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Darviris v. Petros9/18/2003
ral pursuant to c. 93A, § 2(c), provides that "an act or practice is a violation of [G. L. c. 93A, § 2] if . . . (3) t fails to comply with existing statutes, rules, regulations or laws, meant for the protection of the public's health, safety, or welfare . . . ." 940 Code Mass. Regs. § 3.16 (1993). According to the plaintiff, the patient's bill of rights, G. L. c. 111, § 70E (applicable to facilities licensed by the Department of Public Health), is such a statute. It provides, inter alia, that " very patient . . . shall be provided by physician . . . the right: (a) to informed consent to the extent provided by law." Putting these two provisions together, the plaintiff argues that the defendant's violation of c. 111 is a per se violation of c. 93A. We disagree.
The Attorney General's regulation was promulgated before the enactment of the patient's bill of rights. See Piccuirro v. Gaitenby, 20 Mass. App. Ct. 286, 291 & n.7 (1985) (indicating existence of regulation at least as early as 1975); St. 1979, c. 214 (enacting patient's bill of rights). The patient's bill of rights provides that any person whose rights under the bill are violated may bring a malpractice action pursuant to G. L. c. 231, §§ 60B-60E, "in addition to any other action allowed by law or regulation." G. L. c. 111, § 70E. On the other hand, G. L. c. 111, § 70F, regarding, inter alia, informed consent for HTLV-III testing, enacted by St. 1986, c. 241, explicitly states that " hoever violates the provisions of [§ 70F] shall be deemed to have violated [G. L. c. 93A, § 2]." The Legislature's specificity in drafting § 70F suggests to us that while a violation of c. 111, § 70E, may constitute a violation of c. 93A as well, a § 70E violation is not a per se violation of c. 93A. Our interpretation is consistent with the case law. See Billingham v. Dornemann, 55 Mass. App. Ct. 166, 176 (2002) ("whether an act or practice violates a statute or rule promulgated under G. L. c. 93A, § 2, is but one of several factors to be applied to all the circumstances of the transaction"). See also Reiter Oldsmobile, Inc. v. General Motors Corp., 378 Mass. 707, 710-711 (1979) (not every unlawful act is unfair or deceptive); Framingham Auto Sales, Inc. v. Workers' Credit Union, 41 Mass. App. Ct. 416, 418 (1996) ("a mere breach of a legal obligation under commercial law, without more, does not amount to an unfair or deceptive act under G. L. c. 93A").
We therefore conclude that there was no error in the decision of the Superior Court judge in this case. While the doctor may have been negligent for failing to obtain informed consent, there was insufficient evidence that he committed an unfair or deceptive act or practice. The judge's ruling on the expiration of the statute of limitations as to the other claims was also correct.
Judgment affirmed.
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