KNOXVILLE, Tenn. (Legal Newsline) – It’s tough news for a Tennessee couple who tried suing a plastic surgeon who ended up not being certified and allegedly delivered a “barbaric” procedure.
The Tennessee Supreme Court on Jan. 20 overturned two lower court decisions that said Donna and Michael Cooper did not have to follow the requirements of filing a medical malpractice lawsuit because their claims against Dr. Mason Mandy were not subject to them.
They alleged medical battery and intentional misrepresentation, but the Supreme Court found those claims amount to “health care liability action(s)” and the couple needed to have given Mandy pre-suit notice, as stipulated in the Health Care Liability Act.
“We hold that the (HCLA) broadly defines ‘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,” Justice Sharon Lee wrote.
The decision reverses those made by Williamson County Judge James Martin and the Court of Appeals.
Donna Cooper scheduled a breast-reduction surgery with Mandy after he told Cooper he was a board-certified plastic surgeon who had performed that kind of procedure many times through the years. Another employee at the practice, NuBody Concepts, backed his story.
But Mandy was not board-certified as a specialist in any field. The resulting surgery in October 2014 was performed in a “barbaric fashion in unsterile conditions,” the plaintiffs said, and left Donna disfigured and with a painful bacterial infection.
They sued but didn’t provide pre-suit notice to the defendants, as is required by the HCLA and many other states’ medical malpractice litigation laws.
The defendants moved to dismiss the Coopers’ case, and the Coopers admitted they failed to file the pre-suit notice. They said it didn’t matter because their suit was based on intentional misrepresentations made to them before any health care services took place.
“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,’” Lee wrote.
“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.”