Mid-Atlantic Health Law TOPICS

Maryland's highest appellate court recently subjected health care practitioners to liability under the Maryland Consumer Protection Act. While the Act makes it illegal to engage in unfair or deceptive trade practices in relation to consumers, the Act also exempts professional services of a medical or dental practitioner from the Act, and bans suits under the Act for "injuries sustained as a result of the professional services" of a health care provider. Nevertheless, Maryland's highest court, in Scull v. Groover, Christie & Merritt, P.C., construed that exemption and that ban very narrowly.

In Scull, a patient alleged that a radiology group billed for x-rays already paid for, in part, by a health maintenance organization (HMO), contrary to Maryland's prohibition on health care providers "balance billing" HMO enrollees for covered services (meaning that if an HMO does not pay the full bill, the provider cannot try to collect the ?balance? remaining, other than cost sharing amounts such as co-pays). The patient sued the group under the Act, alleging that the balance billing constituted an unfair or deceptive trade practice.

The court interpreted the Act's professional services exemption and ban on suits to extend only to allegations that providers' medical services violated the Act, but not the providers billing activities. The court explained that the exemption was only intended to prevent the Act from turning into a mini-malpractice law. (The court was untroubled by the tension between this conclusion and the same court's prior rulings that physicians' practice management activities are within the practice of medicine, and, therefore, subject to discipline by the Board of Physicians.)

The bottom line is that doctors now face new exposure, because the Act is enforceable by the Attorney General, as well as by consumers in individual or class action suits.