Cooper v. Mandy
| Decision Date | 17 November 2020 |
| Docket Number | No. M2019-01748-COA-R9-CV,M2019-01748-COA-R9-CV |
| Parties | DONNA COOPER ET AL. v. DR. MASON WESLEY MANDY ET AL. |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Williamson County
The principal issue in this interlocutory appeal is whether intentional misrepresentations made by health care providers to induce a prospective patient to engage the health care providers' services are within the purview of the Tennessee Health Care Liability Act ("the Act"), Tenn. Code Ann. § 29-26-101 to -122. The complaint filed by the patient, Donna Cooper ("Mrs. Cooper"), and her husband alleges that Dr. Mason Wesley Mandy ("Dr. Mandy") and Rachelle Norris ("Ms. Norris") with NuBody Concepts, LLC, intentionally misrepresented that Dr. Mandy was a board-certified plastic surgeon and, based on their misrepresentation, Mrs. Cooper gave Dr. Mandy her consent to perform the surgery. Following "painful, disastrous results," the plaintiffs asserted four claims: (1) intentional misrepresentation; (2) medical battery; (3) civil conspiracy; and (4) loss of consortium. Defendants filed a Tenn. R. Civ. P. 12 motion to dismiss for failure to comply with the pre-suit notice and filing requirements of the Act, specifically Tenn. Code Ann. §§ 29-26-121 and -122. The trial court denied the motion to dismiss, finding the Act did not apply. This interlocutory appeal followed. We hold that Mrs. Cooper is entitled to proceed on her claims of intentional misrepresentation and civil conspiracy because the alleged misrepresentations were inducements made prior to the existence of a patient-physician relationship; thus, the claims were not related to "the provision of . . . health care services." See Tenn. Code Ann. § 29-26-101(a)(1). We also affirm its ruling on the medical battery claim because a physician's misrepresentation of a material fact, if proven, may vitiate consent, and, without consent, the very act of touching Mrs. Cooper may constitute an unlawful and offensive act that is not related to the provision of health care services. See Holt v. Alexander, No. W2003-02541-COA-R3-CV, 2005 WL 94370, at *6 (Tenn. Ct. App. Jan. 13, 2005). Further, we affirm the trial court's ruling on Mr. Cooper's claim for loss of consortium because, as the trial court held, his claims relate to Dr. Mandy's and Ms. Norris's false representations of Dr. Mandy's credentials, not to a provision of, or a failure to provide, a health care service. Accordingly, we affirm the trial court in all respects and remand for further proceedings consistent with this opinion.
Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court
Affirmed and Remanded
RICHARD H. DINKINS, J., not participating.
J. Eric Miles and Matthew Buchbinder, Nashville, Tennessee, for the appellants, Mason Wesley Mandy, M.D., and Middle Tennessee Surgical Services, PLLC.
R. Dale Bay, Paul Jordan Scott, and Kaycee L. Weeter, Nashville, Tennessee, for the appellant, NuBody Concepts, LLC.
G. Kline Preston, IV, Nashville, Tennessee, for the appellees, Donna Cooper and Michael Cooper.
Mrs. Cooper and her husband, Michael Cooper ("Mr. Cooper"), (collectively, "Plaintiffs") filed two complaints against Dr. Mandy, Nubody Concepts, LLC, ("NuBody"), and Middle Tennessee Surgical Services, PLLC, ("MTSS")1 (collectively, "Defendants"). Plaintiffs voluntarily dismissed the first complaint, filed on September 30, 2015, after Defendants filed Tenn. R. Civ. P. 12 motions to dismiss for failure to comply with the pre-suit notice and filing requirements of the Act. See Tenn. Code Ann. § 29-26-121 and -122. Plaintiffs commenced this action by timely filing their second complaint on April 18, 2018, which was substantially similar to the first. Because this appeal arises from a decision on a Rule 12.02 and 12.03 motion to dismiss, we derive the facts from the second complaint, which was the pleading at issue in this appeal.
Acting upon advertising and marketing information disseminated by NuBody, Mrs. Cooper visited the offices of NuBody in Brentwood, Tennessee on September 17, 2014, where she met with a NuBody representative and Dr. Mandy to discuss possible breast reduction surgery.2 Mrs. Cooper alleges that Dr. Mandy and Ms. Norris, a Nubody employee, told her Dr. Mandy was a board-certified plastic surgeon with years of experience in performing breast reduction surgeries. Mrs. Cooper further alleges that she relied on these representations when entering into the agreement on September 19, 2014, to have Dr. Mandy perform her breast reduction surgery. Shortly thereafter, Mrs. Cooperremitted the agreed-upon fee of $4,000. Dr. Mandy performed the surgery on October 2, 2014, at MTSS.
The complaint alleges the procedure was "unnecessarily painful, that it was done in a barbaric fashion in unsterile conditions and that it has left her disfigured and with grotesque and painful bacterial infections."3 It states:
Defendants falsely represented that Defendant Dr. Wesley Mandy, was a board-certified plastic surgeon with years of experience who was experienced in performing the breast reduction procedure she had agreed to permit him to perform prior to entering into the agreement and prior to consenting to have the procedure. In fact, Dr. Mandy was not board-certified in any field at the time.
The complaint alleges it was not until after her surgery that Mrs. Cooper discovered Dr. Mandy had never been board certified in any field, and "had she known that Defendant, Dr. Wesley Mandy, was not a board-certified plastic surgeon she would not have consented to the breast reduction surgery." If not for Defendants' false representations, Mrs. Cooper claims she never would have entered into the contract for Dr. Mandy to perform the surgery.
Plaintiffs asserted claims for (1) intentional misrepresentation, (2) medical battery, (3) civil conspiracy, and (4) loss of consortium. Plaintiffs sought compensatory damages for each Plaintiff in an amount in excess of $500,000 as well as punitive damages in an amount in excess of $1,000,000. With regard to the medical battery claim, the complaint stated: "Defendants performed a surgical procedure on her without her effective consent which constitutes a medical battery." As for the civil conspiracy claim, the complaint stated: "Defendants worked together in concert through fraud and misrepresentation to jointly profit from the breast reduction procedure performed on Plaintiff, Donna Cooper."
Dr. Mandy and MTSS responded to the complaint by filing a joint motion to dismiss arguing that Plaintiffs failed to substantially comply with the following requirements of the Act: (1) provide a HIPPA-compliant medical records authorization with their pre-suit notice letter; (2) demonstrate compliance with Tenn. Code Ann. § 29-26-121 by including a statement in the complaint that Plaintiffs complied with Tenn. Code Ann. § 29-26-121(a); (3) attach a copy of the notice letter to the complaint; (4) file a certificate of mailing and affidavit as required; and (5) file a certificate of good faith with the complaint. Dr. Mandy and MTSS argued that the facts alleged in the complaint qualified as a health care liability action, and, as such, the court should dismiss Plaintiffs' claims in their entirety for failureto comply with the Act. Additionally, they argued Plaintiffs could not escape the requirements of the Act by framing their suit as claims for intentional misrepresentation, medical battery, civil conspiracy, and loss of consortium. Dr. Mandy and MTSS argued that the theory under which a plaintiff pursues a claim does not matter. This is because Tenn. Code Ann. § 29-26-101(a)(1) provides that, if a claim relates to a health care provider providing health care services, it is a health care liability claim "regardless of the theory of liability on which the action is based."
In addition to relying on the Act, Defendants argued that Plaintiffs' claims should be dismissed pursuant to Tennessee Rules of Civil Procedure 12.02 and 12.03 for failure to state a claim upon which relief can be granted. Specifically, Defendants contended that (1) Plaintiffs' medical battery claim must be dismissed because Mrs. Cooper consented to the breast reduction procedure, (2) fraud resulting in physical injury does not exist as a cause of action in Tennessee, and (3) there are no valid parent claims upon which to pursue Plaintiffs' derivative claims of civil conspiracy or loss of consortium. In sum, Defendants' motion to dismiss asked the trial court to determine whether Dr. Mandy's actions were related to "the provision of, or failure to provide, health care services." Tenn. Code Ann. § 29-26-101(a)(1).
In addressing the motion to dismiss, the trial court noted that the Act defined a health care liability action as "[1] any civil action . . . alleging that [2] a health care provider or providers [3] have caused an injury related to the provision of, or failure to provide, 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). The court found that the intentional misrepresentations made by Defendants did not fall within the definition of "care" as provided by Tenn. Code Ann. § 29-26-101(b). Relying on Lacy v. Mitchell, the trial court concluded that the Act was not designed to protect a health care provider when he or she misrepresented his or her credentials. 541 S.W.3d 55 (Tenn. Ct. App. 2016).
Specifically, the trial court said:
Similar to Mitchell, the Coopers' intentional misrepresentation claim occurred outside of Dr. Mandy's care of Ms. Cooper. In Mitchell, the allegation of slapping the Appellant with a folder occurred after a health care service had been rendered. Here, the misrepresentation occurred before the health care service was provided. Reasoning by...
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