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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 boardcertified 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 nonmoving 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 nonmoving 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.