem.Op."), the court determines that an unintentional misrepresentation claim, under these facts, would fall outside the scope of the CPPA as it applies to the practice of medicine. Thus, the court need not decide which burden of proof applies to an unintentional misrepresentation claim under the CPPA. Accordingly, the court hereby denies the plaintiff's motion.

II. BACKGROUND

In October 1995, Ms. Dorn went to the office of Dr. John W. McTigue ("the defendant" or "Dr. McTigue") for her annual eye examination. During this visit, Ms. Dorn complained of decreased vision. Dr. McTigue diagnosed Ms. Dorn with cataracts and, on November 16, 1995, performed cataract surgery on her. During the course of the procedure, however, a portion of the plaintiff's lens fell into the posterior portion of her eye. After Dr. McTigue tried unsuccessfully to remove the lens, he sent the plaintiff to the Washington Hospital Center for further surgery. Even after the corrective surgery was performed, the plaintiff suffered irreparable damage to her retina, resulting in total loss of sight in her left eye. See Compl. at 3-4.

In counts I and II of the amended complaint, Ms. Dorn alleges that the defendant's decision to perform surgery constituted medical malpractice because he failed to meet the applicable standard of care and failed to obtain informed consent from the plaintiff In Count III, the claim now at issue, Ms. Dorn alleges that the defendant's negligence and failure to obtain informed consent constituted an "unlawful trade practice" as defined by the CPPA. See Am. Compl. at 7.*fn1

In the July 26, 1999 Memorandum Opinion denying the defendant's motion to dismiss, the court addressed the viability of the plaintiff's CPPA claim. The court held that the CPPA applies to the physician-patient context, but only when the plaintiff's claim relates to the entrepreneurial aspects of the physician's practice. See Mem. Op. at 5. In extending the reach of the CPPA to medical practitioners, the court adopted the clear-and-convincing burden of proof for intentional misrepresentations that was established in Osbourne v. Capital City Mortgage Corp., 727 A.2d 322, 325 (D.C. 1999). Id.

Now the plaintiff asks the court to determine the burden of proof that would apply if the plaintiff could prove only an unintentional or inadvertent violation of the CPPA. Consistent with its 1999 Memorandum Opinion, the court holds that under these facts, an unintentional-misrepresentation claim would fall outside the scope of the CPPA as it applies to the medical field. Accordingly, the court need not reach the question of the burden of proof for unintentional violations.

III. ANALYSIS

A. Unintentional Violations of the CPPA

Before the court may determine which burden of proof governs claims of unintentional violations of the CPPA, it must first ascertain whether such a claim can proceed in this case. Otherwise, the court would be issuing an advisory opinion.*fn2 When the court denied the defendant's motion to dismiss, it had considered a claim for intentional misrepresentation in violation of the CPPA. See Mem. Op. at 5. The parties had not asked the court to address whether a claim for unintentional misrepresentation under the CPPA could also proceed.

The plaintiff now requests an order determining the burden of proof she would have to meet to prove an unintentional violation of the CPPA. In Osbourne v. Capital City Mortgage Corp., 667 A.2d 1321, 1330 (D.C. 1995), the court decided the burden of proof for intentional violations of D.C.Code ยง 28-3904(e), but declined to express an opinion on whether the CPPA would cover allegations of unintentional misrepresentation. Thus, the case at bar raises an issue of ...


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