Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 07-29-2022
Case Style:
Donna Cooper et al. v. Dr. Mason Wesley Mandy et al.
Case Number: M2019-01748-SC-R1-CV
Judge:
SHARON G. LEE; Presiding Judge
ROGER A. PAGE
JEFFREY S. BIVINS and HOLLY KIRBY
joined
Court:
IN THE SUPREME COURT OF TENNESSEE
On Appeal From The Court of Appeals Circuit Court for Williamson County
James G. Martin III
Judge
Plaintiff's Attorney:
Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World.
Re: MoreLaw National Jury Verdict and Settlement
Counselor:
MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public.
MoreLaw will publish litigation reports submitted by you free of charge
Info@MoreLaw.com - 855-853-4800
Defendant's Attorney: Eric Miles and Brigham A. Dixson
Dale Bay and Paul Jordan Scott
Description:
Nashville, TN - Medical Malpractice lawyer represented Plaintiffs with a Medical Malpractice lawsuit.
In September 2014, Plaintiff Donna Cooper met with Dr. Mason Wesley Mandy at
NuBody Concepts, LLC in Brentwood, Tennessee, to discuss breast reduction surgery.1
Dr. Mandy told Ms. Cooper he was a board-certified plastic surgeon with years of
experience in performing the procedure. NuBody Concepts employee Rachelle Norris
confirmed Dr. Mandy’s designation as a board-certified plastic surgeon. Based on the
representations by Dr. Mandy and Ms. Norris, Ms. Cooper agreed for Dr. Mandy to
perform the breast reduction surgery and paid NuBody Concepts for the surgery. Dr.
Mandy, however, was not board-certified as a specialist in any field.
Dr. Mandy operated on Ms. Cooper in October 2014. According to Ms. Cooper, the
surgery was “unnecessarily painful,” was performed in a “barbaric fashion in unsterile
conditions,” and “left her disfigured and with grotesque and painful bacterial infections.”
In April 2018, the Coopers (“the Plaintiffs”) filed suit in Williamson County Circuit
Court against Defendants Dr. Mandy, NuBody Concepts, and Middle Tennessee Surgical
Services, PLLC (“the Defendants”).
2 The Plaintiffs sought to recover compensatory
damages for Ms. Cooper’s pain and suffering, permanent physical disfigurement, loss of
enjoyment of life, and lost income, as well as for Mr. Cooper’s loss of consortium. The
Plaintiffs alleged that the Defendants intentionally misrepresented Dr. Mandy’s
qualifications and that Ms. Cooper would not have consented to the surgery if she had
known Dr. Mandy was not a board-certified plastic surgeon; that the Defendants committed
1 The Plaintiffs alleged these facts in their complaint. In reviewing a trial court’s ruling on a
Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss, we assume the truth of factual allegations
in the complaint. Effler v. Purdue Pharma, L.P., 614 S.W.3d 681, 687 (Tenn. 2020).
2 The Plaintiffs previously filed suit against the Defendants in 2015, voluntarily dismissed the case
in 2017, and refiled within one year of the dismissal of the first action.
- 3 -
a medical battery because their false representations negated Ms. Cooper’s consent to the
surgery; and that the Defendants engaged in a civil conspiracy.
The Defendants moved to dismiss under Tennessee Rule of Civil Procedure
12.02(6) based on the Plaintiffs’ failure to comply with the pre-suit and filing requirements
of the Act.3 The Plaintiffs, admitting their noncompliance with the Act, argued their claims
were not for negligent care but for medical battery and intentional misrepresentation which
were not covered by the Act. The Plaintiffs also asserted that even if the Act applied, strict
compliance was not required because expert testimony was not needed to prove their
claims.4
The trial court denied the motions, holding that the Health Care Liability Act did
not apply because the Plaintiffs’ claims for medical battery and intentional
misrepresentation were based on false statements the Defendants made to Ms. Cooper
before they established a doctor-patient relationship.
5 Thus, the Plaintiffs’ action was not
related to the provision of health care services, and compliance with the Act’s procedural
requirements was not required. On interlocutory review, the Court of Appeals also applied
a temporal analysis, concluding the Health Care Liability Act did not apply because the
Defendants’ misrepresentations were made as part of their business operations before any
health care services were provided. Cooper v. Mandy, No. M2019-01748-COA-R9-CV,
2020 WL 6748795, at *1 (Tenn. Ct. App. Nov. 17, 2020), perm. app. granted (Tenn. Apr.
7, 2021).
We granted the Defendants’ application for permission to appeal. On interlocutory
appeal, we limit our review to the issue certified by the trial court. Dialysis Clinic, Inc. v.
Medley, 567 S.W.3d 314, 317 (Tenn. 2019) (citing Wallis v. Brainerd Baptist Church, 509
S.W.3d 886, 896 (Tenn. 2016)). Here, that issue is whether a claim for injuries arising from
a surgical procedure to which the plaintiff consented is governed by the Health Care
Liability Act when the claim is based on pre-surgical misrepresentations about the
surgeon’s credentials by the defendant health care providers. When a claim is governed by
3 The Defendants claimed that the Plaintiffs failed to provide a HIPAA-compliant medical records
authorization with the pre-suit notice letters; that the Plaintiffs failed to wait the required sixty days after
sending the notice letters before filing suit; that the Plaintiffs’ complaint failed to state compliance with the
Act; and that the complaint did not include a copy of the pre-suit notice letters, certificates of mailing and
affidavit, and a certificate of good faith. See Tenn. Code Ann. §§ 29-26-121 through -122 (2012 & Supp.
2021).
4 The Plaintiffs also challenged the constitutionality of the Act. The trial court’s ruling that the Act
was constitutional is not an issue in this interlocutory appeal.
5 The trial court also held that the Act did not apply to the civil conspiracy and loss of consortium
claims.
- 4 -
the Act, failure to comply with the Act’s requirements of pre-suit notice and a certificate
of good faith may result in the dismissal of the action. See Ellithorpe v. Weismark, 479
S.W.3d 818, 828 (Tenn. 2015) (explaining that noncompliance with pre-suit notice
requirements results in dismissal without prejudice and that failure to file a certificate of
good faith when expert testimony is necessary results in dismissal with prejudice); Foster
v. Chiles, 467 S.W.3d 911, 916 (Tenn. 2015) (citing Stevens ex rel. Stevens v. Hickman
Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 553 (Tenn. 2013)) (same).
A motion to dismiss under Rule 12.02(6) is the appropriate way to challenge
compliance with the Act’s procedural requirements. Ellithorpe, 479 S.W.3d at 823 (citing
Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012)).6 A Rule 12.02(6)
motion challenges only the legal sufficiency of the complaint. In ruling on the motion,
courts “must construe the complaint liberally,” presume all alleged facts are true, and
“giv[e] the plaintiff the benefit of all reasonable inferences.” Id. at 824 (quoting Phillips v.
Montgomery Cnty., 442 S.W.3d 233, 237 (Tenn. 2014)). Our review of the trial court’s
decision involves a question of law and is de novo. We do not presume the correctness of
the trial court’s decision. Effler v. Purdue Pharma, L.P., 614 S.W.3d 681, 688 (Tenn. 2020)
(citing State v. Strode, 232 S.W.3d 1, 9 (Tenn. 2007)).
In interpreting the Health Care Liability Act, it is our role to give effect to the
Legislature’s intent without limiting or extending the meaning of the Act. Stevens, 418
S.W.3d at 553 (citing Sullivan ex rel. Hightower Oil Co. v. Edwards Oil Co., 141 S.W.3d
544, 547 (Tenn. 2004); Garrison v. Bickford, 377 S.W.3d 659, 663 (Tenn. 2012)). Every
word in the Act is presumed to have meaning and purpose. Ellithorpe, 479 S.W.3d at 827
(citing Johnson v. Hopkins, 432 S.W.3d 840, 848 (Tenn. 2013)). We give the words of the
Act “their natural and ordinary meaning in the context in which they appear and in light of
the statute’s general purpose,” and we apply the Act’s plain meaning when it is clear,
enforcing the statute as written. Id. (quoting Johnson, 432 S.W.3d at 848).
II.
The dispositive issue here is whether the Plaintiffs are asserting a “health care
liability action” as defined by the Health Care Liability Act. Tenn. Code Ann.
§ 29-26-101(a)(1) (2012 & Supp. 2021). Section 29-26-101 was enacted as part of the Civil
6 The Defendants also moved for judgment on the pleadings under Rule 12.03, asserting the
complaint failed to state a claim for which relief could be granted. The trial court denied the Defendants’
Rule 12.03 motions, finding that the Plaintiffs had alleged sufficient facts to pursue their claims for
intentional misrepresentation, medical battery, civil conspiracy, and loss of consortium. That ruling is not
at issue in this interlocutory appeal.
- 5 -
Justice Act of 2011, which amended the Tennessee Medical Malpractice Act.7 Among
other things, the Civil Justice Act removed references to “medical malpractice,” inserted
references to “health care liability,” and defined a “health care liability action.”8 The Civil
Justice Act was enacted soon after this Court’s decision in Estate of French v. Stratford
House, 333 S.W.3d 546 (Tenn. 2011), superseded by statute, Tennessee Civil Justice Act
of 2011, ch. 510, §§ 8–9, 2011 Tenn. Pub. Acts 1505, as recognized in Ellithorpe, 479
S.W.3d at 826–27. In Estate of French, we held that the Medical Malpractice Act applied
only to claims with allegations bearing a “substantial relationship to the rendition of
medical treatment by a medical professional” or involving “medical art or science, training,
or expertise.” Id. at 555–56. This meant that some claims of ordinary negligence against a
health care provider were not subject to the Medical Malpractice Act’s requirements of
pre-suit notice and expert testimony. Id. at 555. Under Estate of French, Tennessee courts
had to distinguish between claims involving ordinary negligence and claims involving
medical malpractice. Ellithorpe, 479 S.W.3d at 825–26. But the Civil Justice Act statutorily
abrogated Estate of French’s “‘nuanced’ approach for distinguishing ordinary negligence
and health care liability claims.” Id. at 827. In doing so, 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. Id.
Casting a broad net over claims against health care providers, section
29-26-101(a)(1) of the Health Care Liability Act defined a health care liability action as
“any civil action . . . alleging that a health care provider or providers have caused an injury
related to the provision of . . . health care services to a person, regardless of the theory of
liability on which the action is based.” Tenn. Code Ann. § 29-26-101(a)(1). Also, section
-101(c) made “[a]ny such civil action or claim . . . subject to this part regardless of any
other claims, causes of action, or theories of liability alleged in the complaint.” Tenn. Code
Ann. § 29-26-101(c).
We held in Ellithorpe that “[g]iving every word in this section its full effect and
plain meaning,” section 29-26-101 “establishes a clear legislative intent that all civil
actions alleging that a covered health care provider or providers have caused an injury
related to the provision of . . . health care services” be subject to the procedural
requirements of the Act, “regardless of any other claims, causes of action, or theories of
liability alleged in the complaint.” 479 S.W.3d at 827. Neither the language of the Act nor
our interpretation of section -101 has changed since we decided Ellithorpe. See, e.g.,
Newman v. State, 586 S.W.3d 921, 925–26 (Tenn. Ct. App. 2019) (holding that the Act
applied to a claim alleging negligence by staff in supervising and monitoring patients at a
7
See Tennessee Civil Justice Act of 2011, ch. 510, §§ 8–9, 2011 Tenn. Pub. Acts 1505 (codified
as amended at Tenn. Code Ann. § 29-26-101).
8
See id. As a result, the Medical Malpractice Act became the Health Care Liability Act.
- 6 -
mental health facility because under section 29-26-101, the Act applies “regardless of the
theory of liability” and health care services to persons “includes staffing, custodial or basic
care”); Zink v. Rural/Metro of Tenn., L.P., 531 S.W.3d 698, 705 & n.3 (Tenn. Ct. App.
2017) (citing Ellithorpe and noting that in previous ordinary negligence cases against
health care providers, the claims were not subject to the Act because they were filed before
the enactment of section 29-26-101 defining health care liability action); Osunde v. Delta
Med. Ctr., 505 S.W.3d 875, 883–85 (Tenn. Ct. App. 2016) (noting Ellithorpe’s holding
that the “‘nuanced’ approach for distinguishing an ordinary negligence claim from a
medical malpractice claim” had been abrogated by the Act’s comprehensive definition of
a health care liability action, and a claim alleging that a radiology technician provided a
patient with a faulty stool when taking an x-ray was a health care liability action as defined
by the Act).
Applying the clear language of section 29-26-101, we hold the Plaintiffs’ medical
battery and intentional misrepresentation claims are included within the definition of a
“health care liability action.” The Plaintiffs’ complaint alleged that the Defendants are
health care providers who caused injuries to Ms. Cooper during a surgical procedure. The
complaint asserted “that the surgical procedure was unnecessarily painful, that it was done
in a barbaric fashion in unsterile conditions and that it has left [Ms. Cooper] disfigured and
with grotesque and painful bacterial infections.” (Emphasis added). The complaint also
stated that Ms. Cooper “sustained permanent physical disfigurement, pain and suffering,
loss of enjoyment of life, lost income, strange bacterial infections from the procedure, and
months of pain, not to mention the strain on her marriage.” (Emphasis added). The
complaint alleged medical battery and intentional misrepresentation, but the Act applies
regardless of the theories of liability. Thus, the Plaintiffs are asserting a “health care
liability action” as defined by section 29-26-101(a)(1), and the Act applies to their claims.
The Plaintiffs argue the Health Care Liability Act does not apply for several reasons.
First, the Plaintiffs contend that the Defendants committed a medical battery when Dr.
Mandy operated on Ms. Cooper because their misrepresentations negated her consent for
surgery. A health care provider can be liable for medical battery by failing to obtain consent
from a patient before performing a procedure even though the medical care was not
negligently provided. White v. Beeks, 469 S.W.3d 517, 525 (Tenn. 2015). But here the
Plaintiffs’ claims against the Defendants, who are health care providers, are for injuries
arising from the surgery, and the Act applies “regardless of the theory of liability.” Before
the enactment of the Civil Justice Act, including section 29-26-101, a medical battery claim
may have been considered an ordinary tort claim and not subject to the Medical Malpractice
Act.
9 But that changed when the Legislature statutorily abrogated Estate of French by
9
See Estate of French, 333 S.W.3d at 556 (explaining that not every case against a health care
provider qualified as a medical malpractice claim); Bailey v. Tasker, 146 S.W.3d 580, 585 (Tenn. Ct. App.
- 7 -
adopting a broad definition of “health care liability action” in section 29-26-101(a)(1) that
included claims against health care providers “regardless of the theory of liability on which
the action is based.” Tenn. Code Ann. § 29-26-101(a)(1). The Legislature was purposeful
in defining “health care liability action” in section 29-26-101(a)(1) broadly enough to
“cast[] a wide net over civil claims that arise within a medical setting.” Cordell v. Cleveland
Tenn. Hosp., LLC, 544 S.W.3d 331, 336 (Tenn. Ct. App. 2017). Because this definition is
so broad, most claims arising in a medical setting will be health care liability claims.
Osunde, 505 S.W.3d at 884–85. Under this expansive definition, the 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.
Second, the Plaintiffs contend that the Act does not apply because the Defendants’
misrepresentations were commercial and were made before Dr. Mandy and Ms. Cooper
established a doctor-patient relationship. According to the Plaintiffs, Dr. Mandy and Ms.
Norris misstated Dr. Mandy’s qualifications during a “sales meeting” to gain Ms. Cooper’s
agreement to the procedure before any health care services were provided. But this
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.
Before surgery, Dr. Mandy had a duty to share with Ms. Cooper enough information about
the procedure to enable her to give informed consent for him to proceed. Miller ex rel.
Miller v. Dacus, 231 S.W.3d 903, 907 (Tenn. 2007) (quoting Tenn. Code Ann.
§ 29-26-118). This information typically includes the reason for performing the procedure,
the risks and benefits of the procedure, the chances for a successful outcome, and any
alternative treatments available. Id. (quoting Shadrick v. Coker, 963 S.W.2d 726, 732
(Tenn. 1998)). Without Ms. Cooper’s informed consent, Dr. Mandy had no authority to
perform the surgery. See Shadrick, 963 S.W.2d at 732 (quoting Cardwell v. Bechtol, 724
S.W.2d 739, 751 (Tenn. 1987)) (explaining that a procedure performed without informed
consent is a battery). It was during the informed consent meeting that Dr. Mandy and Ms.
Norris misrepresented Dr. Mandy’s credentials. Under the Health Care Liability Act, a
standard of care applies to the doctor-patient informed consent discussion. See Tenn. Code
Ann. § 29-26-118.10 Thus, a plaintiff alleging an injury because a health care provider
2004) (noting that an informed consent claim would be governed by the statute of limitations for a medical
malpractice suit, but a medical battery claim was subject to the statute of limitations for an ordinary tort
claim alleging injury to the person).
10 In a health care liability action, the plaintiff shall prove by [competent expert testimony]
that the defendant did not supply appropriate information to the patient in obtaining
informed consent (to the procedure out of which plaintiff’s claim allegedly arose) in
accordance with the recognized standard of acceptable professional practice in the
profession and in the specialty, if any, that the defendant practices in the community in
which the defendant practices and in similar communities.
Tenn. Code Ann. § 29-26-118 (2012).
- 8 -
failed to provide enough information about a medical procedure must comply with the Act.
See White, 469 S.W.3d at 526. 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.
The Plaintiffs cite Lacy v. Mitchell, 541 S.W.3d 55 (Tenn. Ct. App. 2016), to support
their argument. In Lacy, the plaintiff alleged two injuries. The first occurred when the
defendant chiropractor “jumped on her back” during treatment while the plaintiff was lying
on the chiropractic table. Id. at 60. The second injury occurred when the defendant
chiropractor was walking out the door and hit the plaintiff on the back with a medical
folder. Id. at 61. The Lacy court held that the Act applied to the first injury because it
occurred while the plaintiff was receiving treatment. Id. at 60. But because the complaint
alleged that the second injury occurred as the chiropractor was walking out the door, the
Court of Appeals decided it was reasonable to infer that this incident happened after the
chiropractor had ended the treatment session and was leaving the exam room. Thus, the
Court of Appeals held the Act did not apply to the second injury.11 Id. at 61. Lacy, however,
is not on point. Here, the Defendants’ misrepresentations were made during the
doctor-patient informed consent discussion—an important and essential part of the health
care service. The Court of Appeals failed to recognize that the informed consent discussion
was part of the Defendants’ provision of health care services.
The Court of Appeals also erred by relying on Franks v. Sykes, 600 S.W.3d 908
(Tenn. 2020). Cooper, 2020 WL 6748795, at *7, *9. In Franks, this Court held that a
patient could bring a claim against a health care provider under the Tennessee Consumer
Protection Act for “an injury caused by [the] health care provider’s business practices––
including, but not limited to, deceptive practices in advertising, billing, or collections.”
Franks, 600 S.W.3d at 914. The plaintiffs in Franks had been injured in car accidents and
were treated at local hospitals. Id. at 910. The hospitals did not file claims with the
plaintiffs’ health insurance companies, which would have reduced the hospitals’ charges
to the discounted amounts they had contractually agreed to charge the insurance
companies. Id. The hospitals instead filed liens for the full, undiscounted hospital bills
against the plaintiffs’ potential tort claims arising from the car accidents.12 Id. The plaintiffs
sued the hospitals, alleging that the filing of these liens was an unlawful business practice
under the Tennessee Consumer Protection Act. Id. The plaintiffs’ claims were not health
care liability claims because they alleged neither that the hospitals failed to provide proper
11 In deciding the certified issue in this interlocutory appeal, we need not address whether the Act
applies to both health care liability claims and non-health care liability claims asserted in one lawsuit.
12 Under the Hospital Lien Act, a hospital “shall have a lien for all reasonable and necessary charges
for hospital care . . . upon any and all causes of action . . . accruing to the person to whom such care . . .
was furnished . . . on account of illness or injuries giving rise to such causes of action . . . and which
necessitated such hospital care.” Tenn. Code Ann. § 29-22-101(a) (2012).
- 9 -
medical treatment nor that the plaintiffs suffered any injuries from the medical treatment
they received. Id. at 915.
Unlike the plaintiffs in Franks, the Plaintiffs here alleged that the surgery caused
Ms. Cooper to sustain physical injuries and other damages: “the surgical procedure was
unnecessarily painful, . . . it was done in a barbaric fashion in unsterile conditions and . . .
it has left [Ms. Cooper] disfigured and with grotesque and painful bacterial infections.”
(Emphasis added). The Plaintiffs also alleged that Ms. Cooper “sustained permanent
physical disfigurement, pain and suffering, loss of enjoyment of life, lost income, [and]
strange bacterial infections from the procedure.” (Emphasis added). Thus, it was not the
Defendants’ false statements that caused Ms. Cooper’s injuries, but the unsuccessful
surgery performed by Dr. Mandy.
Finally, the Plaintiffs contend that compliance with the Act is not necessary because
their medical battery claim requires no expert testimony. Although a medical battery claim
may not require expert proof,
13 section 29-26-101(a)(1)’s definition of a “health care
liability action” contains no exemption for cases not requiring expert testimony.
14 We
cannot narrow the scope of the Act by adding exclusionary language.
Outcome: We hold that the Health Care Liability Act, section 29-26-101, broadly defines a
“health care liability action” to include claims alleging that a health care provider caused an injury related to the provision of health care services, regardless of the theory of liability.
Based on the allegations in the complaint, the Plaintiffs’ medical battery and intentional misrepresentation claims fall within the scope of the Act. We reverse the judgments of the Court of Appeals and the trial court, and we remand the case to the trial court for further proceedings consistent with this opinion. We tax the costs of this appeal to Donna Cooper and Michael Cooper, for which execution may issue if necessary.
Plaintiff's Experts:
Defendant's Experts:
Comments: