Cooper v. NuBody Concepts, et al.

Eric Miles & Briggs Dixson

The Tennessee Supreme Court, on January 20, 2022, issued an opinion confirming that a plaintiff’s claims for intentional misrepresentation and medical battery were subject to the pre-suit notice and filing requirements of Tenn. Code Ann. Section 29-26-121. This case represents a significant victory for health care liability defendants. Consistent with prior Tennessee case law, the Tennessee Supreme Court’s latest ruling confirms that nearly every claim for injury arising in the health care setting and involving a health care provider will be subject to the pre-suit notice and filing requirements set out in Tenn. Code Ann. Section 29-26-121.

Plaintiff alleged that the physician-Defendant intentionally misrepresented himself as being board-certified in plastic surgery to induce her to consent to a breast reduction surgery. Plaintiff, dissatisfied with the results of her breast reduction and claiming significant pain and suffering, filed suit against the physician and his practice alleging intentional misrepresentation and medical battery. Plaintiff claimed she would not have consented to the breast reduction if there had not been an intentional misrepresentation of the physician’s credentials. In the trial court, Defendants filed a Motion to Dismiss Plaintiff’s claims due to her failure to provide pre-suit notice for health care liability claims, as required by Tenn. Code Ann. Section 29-26-121. Plaintiff admitted that she did not provide any pre-suit notice but alleged that her claims fell outside the purview of Section 29-26-121. Specifically, Plaintiff claimed that she never gave informed consent for the breast reduction surgery given the purported fraudulent misrepresentation, and that the misrepresentations were commercial in nature as they allegedly occurred before the establishment of a patient-provider relationship between Plaintiff and Defendant. The trial court and Tennessee Court of Appeals agreed with Plaintiff’s position. However, the Tennessee Supreme Court reversed the Tennessee Court of Appeals, and ultimately held that Plaintiff asserted health care liability claims subject to the requirements of Tenn. Code Ann. Section 29-26-121. In so holding, the Court focused on the nature of the injury alleged by Plaintiff. In this case, Plaintiff’s claimed injuries were all tied to the allegedly improperly performed breast reduction by the physician-Defendant. This was sufficient to meet the broad definition of “health care liability action” as set out in Tenn. Code Ann. Section 29-26-101(a)(1), and triggered the pre-suit notice and filing requirements that Plaintiff admitted she did not follow.

Eric Miles and Briggs Dixson briefed the case, and Mr. Miles presented the oral argument on behalf of the physician-Defendant and his practice before the Tennessee Supreme Court.