Day on Torts

Intentional misrepresentation and medical battery claims fell within HCLA

Where plaintiff alleged that defendant doctor made intentional misrepresentations when obtaining her consent for a surgery and therefore committed medical battery, the claims fell under the HCLA.

In Cooper v. Mandy, No. M2019-01748-SC-R11-CV, 2022 WL 175804 (Tenn. Jan. 20, 2022), plaintiff met with defendant doctor to discuss a breast reduction surgery, and defendant stated that “he was a board-certified plastic surgeon.” Based on these representations, plaintiff consented to the surgery, which allegedly went wrong in that it was “unnecessarily painful,” “performed in a barbaric fashion,” and left plaintiff “disfigured and with grotesque and painful bacterial infections.” Plaintiff later discovered that defendant was not board-certified as a plastic surgeon or in any other specialty.

Plaintiff filed suit against defendant doctor and others associated with him for intentional misrepresentation and medical battery. According to plaintiff, she “would not have consented to the surgery if she had known [defendant] was not a board-certified plastic surgeon,” and because the misrepresentations “negated [plaintiff’s] consent,” the surgery was a medical battery. Defendant filed a motion to dismiss, arguing that the claims fell within the HCLA and that plaintiff had not complied with the pre-suit notice requirement of that Act. The trial court denied the motion to dismiss, holding that “Plaintiffs’ claims for medical battery and intentional misrepresentation were based on false statements the Defendants made to [plaintiff] before they established a doctor-patient relationship,” and the Court of Appeals affirmed this “temporal analysis” on interlocutory appeal. The Tennessee Supreme Court granted interlocutory appeal on the sole issue of “whether the claim for injuries arising from a surgical procedure to which the plaintiff consented is governed by the [HCLA] when the claim is based on pre-surgical misrepresentations about the surgeon’s credentials by the defendant health care providers,” and it ultimately reversed both the trial court and Court of Appeals.

The Supreme Court began its analysis by reviewing the history of the definition of “health care liability action,” noting that legislation in 2011 “statutorily abrogated [the previous] nuanced approach for distinguishing ordinary negligence and health care liability claims.” (internal citation omitted). With this change, “the Legislature expressed a clear legislative intent to broaden the scope of the Act to include every lawsuit against a health care provider that alleged an injury related to the provision of health care without regard to the theory of liability.” (internal citation and quotation omitted). Applying the HCLA to the facts of this case, the Court found that “Plaintiff’s medical battery and intentional misrepresentation claims [were] included within the definition of a ‘health care liability action.’” The Court specifically noted that plaintiff claimed to have been injured during the surgical procedure; that plaintiff asserted that the surgical procedure was unnecessarily painful; and that plaintiff’s purported disfigurement and bacterial infections were from the procedure. Because of this, the Court held that the HCLA applied “regardless of the theories of liability.”

Plaintiff argued that the misrepresentations negated her consent, making the surgical procedure a medical battery, but the Court ruled that the HCLA still applied. The Court wrote that “here the Plaintiffs’ claims against the Defendants, who are health care providers, are for injuries arising from the surgery[.]” While noting that the result might have been different before the 2011 legislation, the Court explained that under the current broad definitions within the HCLA, “Plaintiffs cannot avoid the scope of the Act by alleging a health care provider committed medical battery and intentional misrepresentation when the claim relates to the health care service provided.”

Plaintiff also argued that “the Act [did] not apply because Defendants’ misrepresentations were commercial and were made before [plaintiff] and [defendant] established a doctor-patient relationship,” with plaintiff equating the discussion during which the misrepresentations were made to a “sales meeting.” The Court rejected this argument, reasoning:

[T]his temporal view focuses entirely on the surgical procedure and ignores the necessary role of the doctor-patient informed consent discussion in the provision of health care services. …It was during the informed consent meeting that [defendants] mispresented Dr. Mandy’s credentials. Under the Health Care Liability Act, a standard of care applies to the doctor-patient informed consent discussion. Thus, a plaintiff alleging an injury because a health care provider failed to provide enough information about a medical procedure must comply with the Act. The informed consent discussion, by its nature, has to occur before the surgical procedure, but its timing does not mean it is not a part of the provided health care service.

(internal citations omitted).

Finally, plaintiff argued that compliance with the HCLA was “not necessary because their medical battery claim require[d] no expert testimony.” The Court stated, though, that while expert proof may not be required, “section 29-26-101(a)(1)’s definition of ‘health care liability action’ contains no exemption for cases not requiring expert testimony.”

In this case, plaintiff “alleged that the surgery caused [plaintiff] to sustain physical injuries and other damages.” The Court ultimately concluded that under these facts, “it was not the Defendants’ false statements that caused [plaintiff’s] injuries, but the unsuccessful surgery performed by [defendant].” Accordingly, the HCLA applied.

This opinion notably reverses the previous Court of Appeals opinion in this case, but it tracks with other caselaw interpreting the HCLA in a very broad way to cover most claims arising in a health care setting. As this opinion demonstrates, it is safest to follow the requirements of the HCLA if your case arises within a medical context.

This opinion was released 3.5 months after oral argument.

Note: Chapter 40, Section 1; Chapter 42, Section 2; Chapter 46, Section 2; and Chapter 47, Sections 1 and 2 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.

Day on Torts: Leading Cases in Tennessee Tort Law contains summaries of leading cases on over 500 topics and citations to more than 1500 additional cases. The 500,000+ word book (and two others, Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Cases) is available by subscription at www.birddoglaw.com and is continually updated as new decisions and statutes impact Tennessee law. Click on the link to see the book’s Table of Contents.

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