Frankeny v. District Hospital Partners: DC's Consumer Protection Law Reaches the Operating Room
You choose your surgeon carefully. You research credentials, you meet face to face, you consent to surgery by that doctor. Then you go under anesthesia — and someone else picks up the scalpel.
That is what Rachel Frankeny alleged happened to her. She chose a board-certified surgeon for her tonsillectomy at a District hospital. A first-year resident performed at least part of the procedure without disclosure, and she woke up to a permanent loss of her sense of taste. When she sued under the DC Consumer Protection Procedures Act (CPPA), the trial court threw the claim out on summary judgment, reasoning that consumer protection law doesn't reach medical care.
Late last month, the DC Court of Appeals reversed. In Frankeny v. District Hospital Partners, LP, 225 A.3d 999 (D.C. 2020), the court held that the CPPA fully applies to medical providers — and sent the case back for trial.
We know this case well: our partner Jacob Lebowitz argued the appeal for Ms. Frankeny, and we could not be prouder of the result. It is not every day that a single argument moves the law of the District forward for every patient in the city.
The statute at the center of the case
The Consumer Protection Procedures Act is the District's general-purpose shield against unfair and deceptive trade practices. It prohibits, among other things, misrepresenting the characteristics of services, representing that services are of a particular standard when they are not, and failing to state a material fact where the omission tends to mislead. It gives consumers a private right of action to enforce it. For years, the open question was whether "consumers" of medical services could use it — hospitals argued that medicine is a learned profession beyond the statute's reach, and a line of federal decisions had limited the CPPA to the "entrepreneurial" side of health care. Frankeny answers the question for the District's own courts, and the answer is that patients are consumers too.
What the court held
Three holdings matter, and each removes a barrier that hospitals had long used to keep consumer protection claims out of the operating room:
1. The CPPA applies to medical providers. Health care is a consumer transaction. Hospitals and physicians who make misrepresentations — or fail to disclose material facts — about the services they sell are within the statute's reach, like any other merchant. 2. No intent to deceive is required. Under the CPPA provisions at issue — D.C. Code § 28-3904(a), (d), (e), and (f) — a plaintiff need not prove the misrepresentation was intentional. A material misrepresentation or omission that tends to mislead is enough. 3. No "entrepreneurial nexus" requirement. Some federal decisions (the Dorn line) had grafted onto the CPPA a requirement that the misconduct relate to the "entrepreneurial" or business side of medicine — billing and advertising — rather than the care itself. The DC Court of Appeals expressly rejected that limitation. There is no entrepreneurial-motive requirement for CPPA claims against medical service providers.
Why the CPPA route matters
A traditional medical malpractice claim asks whether the provider violated the professional standard of care — a question that requires expert testimony and focuses on clinical judgment. A CPPA claim asks a different question: was the patient misled about what she was buying? Who would actually perform the surgery is about as material as a fact can be.
The remedies differ too. The CPPA authorizes treble or statutory damages, punitive damages, and attorneys' fees. For patients harmed by nondisclosure — so-called "ghost surgery" cases, bait-and-switch provider substitutions, and misrepresented credentials — Frankeny opens a second, independent path to accountability alongside the traditional malpractice claim.
To be clear, the two claims are complements, not substitutes. Where a substitute provider's work also fell below the standard of care, the malpractice claim compensates the resulting injury; the CPPA claim addresses the deception itself. A patient misled about who would operate has a consumer protection grievance even before the first question about surgical technique is asked — and Frankeny means that grievance no longer gets dismissed at the courthouse door.
What this means for injured people in the District of Columbia
- If you were told one physician would treat you and someone else did, that nondisclosure may itself be actionable — separate from whether the substitute's work met the standard of care.
- Consent forms matter. What you were told, and what was left out, before you signed is now squarely a consumer protection question.
- Hospitals answer for their teaching programs. Training residents is essential — hiding their role from the patient is not.
A brief word about the moment we publish this: the District declared a public health emergency last week, and the courts are curtailing in-person operations. Legal deadlines and legal rights continue, and so do we — our office remains fully available to clients by phone and video.
If you or a loved one has been hurt, call Posey Lebowitz at (202) 524-0123 or send us a message for a free consultation.
Part of our DMV case law archive, compiled in 2026 to reflect the archive of some of the most important decisions in injury law.