Donna Cooper et al. v. Dr. Mason Wesley Mandy et al.

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.

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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.

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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.

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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.

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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.

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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).

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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).

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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.

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.