Day on Torts - New Post: Doctor’s Alleged Misrepresentation of Credential’s Falls Outside of HCLA requirements.

Doctor’s Alleged Misrepresentation of Credential’s Falls Outside of HCLA requirements.

Posted: 10 Mar 2021 05:42 AM PST

Where plaintiff alleged that defendant doctor committed intentional misrepresentation and medical battery by stating that he was board-certified in plastic surgery when he was not, the Tennessee Court of Appeals affirmed the ruling that these claims were not governed by Tennessee’s HCLA. In Cooper v. Mandy, No. M2019-01748-COA-R9-CV (Tenn. Ct. App. Nov. 17, 2020), plaintiff saw advertisements for NuBody and went to their office in Brentwood for a consultation regarding surgical breast reduction. Plaintiff met with Ms. Norris, a NuBody representative, and defendant Dr. Mandy, at which time they told plaintiff that Dr. Mandy was board-certified in plastic surgery. Plaintiff alleged that she entered into an agreement to have the surgery in reliance on these statements, but that the subsequent surgery was not properly performed, leaving her “disfigured and with grotesque and painful bacterial infections.” Plaintiff later learned that Dr. Mandy was not board-certified in plastic surgery, and was actually not board-certified in any field at the time of her treatment.

Plaintiff filed this action against Dr. Mandy, NuBody, and Dr. Mandy’s employer, alleging claims of intentional misrepresentation, medical battery, civil conspiracy, and loss of consortium. Defendants moved to dismiss on the basis that the claims all fell within the HCLA, asserting that plaintiff’s failure to comply with the presuit notice and certificate of good faith requirements of the HCLA warranted dismissal. The trial court denied the motion to dismiss, holding that plaintiff’s claims were not governed by the HCLA, and the Court of Appeals affirmed.

The Court began its analysis by acknowledging that “it is no longer necessary to make nuanced distinctions between ordinary negligence and health care liability claims,” but by also pointing out that the HCLA does not “govern all claims that arise in a medical setting.” (internal citation omitted). Because it was undisputed that the defendants in this case were “health care providers,” the determinative issue regarding whether the HCLA applied here was “whether the injuries alleged in the complaint, and any reasonable inferences therefrom, relate to the provision of, or failure to provide, health care services.” (internal citation omitted). While defendants argued that plaintiff’s claimed injuries were caused by the surgery and thus subject to the HCLA, plaintiff maintained that her arguments “focus[ed] on the deceptive business practice as the alleged injury.” Considering these countervailing positions, the Court stated that it would look for guidance from a Supreme Court case where the business practices of a doctor were distinguished from his professional services to determine whether the TPLA or the HCLA applied. (citing Franks v. Sykes, 600 S.W.3d 908 (Tenn. 2020)). With this background in mind, the Court stated that it would approach “each claim separately to determine whether it alleges the health care provider was acting in a business or in a professional capacity.”

Beginning with the intentional misrepresentation claim, the Court noted that “[g]enerally stated, an intentional misrepresentation in a business setting, the purpose of which is to induce someone to enter into a contractual agreement for professional services, is easily distinguished from the rendering of healthcare services.” While there was no previous case directly on point, the Court noted that it had previously held that actions that occurred after the rendering of medical services was complete might not fall within the HCLA, so it was notable here that the misrepresentation “occurred before health care services were rendered.” (internal citation omitted). Quoting the trial court’s ruling that the HCLA “was not designed to

protect a health care provider when he or she misrepresents his or her credentials,” the Court pointed out that for the misrepresentation claim, “the injury complained of is the fraud perpetrated on plaintiffs, not the alleged, botched surgery.” Affirming the denial of dismissal of this claim, the Court explained:

Plaintiffs’ intentional misrepresentation claim relates to NuBody’s advertising and marketing representations and Dr. Mandy’s and Ms. Norris’s oral statements, all of which occurred prior to entering into the agreement for Defendants to render healthcare services. Thus, Defendants made the alleged misrepresentations while acting in a business capacity, not in a professional capacity. We decline to hold that the Act protects a health care provider when the provider acts in a business capacity, rather than in a professional capacity.

(internal citation omitted).

The Court next analyzed whether plaintiff’s medical battery claim was governed by the HCLA. Plaintiff asserted that the HCLA did not apply because her consent to the surgery was vitiated by defendants’ fraud, and that the surgery thus “constituted an unlawful, offensive touching.” Defendants, on the other hand, argued that this was really just an informed consent claim, which is expressly governed by the HCLA. The Court first focused on whether the claim at issue was one for medical battery or lack of informed consent. The trial court had reasoned that “a lack of informed consent claim typically occurs when a patient was aware that the procedure was going to be performed but the patient was unaware of the risk associated with the procedure,” but here there were no allegations that plaintiff was not told the risks associated with breast reduction surgery. (internal citation omitted). Instead, “the allegations solely relate to the consequences of the misrepresentation of Dr. Mandy’s credentials by Dr. Mandy and Ms. Norris.” The Court of Appeals compared the instant case to one in which a patient was wrongly told that his treating urologist had approved a surgical procedure, wherein the claim was ultimately ruled to be one for medical battery. (citing Holt v. Alexander, No. W2003-02541-COA-R3-CV, 2005 WL 94370 (Tenn. Ct. App. Jan. 13, 2005)). Based on this reasoning, the Court ruled that “Plaintiffs have stated a medical battery claim,” but also pointed out that this determination did not end the inquiry, as medical battery claims can also be governed by the HCLA.

The Court then moved forward to analyzing whether the medical battery claim “relates to the provision of or failure to provide health care services.” The Court reasoned:

[B]ecause the alleged fraud vitiated [plaintiff’s] consent, Defendants did not have consent to provide any health care services to [plaintiff]. As such, [plaintiff] did not give consent for Defendants to act as her health care providers at the time she sustained the alleged injury. …Because there was no consent from [plaintiff], we are not asked to consider whether, during the provision of health care services, Defendants exceeded the scope of consent or acted in a manner inconsistent with the plaintiff’s consent. Instead, the very act of touching [plaintiff], whether for the provision of health care services or for any other reason, resulted in a cause of action for medical battery. In reviewing each claim, we consider whether Plaintiffs alleged that Defendants were acting in

their business or professional capacity at the time of the alleged injury. By fraudulently inducing [plaintiff] to contract for the procedure Defendants were acting in their business capacity, not in their professional capacity. The alleged fraud vitiated Plaintiffs’ consent to being touched. As such, Defendants never received authority from [plaintiff] to act in their professional capacity. Therefore, the injury alleged does not relate to the provision of health care services by a health care professional.

Because the medical battery claim did not relate to the provision of health care services, the HCLA and its requirements did not apply.

Finally, the Court looked briefly at plaintiffs’ claims for civil conspiracy and loss of consortium. Because the civil conspiracy claim was based on the misrepresentation, which was not related to the provision of health care services, the civil conspiracy claim was not governed by the HCLA. The Court also agreed with the trial court that plaintiff’s complaint, which stated that plaintiff “is in constant pain and has been unable to be the companion to whom [her husband] is accustomed,” stated sufficient facts to support the loss of consortium claim.

Because plaintiffs’ claims all related to the alleged misrepresentations regarding defendant doctor’s credentials, which were made before the doctor-patient relationship was established and were related to defendants’ business practices, the ruling that the HCLA did not apply was affirmed, and the Court ruled that the trial court correctly denied defendants’ motion to dismiss.

This case is an important read for anyone wishing to assert a non-HCLA claim against a health care provider. While the Court of Appeals analyzed this case well, one should be wary in relying too heavily on an assumption that a claim against a doctor or medical practice will not be subject to the HCLA. Although these plaintiffs were successful in proceeding without complying with the HCLA’s requirements, it is safest to follow the pre-suit notice and certificate of good faith requirements when your claim falls within the medical context.

NOTE: This opinion was released 5.5 months after oral arguments.