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            DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 18-CV-628

                        RACHEL M. FRANKENY, APPELLANT,

                                         v.

             DISTRICT HOSPITAL PARTNERS, LP, ET AL., APPELLEES.

                         Appeal from the Superior Court
                           of the District of Columbia
                                 (CAB-3349-16)

                        (Hon. Florence Y. Pan, Trial Judge)

(Argued June 19, 2019                                 Decided February 27, 2020)

      Jacob M. Lebowitz for appellant.

      Christopher M. Corchiarino, for appellees. Thomas V. Monahan, Jr. and
Jhanelle A. Graham Caldwell were on the brief.

     Before BLACKBURNE-RIGSBY, Chief Judge, THOMPSON, Associate Judge,
and RUIZ, Senior Judge.

      BLACKBURNE-RIGSBY, Chief Judge:          In this appeal, appellant Rachel

Frankeny claims that appellees District Hospital Partners, LP d/b/a The George

Washington University Hospital and Universal Health Services, Inc. (together
                                           2

“GWUH”) 1 violated the District of Columbia Consumer Protection Procedures

Act, see D.C. Code §§ 28-3901, to -3913 (2013 Repl.) (the “CPPA” or “Act”),

when GWUH failed to inform her that her bilateral tonsillectomy was to be

performed in part by a first-year medical resident, rather than the seasoned board-

certified surgeon whom she selected. She claims this failure constituted a material

misrepresentation of the services provided in violation of the CPPA.2 The trial

court granted summary judgment in favor of GWUH, concluding that Ms.

Frankeny was required – but failed – to present evidence of an “entrepreneurial

motive,” i.e., that the hospital’s misrepresentation was intentional and motivated

by business interests or financial gain.



      We conclude that the trial court erred in requiring Ms. Frankeny to provide

evidence of an “entrepreneurial motive” to sustain her CPPA claims against

GWUH. Under D.C. Code § 28-3904 (e) and (f), a plaintiff-consumer “need not


      1
         Appellee District Hospital Partners, LP d/b/a The George Washington
University Hospital is a nongovernmental joint partnership between appellee
Universal Health Services, Inc. and The George Washington University. Ms.
Frankeny also sued Medical Faculty Associates and Thomas Troost, MD, but
settled with them during the pendency of this appeal; both were dismissed.
      2
         Ms. Frankeny alleges CPPA violations under D.C. Code § 28-3904(a) &
(d)-(f). Because these claims are similar and pertain to the same factual
allegations, we will refer to all of her CPPA claims together as
“misrepresentation,” unless stated otherwise.
                                          3

allege or prove intentional misrepresentation or failure to disclose to prevail on a

claimed violation of” the CPPA. Fort Lincoln Civic Ass’n, Inc. v. Fort Lincoln

New Town Corp., 944 A.2d 1055, 1073 (D.C. 2008) (“Fort Lincoln”). We extend

that reasoning and hold that a plaintiff consumer need not allege or prove

intentional misrepresentation to claims made under D.C. Code § 28-3904(a) and

(d).   Moreover, we reject any requirement that a CPPA claim allege an

“entrepreneurial nexus.” Accordingly, we reverse the grant of summary judgment

and remand this case for trial.



                                  I. Factual Background



       The record viewed in the light most favorable to Ms. Frankeny, as the non-

moving party, is as follows. In 2013, Ms. Frankeny suffered from sleep apnea and

sought the care of Dr. Thomas Troost, a board certified otolaryngologist (ear, nose,

and throat surgeon) who practiced at The George Washington University Hospital.

At Dr. Troost’s recommendation, Ms. Frankeny agreed to a bilateral tonsillectomy

to treat her sleep apnea. Ms. Frankeny signed two Patient Authorization Forms,

one on May 7, 2013, during a preoperative assessment, and another on May 9,

2013, the day of the surgery. In relevant part, both Patient Authorization Forms

stated that Ms. Frankeny understood that, “The George Washington University
                                         4

Hospital is a teaching hospital,” and that her “health care team will be made up of

hospital personnel (to include nurses, technicians, and ancillary staff) under the

direction of my attending physician and his/her assistants and designees (to include

interns, residents, fellows and medical students).” Ms. Frankeny also signed a

Patient’s Request for Procedure, Operation, and Treatment form on May 9, 2013,

which likewise stated that, “Knowing that the George Washington University

Hospital is a teaching institution, I understand that along with my doctor and

his/her assistants and designees, other Hospital personnel such as residents,

trainees,   nurses,     and     technicians    will    be     involved     in    my

procedure/operation/treatment and care.”        This Form expressly stated, “I

understand and agree to the presence of appropriate observers for the advancement

of medical education and care.” Ms. Frankeny did not understand the forms as

requesting her approval for someone other than Dr. Troost to perform the surgery;

instead, she understood the forms to mean that other medical staff would be

“involved” by, for example, observing the surgery or providing related services.

Ms. Frankeny further did not recall GWUH informing her that someone other than

Dr. Troost would perform the procedure. Ms. Frankeny claims that, had GWUH

told her that a resident could perform part of the procedure, it would have raised “a

huge red flag,” and she probably would not have agreed to go forward. Ultimately,

without Ms. Frankeny’s knowledge, a first-year resident, Dr. Johnny Mai,
                                           5

performed at least part of the surgical procedure under the direction of Dr. Troost.3

Ms. Frankeny claims that she suffered a “significant and permanent loss of her

sense of taste” following the surgery. 4



      On May 5, 2016, Ms. Frankeny filed suit against GWUH for not disclosing

Dr. Mai’s involvement, which she argues was a material misrepresentation of

services rendered in violation of the CPPA. See D.C. Code § 28-3904(a) & (d)-(f).

GWUH subsequently filed a motion for summary judgment, and a hearing on the

motion was held on May 11, 2018. At the hearing, the trial court observed that, in

its view, Ms. Frankeny’s CPPA claims turned on one issue: whether there was

evidence of an “entrepreneurial motive,” i.e., “an intentional misrepresentation that

is motivated by financial or entrepreneurial considerations” on GWUH’s part in

failing to inform Ms. Frankeny of Dr. Mai’s role in her surgery.           Although

recognizing that intent and scienter are not ordinarily required to prove a CPPA

claim, the court noted a difference between “general” CPPA claims and CPPA

claims brought in the medical services context. The trial court’s conclusion was


      3
          It is unclear from the record whether Dr. Mai removed one or both tonsils.
      4
         In connection with Ms. Frankeny’s allegations of injury, she filed suit in
the D.C. Superior Court for medical malpractice, lack of informed consent, and
battery in Case No. 2016-CA-6461-M. The medical malpractice suit was settled
against all parties and dismissed.
                                         6

based on its interpretation of two federal district court decisions: Dorn v. McTigue,

121 F. Supp. 2d 17 (D.D.C. 2000) (“Dorn I”), and Dorn v. McTigue, 157 F. Supp.

2d 37 (D.D.C. 2001) (“Dorn II”). Finding no evidence that GWUH intentionally

failed to disclose Dr. Mai’s involvement to Ms. Frankeny for financial gain or

business interests, the trial court granted summary judgment in favor of GWUH.

This appeal followed.



                                II. Legal Framework



      We review de novo the trial court’s grant of summary judgment. Briscoe v.

District of Columbia, 62 A.3d 1275, 1278 (D.C. 2013). Summary judgment is

appropriate if there are no disputed issues of material fact and the record

conclusively shows that the moving party is entitled to judgment as a matter of

law. Id. Determining which facts are material depends on the elements of the

cause of action, for summary judgment is appropriate “against a party who fails to

make a showing sufficient to establish the existence of an element essential to that

party’s case.” Night & Day Mgmt., LLC v. Butler, 1010 A.3d 1033, 1037 (D.C.

2014) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)) (emphasis

added). In this case, that requires interpreting the relevant provisions of the CPPA,

a task that we undertake de novo. See District of Columbia v. Cato Inst., 829 A.2d
                                         7

237, 239 (D.C. 2003). The record is viewed in the light most favorable to the non-

moving party, who is entitled to “all favorable inferences which may reasonably be

drawn from the evidentiary materials.” Tolu v. Ayodeji, 945 A.2d 598, 601 (D.C.

2008) (citation and internal quotation marks omitted).



      A. The Consumer Protection Procedures Act



      “The District of Columbia Consumer Protection Procedures Act affords a

panoply of strong remedies, including treble damages, punitive damages and

attorneys’ fees, to consumers who are victimized by unlawful trade practices.”

Ford v. Chartone, Inc., 908 A.2d 72, 81 (D.C. 2006) (citation and internal

quotation marks omitted).     The Act is “construed and applied liberally” and

establishes a consumer’s “right to truthful information about consumer goods and

services” that are purchased or received in the District of Columbia. D.C. Code §

28-3901(c); see also D.C. Code § 28-3905(k)(1)(A) (providing private right of

action). To this end, the Act overcomes the “pleadings problem associated with

common law fraud claims” 5 by abridging the elements needed to prove a CPPA

violation. Fort Lincoln, 944 A.2d at 1073 n.20.

      5
         The elements of common law fraud are: (1) a false representation; (2) of a
material fact; (3) made with knowledge of its falsity; (4) with an intent to deceive;
and (5) detrimental reliance. Bennett v. Kiggins, 377 A.2d 57, 59 (D.C. 1977).
                                         8

      A consumer need not prove that she was “misled, deceived, or damaged” by

a merchant’s actions. D.C. Code § 28-3904. Further, a consumer need not always

prove that the merchant made an intentional misrepresentation under the CPPA.

This was not always clear. Prior to our decision in Fort Lincoln, it was an

unanswered question whether only intentional misrepresentation claims were

actionable under the CPPA. Caulfield v. Stark, 893 A.2d 970, 976-77 (D.C. 2006).

In Fort Lincoln, however, we held that, in light of the plain language and the

legislative intent of the CPPA, a consumer need not allege intentional

misrepresentation of a material fact or an intentional failure to disclose a material

fact under D.C. Code § 28-3904(e) and (f). 944 A.2d at 1073; see also Saucier v.

Countrywide Home Loans, 64 A.3d 428, 442 (D.C. 2013). We examined D.C.

Code § 28-3904, which delineates acts that violate the CPPA, and noted that the

Council of the District of Columbia (the “D.C. Council”) specified that certain acts

had an intent requirement, while other acts made no mention of intent. Fort

Lincoln, 944 A.2d at 1073 (identifying D.C. Code § 28-3904(r)(1)-(5) & (t) as

requiring acts “be done with deceit or with knowledge”). 6           For claims of


      6
         For example, D.C. Code § 28-3904(r)(1) and (5) state that it is a violation
of the CPPA if a merchant “make[s] or enforce[s] unconscionable terms or
provisions of sales or leases” with “knowledge by the person at the time credit
sales are consummated that there was no reasonable probability of payment in full
of the obligation by the consumer” or if the merchant “has knowingly taken
advantage of the inability of the consumer reasonably to protect his interests by
                                                                   (continued . . .)
                                          9

misrepresentation, the statute merely provides that it is a violation of the CPPA if

the merchant “misrepresented” or “failed to state” a material fact.                 Id.

Consequently, we held that the fact that the D.C. Council did not expressly state

that a merchant must “knowingly” or “intentionally” misrepresent or fail to state a

material fact meant that intentionality is not required under D.C. Code § 28-

3904(e) and (f). Id. Instead, a consumer only needs to establish that the merchant

made a material misrepresentation under § 28-3904(e), or failed to make a material

disclosure under § 28-3904(f). Saucier, 64 A.3d at 442.



       To be sure, we have not yet had occasion to decide whether intentionality is

required to claim a violation of the CPPA under § 28-3904(a) and (d).7 However,


(. . . continued)

reasons” of incompetency. (emphasis added). These provisions of the CPPA,
therefore, specifically indicate that a merchant’s knowledge of the unfair terms is a
required element of the violation.
       7
         Specifically, it is a violation of the CPPA “for any person to engage in an
unfair or deceptive trade practice, whether or not any consumer is in fact misled,
deceived, or damaged thereby, including to:”

              (a) represent that goods or services have a source,
              sponsorship,     approval,    certification, accessories,
              characteristics, ingredients, uses, benefits, or quantities
              that they do not have;

              ...
                                                                      (continued . . .)
                                         10

we now hold that intent or knowledge is not required under these provisions, as we

did with claims of misrepresentation under § 28-3904(e) and a failure to state a

material fact under § 28-3904(f), because the D.C. Council did not explicitly state

that intent or knowledge is necessary to sustain a CPPA claim under § 28-3904(a)

and (d). Accordingly, a consumer need not prove that a merchant intentionally or

knowingly represented that the goods or services have a characteristic or were of a

standard or quality that they did not, in fact, have. See, e.g., Fort Lincoln, 944

A.2d at 1073.



       For purposes of § 28-3904(e) or (f), a misrepresentation or omission is

“material” if a reasonable person “would attach importance to its existence or

nonexistence in determining his or her choice of action in the transaction” or “the

maker of the representation knows or has reason to know” that the recipient likely

“regard[s] the matter as important in determining his or her choice of action.”

Saucier, 64 A.3d at 442 (quoting Restatement (Second) Torts § 538(2) (Am. Law


(. . . continued)


              (d) represent that goods or services are of particular
              standard, quality, grade, style, or model, if in fact they
              are of another.

D.C. Code § 28-3904(a) & (d).
                                         11

Inst. 1977)). Ordinarily materiality is a question for the factfinder. Id. The burden

of proof for CPPA claims is clear and convincing evidence. Pearson v. Chung,

961 A.2d 1067, 1073 (D.C. 2008).



      B. CPPA Claims Against Medical Service Providers



      Historically, “learned professions” were not considered a “trade” subject to

consumer protection laws. See Quimby v. Fine, 724 P.2d 403, 405 (Wash. Ct.

App. 1986). 8    When enacted, the CPPA specifically prohibited the District’s

Department of Consumer and Regulatory Affairs (DCRA) from applying the

CPPA to the “professional services of clergymen, lawyers, practitioners of the

healing arts and Christian Science practitioners engaging in their respective

professional endeavors,” D.C. Code § 28-3903(c)(2)(C) (1981), highlighting that

“religion, law, and medicine” were exempt under the statute. See D.C. Council,

Report on Bill 1-253 at 17 (Mar. 24, 1976).



      Any limitation of the CPPA with respect to the practice of medicine,


      8
          In fact, the Maryland Consumer Protection Act expressly exempts
professional services, such as services by lawyers or medical or dental
practitioners, from suit. See Md. Code Ann., Com. Law § 13-104 (2001); see also
Hogan v. Md. State Dental Ass’n, 843 A.2d 902, 906 (Md. Ct. Spec. App. 2004).
                                         12

however, ended in 1991 when the D.C. Council amended the statute and deleted

“practitioners of the healing arts” from § 28-3903(c)(2)(C), thereby extending the

CPPA’s protections to the field of medicine. See District of Columbia Consumer

Protection Procedures Amendment Act of 1989, D.C. Law 8-234, § 2(d), 38 DCR

296 (Mar. 8, 1991). While the legislative history is silent as to the D.C. Council’s

intent behind this amendment, a statement from the Director of the DCRA

highlighted that the agency had received, and been forced to reject, complaints

against doctors. Statement of Donald G. Murray, Director, DCRA, on Bill 8-271

and Bill 8-111 Amendments to the Consumer Protection Procedures Act Before the

Committee on Consumer and Regulatory Affairs, at pp. 6-7 (May 25, 1990).

Although Mr. Murray’s statement acknowledged that the lodged complaints

“usually involve[d] fees,” he stressed that amending the CPPA to include doctors

would allow DCRA “to handle fee cases that involve misrepresentations, the

practitioner’s failure to state a material fact, and other activities described as

unlawful trade practices.” Id. at 6-7. By enacting the statutory amendment and

deleting “practitioners of the healing arts,” the D.C. Council ended the exclusion of

the practice of medicine from the CPPA’s coverage.           As this court held in

Caulfield, the practice of medicine is considered a “trade practice” under the

CPPA. 893 A.2d at 976.9

      9
          As we have construed the Act in light of subsequent amendments, the
                                                                (continued . . .)
                                         13

       We acknowledge that some courts have limited the reach of consumer

protection laws to the practice of medicine, expressing concern that lawsuits

brought under consumer protection laws may blur the line between consumer

protection and medical malpractice claims or render the “well-developed body of

law concerning medical malpractice . . . obsolete.” Nelson v. Ho, 564 N.W.2d 482,

486 (Mich. Ct. App. 1997).          Accordingly, some courts have attempted to

distinguish between traditional medical malpractice claims, which pertain to the

“actual performance of medical services or the actual practice of medicine,” from

consumer     protection   claims,   which     pertain   to   “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.” Id.

Only the latter fall within the definition of “trade or commerce” and are thereby

encompassed within consumer protection laws. Id. The federal district court in

Dorn I and II sought to adopt this distinction, concluding that a consumer claiming

a violation of the CPPA against a medical service provider must present evidence

of an “entrepreneurial nexus” between the alleged misrepresentation and the

(. . . continued)

CPPA does not extend a private cause of action to the acts of those professionals
expressly excluded from the statute. See Gomez v. Ind. Mgmt. of Del., Inc., 967
A.2d 1276, 1288 (D.C. 2009) (observing that the CPPA did not intend to extend a
private cause of action to acts of clergymen, lawyers, and Christian Science
practitioners, among others).
                                         14

“economic considerations related to the medical profession,” which “does not

cover the skill or performance of a medical practitioner.” Dorn I, 121 F. Supp. 2d

at 19-20; see also Dorn II, 157 F. Supp. 2d at 48. Contrary to GWUH’s assertion,

and despite having the opportunity to do so, we have not adopted the holdings in

Dorn I and II and the “entrepreneurial nexus” requirement for CPPA claims related

to the practice of medicine. See, e.g., Caulfield, 893 A.2d at 979 (“[W]e need not

adopt a formulation, such as Dorn II’s entrepreneurial nexus requirement – or any

other – at this time.”). 10    We now take this opportunity to reject such an

“entrepreneurial nexus” requirement.



      There is no statutory basis for adopting an “entrepreneurial nexus” for CPPA

claims related to the practice of medicine, as the statute does not create any

limitation in defining medical services as a “trade practice.” Rather, the D.C.

Council amended the CPPA to fully include medical professionals within the

statute’s coverage. Appellees claim that CPPA claims should be applied “more

restrictively” in the context of medical services to “ensure that medical malpractice

claims are not improperly brought . . . as consumer protection claims.” However,

      10
          Moreover, Dorn I and II, which the trial court here read as calling for an
“entrepreneurial motive” test, are federal decisions that are not binding on this
court. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971). Although we have
considered these cases, we do not find them persuasive in light of the statute’s text
and legislative history.
                                        15

any concern that the line between CPPA claims and traditional medical malpractice

claims will be blurred appears to be overstated. While a rare medical malpractice

case may also meet the elements of a CPPA claim, the two have different elements,

require different types of evidence, and permit different types of damages.11 The

elements of a CPPA claim and medical malpractice claim are very different:

unlike those pursuing a medical malpractice claim, claimants under the CPPA need

not prove a doctor/hospital-patient relationship giving rise to a duty of care, the

strictures of an applicable standard of care, violation of that standard of care,

causation, or injury. Morrison v. MacNamara, 407 A.2d 555, 560 (D.C. 1979).

Moreover, the type of evidence that must be presented is also different, as a

medical malpractice claim will usually require expert evidence to establish the

standard of care, see Snyder v. George Washington Univ., 890 A.2d 237, 244 (D.C.

2006) (“Expert testimony is typically required to establish each of the three

elements [in a medical malpractice case] except where proof is so obvious as to lie

within the ken of the average lay juror.” (internal citations and quotations

omitted)), which is not required (though may be relevant) to a CPPA claim.



      We expressly hold that there is not a different burden of proof for “general”

      11
          It remains unclear whether the CPPA allows for damages for “personal
injury of a tortious nature,” Gomez, 967 A.2d at 977 n.9, and we decline to clarify
that issue here.
                                         16

CPPA claims and those against medical service providers, and a consumer is not

required to proffer evidence of an “entrepreneurial motive” or an “entrepreneurial

nexus” for the latter. Moreover, our cases have rejected the need for a consumer to

prove a showing of “motive” or intent in connection with CPPA misrepresentation

claims under D.C. Code § 28-3904(a) & (d)-(f), and we now reach the same

conclusion as to CPPA claims against medical service providers. At no point in

Fort Lincoln or in subsequent cases did we distinguish between different types of

CPPA claims, and nothing in the plain language of the statute makes such a

distinction.



      By rejecting the entrepreneurial nexus, we do not eliminate all restraints on

the CPPA’s reach to the medical profession. The Supreme Court, in recognizing

that the anticompetitive conduct of lawyers falls within the reach of federal

antitrust laws, acknowledged that it is “unrealistic to view the practice of [learned]

professions as interchangeable with other business activities, and automatically to

apply to the professions antitrust concepts which originated in other areas.”

Goldfarb v. Va. State Bar, 421 U.S. 773, 788-89 n.17 (1975).              The Court

acknowledged that the “public service aspect, and other features of the profession,

may require that a particular practice, which could properly be viewed as a

violation of the Sherman Act in another context, be treated differently.”          Id.
                                         17

Similarly here, we acknowledge that certain aspects of the practice of medicine,

such as those premised on public service or ethical norms, may lend necessary

context to evaluate a medical professional’s conduct and determine whether it can

support a CPPA claim. See, e.g., Arizona v. Maricopa Cty. Med. Soc., 457 U.S.

332, 348-49 (1982) (holding that doctors’ price-fixing agreements were “not

premised on public service or ethical norms” and therefore fell within the scope of

federal antitrust laws). Because we find any such limitation to be inapplicable

here, however, we decline to address the contours of such an exclusion.



                              III.   Summary Judgment



      With this legal framework in mind, we turn to the question of whether the

trial court erred in granting GWUH’s motion for summary judgment.                 Ms.

Frankeny claims that GWUH’s failure to inform her of Dr. Mai’s role in her

surgery constituted misrepresentation or a failure to state a material fact under the

CPPA, in violation of D.C. Code § 28-3904(e) and (f). She also claims that

GWUH violated the CPPA when it represented to her that the services were of a

particular characteristic or quality that they did not have, in violation of D.C. Code

§ 28-3904(a) and (d). Consistent with the plain language of the CPPA and our

decision in Fort Lincoln, we look to see if the evidence, in the light most favorable
                                        18

to Ms. Frankeny, would permit a jury to find that there was a misrepresentation or

omission, and that the misrepresentation or omission was material. Saucier, 64

A.3d at 442.12 Ms. Frankeny does not need to prove that she was damaged by the

misrepresentation or omission. Critically, she also does not need to prove that the

misrepresentation or omission was intentional under § 28-3904(a) & (d)-(f).



      Consequently, on this record, we conclude that Ms. Frankeny presented

sufficient evidence to survive summary judgment on her CPPA misrepresentation

claims, and to proceed to trial. The evidence viewed in the light most favorable to

Ms. Frankeny demonstrates a material factual dispute as to whether GWUH made

a misrepresentation or failed to disclose material information.     Ms. Frankeny

believed that the surgery would be performed by her surgeon of choice, Dr. Troost,

and the Patient Authorization Forms did not state that a resident, such as Dr. Mai,

could perform the surgery. The language used in the forms, namely, that residents

or medical students would be “involved” in her care, is at best ambiguous as to

      12
           GWUH states that Ms. Frankeny originally pleaded in her complaint that
GWUH “recklessly and intentionally” misrepresented Dr. Mai’s role, but later
changed her argument, indicating that she did not need to show intentional
misrepresentation under the CPPA. To the extent that GWUH is claiming that Ms.
Frankeny is precluded from arguing unintentional misrepresentation, we disagree.
It is evident that the focus of the summary judgment hearing, and the arguments on
appeal, pertain to the viability of Ms. Frankeny’s CPPA claim under a theory of
unintentional misrepresentation. See, e.g., Norried v. Caribbean Contractors, Inc.,
899 A.2d 129, 134 (D.C. 2006).
                                        19

whether she was informed that a resident might perform the surgery. The forms do

not disclose that someone other than Dr. Troost could perform the surgical

procedure, only that others may serve as part of her “health care team” (which

included all manner of medical and hospital personnel) and that some “appropriate

observers” could be “presen[t] . . . for advancement of medical education and

care.” A jury could find that the evidence, viewed in the light most favorable to

Ms. Frankeny, made it reasonable for Ms. Frankeny to understand the forms as

authorizing residents to observe Ms. Frankeny’s procedure for the advancement of

their medical education and care or to perform related services, not to perform the

surgery itself. And GWUH did not expressly inform Ms. Frankeny that Dr. Mai

would perform the surgery.



      Further, the evidence viewed in the light most favorable to Ms. Frankeny

supports and would permit a jury to find that the misrepresentation or failure to

disclose information was material. Saucier, 64 A.3d at 442. A reasonable person

could attach importance to the difference in experience between a first-year

medical resident such as Dr. Mai and a seasoned board-certified surgeon such as

Dr. Troost. Ms. Frankeny testified that GWUH’s failure to inform her of Dr. Mai’s

role would have affected her decision to undergo the surgery.        Further, Ms.

Frankeny presented an expert witness who testified that a hospital should disclose
                                        20

a resident’s role in the patient’s surgery, further supporting her assertion that

GWUH’s omission of that information was material.              Ms. Frankeny also

referenced a 2012 Journal of the American Medical Association article which

indicated that a hospital such as GWUH should have reasonably known that a

resident’s involvement in a medical procedure could potentially affect the patient’s

decision.



      Taken together, the evidence was sufficient to place into dispute whether

GWUH misrepresented a material fact that a reasonable person would consider in

making decisions regarding medical treatment, and the case therefore should have

proceeded to trial to resolve these factual questions. Consequently, we reverse the

grant of summary judgment.



      At present, there is no concern that Ms. Frankeny is blurring the line

between CPPA claims and traditional medical malpractice claims, or raising public

service or ethical considerations, that would require us to recognize any limitation

on the CPPA’s reach to the practice of medicine. Appellant’s CPPA claims are

based solely on GWUH’s alleged misrepresentation in failing to adequately inform

her of who would be performing the surgery. The crux of Ms. Frankeny’s claims

is that GWUH misrepresented, intentionally or unintentionally, who would be
                                        21

performing her surgical procedure, without regard to whether she was actually

misled, injured, or suffered damages; 13 these CPPA claims do not, in and of

themselves, pertain to the quality of the medical service provided. Rather, our

conclusion is bolstered by the fact that Ms. Frankeny filed a separate medical

malpractice suit against GWUH, based on the alleged deficiencies in the

performance of the surgery and the alleged injuries resulting therefrom. See supra

note 4. That suit required proof that the manner in which the medical providers

performed their medical functions failed to comport with the standard of care, that

the providers’ breach of the standard of care was the proximate cause of her

injuries, and that she suffered damages resulting therefrom. See Morrison, 407

A.2d at 560. The existing framework allows litigants and courts to distinguish, as

necessary, between CPPA and medical malpractice causes of action.



                                 IV.    Conclusion



      For the abovementioned reasons, we vacate the grant of summary judgment

in GWUH’s favor, and remand for this case to proceed to trial.




      13
        The CPPA authorizes treble damages or $1,500 per violation. See D.C.
Code § 28-3905(k)(2).
22



     So ordered.
