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Phillips v. A Triangle Women's Health Clinic12/31/2002
ed by a member of a learned profession.
This Court has previously stated that:
In order for the learned profession exemption to apply, a two-part test must be satisfied. First, the person or entity performing the alleged act must be a member of a learned profession. Second, the conduct in question must be a rendering of professional services. Reid v. Ayers, 138 N.C. App. 261, 266, 531 S.E.2d 231, 235 (2000) (citation omitted).
By focusing solely on the first factor, the majority mistakenly relies on two recent opinions of this Court. See Burgess v. Busby, 142 N.C. App. 393, 544 S.E.2d 4 (2001); Gaunt v. Pittaway, 139 N.C. App. 778, 534 S.E.2d 660 (2000). Neither Burgess nor Gaunt stand for the proposition that a defendant's status as a member of a learned profession alone will suffice to bar an action for unfair and deceptive practices.
In Gaunt, the plaintiffs did not argue the defendants' actions did not constitute professional services rendered. Gaunt, 139 N.C. App. at 784, 534 S.E.2d at 664. Instead, the plaintiffs asserted that because the defendants' actions were criminal , they could not be considered legal medical services. Responding to the question presented, this Court then addressed only the first prong of the test outlined in Reid.
While in Burgess this Court placed great emphasis on the defendant's status as a member of the medical profession, it ultimately concluded the plaintiffs' claim for unfair and deceptive practices was barred because "this a matter affecting the professional services rendered by members of a learned profession and therefore [fell] within the exception in N.C.G.S. ยง 75-1.1(b)." Burgess, 142 N.C. App. at 407, 544 S.E.2d at 11-12 (emphasis added).
The dispositive issue in this case is whether an alleged misrepresentation regarding a professional's certification as an OB-GYN is exempted under section 75-1.1(b) as a "professional service rendered."
The rendering of a professional service is limited to the performance of work " onforming to the standards of a profession" and "commanded or paid for by another." American Heritage College Dictionary 1092 (3d ed. 1993) (defining "professional"); Webster's Third New International Dictionary 2075 (1968) (defining "service"). In Reid, this Court held that " dvertising is not an essential component to the rendering of legal services and thus would fall outside the exemption." Reid, 138 N.C. App. at 267, 531 S.E.2d at 236. The learned profession exception also does not apply "when the [professional] is engaged in the entrepreneurial aspects of practice that are geared more towards own interests, as opposed to the interests of clients." Id.
In this case, Dr. Stuart L. Schnider (defendant) allegedly misrepresented his certification as an OB-GYN. This statement was outside the scope of any work commanded or paid for by plaintiff. Instead it was in the nature of an advertisement of defendant's certification and thus does not constitute a "professional service rendered." Accordingly, the learned profession exception is inapplicable, and the trial court erred in dismissing plaintiff's claim for unfair and deceptive practices. This matter should therefore be reversed and remanded.
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