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Florida's Deceptive and Unfair Trade Practices Act and Physicians: Physicians Beware

by Jared Dall'au on Categories: healthcare law

Florida's Deceptive and Unfair Trade Practices Act and Physicians: Physicians Beware
Florida's Deceptive and Unfair Trade Practices Act (FDUTPA) is a law that has been seldom used against physicians, but physicians must be vigilant to ensure they do not run afoul of FDUTPA. This article will identify some of the behaviors that could result in a statutory violation.
Florida's Deceptive and Unfair Trade Practices Act
Pursuant to §501.204(1) of FDUTPA, “unfair or deceptive acts or practices in the conduct of any trade or commerce” are illegal. FDUTPA, however, does not create a bright line list of acts that are “deceptive,” “unfair,” or “unconscionable” because it would put “unscrupulous businesses one step ahead of Florida's ability to combat such practice.”1  Rather, the Florida Supreme Court has broadly stated that a deceptive practice is one that involves a “representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer's detriment.”2 FDUTPA is liberally construed to protect the consuming public from those who engage in deceptive or unfair acts or practices in trade or commerce.3
This broadly interpreted Florida statute, therefore, is best understood in Florida case law that has adjudicated various acts as violating FDUTPA. However, as a seldom used statute against healthcare providers, the number of precedents that can be cited strictly from Florida courts is very low. Therefore, interpretations from federal cases and other states with deceptive and unfair trade practices laws similar to Florida are useful in determining what acts by physicians are best avoided in order not to violate FDUTPA.4
Physician Behavior that Could Violate FDUTPA
Courts have held that consumer protection acts, like FDUTPA, apply to “entrepreneurial aspects” of medicine that do not involve the “actual competence of the medical practitioner.”5  The following behaviors may draw scrutiny under FDUTPA:
  1. Physicians must be aware that acting in concert with other physicians to orchestrate agreements with insurers to set higher prices for medical services and to refuse to deal with insurers that did not meet their demands for higher rates will likely violate antitrust law, as price fixing is a per-se violation.Such behavior may also be considered an unfair method of competition. Price fixing will also likely be considered a violation of the FDUTPA.7
  2. Physicians must be aware that a physician cannot represent to a patient that a specific medical procedure will be used during the patient's surgery and then perform a different medical procedure. The patient must consent to the procedure being done, with caveats to this rule like performing services necessary to save a patient's life while the patient is unable to give consent. Switching procedures unnecessarily without patient consent to increase revenue will likely violate FDUTPA.8
  3. A physician must be aware that they cannot represent clinical experience or a specific level of medical skill to a patient that the physician does not possess. This is false advertising and is arguably aimed at increasing the physician's revenue by adding another patient. This will likely be a violation of FDUTPA.9
The above examples are only a small sample of the myriad of issues that physicians may face; they are by no means an all encompassing list.
Conclusion

The application of FDUTPA to physicians is an area that is continuing to evolve. It is clear that physicians must be very cautious and honest when describing their credentials, abilities, and must be cautious to not price fix, but the land mines that await physicians go well beyond these examples. Physicians will likely continue to have more of their medical practices intertwined with business practices. As such, physicians must remain alert as to not run afoul of FDUTPA in the evolving physician market.
Jared Dall'au is an associate at Zumpano Patricios & Winker, P.A. in Coral Gables. He concentrates his practice in health law and tax law.
1 See Dept. of Legal Affairs v. Father and Son Moving & Storage, 643 So. 2d 22, 27 (Fla. 4th D.C.A. 1994).
2 PNR Inc. v. Beacon Prop. Mgmt., Inc., 842 So. 2d 773, 777 (Fla. 2003).
3 See Fla Stat. §501.202(2).
4 See Fla Stat. §501.204(2) (stating “due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to s. 5(a)(1) of the Federal Trade Commission Act, 15 U.S.C. s. 45(a)(1)”).
5 See Quimby v. Fine, 45 Wn. App. 175, 180-81 (Wash. App. 1986); See also Dorn v. McTigue, 121 F.Supp.2d 17, 20 (D.D.C. 2000).
6 See Texaco Inc. v. Dagher, 547 U.S. 1, 5, 126 S. Ct. 1276, 164 L. Ed. 2d 1 (2006) (Stating “[p]rice-fixing agreements between two or more competitors, otherwise known as horizontal price-fixing agreements, fall into the category of arrangements that are per se unlawful.”) 
7 See In re Roaring Fork Valley Physicians I.P.A., 149 F.T.C. 1221, 2010 FTC LEXIS 119, 2010 FTC LEXIS 119.
8 Quimby v. Fine, 45 Wn. App. 175 (Wash. App. 1986). FDUTPA and Washington's Deceptive and Unfair Trade Practices Act are both derived from the federal Deceptive and Unfair Trade Practices Act.
9 Chapman v. Wilson, 826 S.W.2d 214 (Tex. Ct. App. 1992). The Texas Deceptive Trade Practice Statute, Tex. Bus. & Com. Code Ann. §§17.41 -17.59 and Tex. Rev. Civ. Stat. Ann. Art.4590i § 12.01 (Supp. 1994), is similar to FDUTPA.
By Jared Dall'au
Zumpano Patricios & Winker, P.A. 
312 Minorca Ave.
Coral Gables FL, 33134
305-444-5565
jdallau@zpwlaw.com
www.zpwlaw.com
South Florida Legal Guide 2016 Edition

Tags: fdutpa zumpano dall\'au healthcare

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