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A Better Partnership
January 30, 2013

COA Opinion: Consumer Protection Act does not apply to claim that doctor intentionally misdiagnosed patients to increase billing

In the three cases consolidated under Lucas v. Awaad, the plaintiffs alleged that their doctor intentionally made false diagnoses in order to increase billing. The Michigan Court of Appeals determined that the plaintiffs' claim under the Michigan Consumer Protection Act ('MCPA'), MCL 445.901 et seq. was barred by the MCPA's exemption for transactions specifically authorized by law, see MCL 445.904(1)(a), since the practice of medicine is specifically authorized and regulated by law. See Smith v. Globe Life Ins. Co., 460 Mich. 446, 465; 597 N.W.2d 28 (1999).

Another plaintiff alleged intentional infliction of emotional distress ('IIED') and silent fraud arising from the incorrect diagnosis of her children. The trial court denied the defendants' motion for summary disposition on these claims, finding the claims did not sound in medical malpractice. The appellate court reversed as to both claims because the alleged actions supporting IIED sounded in medical malpractice and plaintiff failed to allege a duty to disclose medical information to a patient's parent that would properly support her silent fraud claim.

The defendants also contended that the trial court improperly struck their affidavits of meritorious defense and accepted the plaintiffs' affidavits of merit. The court of appeals reversed as to the striking of defendants' experts' affidavits but affirmed the decision to accept plaintiffs' affidavit and strike the defendant doctor's affidavit. The court reasoned that the doctor's affidavit was untimely and could not be considered an amendment to the experts' affidavits.

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