Kelly on Malpractice

In Proctor v. Chattanooga Orthopedic Group, 2008 WL 2388642 (Tenn.Ct.App.), Dr. McElheney performed a right rotator cuff repair surgery and later a left shoulder arthroscopic debridement on Mr. Proctor. Thereafter, Dr. McElheney and Mr. Proctor discussed shoulder replacement surgery, and Mr. Proctor agreed to have Dr. McElheney perform the recommended procedure. However, Dr. McElheney disassociated from Defendants prior to this surgery.
Dr. Odom, who was associated with Defendants, performed shoulder surgery on Mr. Proctor. Plaintiffs allege that Dr. Odom performed a hemi-arthroplasty on Mr. Proctor, rather than a total shoulder arthroplasty as recommended by Dr. McElheney. Mr. Proctor’s insurance company was billed for a total shoulder arthroplasty rather than the less expensive hemi-arthroplasty actually performed.

Plaintiffs sued Defendants alleging that they had deceived Mr. Proctor regarding Dr. McElheney’s availability to perform the surgery in order for Defendants to keep his business and the income from Mr. Proctor’s surgery, and further had deceived Mr. Proctor regarding the extent of the surgery actually performed. The Trial Court entered an order finding that the gravamen of Plaintiffs’ claim sounded in alleged deceptive business practices under the Tennessee Consumer Protection Act of 1977, so the complaint was dismissed for failure to state a claim upon which relief could be granted. Plaintiffs appealed.

Plaintiffs raised one issue on appeal: whether the Trial Court erred in holding that the business aspects of Defendants’ medical practice are not subject to the provisions of the Tennessee Consumer Protection Act at TENN.CODE ANN. § 47-18-101 et seq., and dismissing Plaintiffs’ complaint. Defendants argued on appeal that the Tennessee Consumer Protection Act does not apply to the provision of medical services. Defendants cited Constant v. Wyeth, 352 F.Supp.2d 847 (M.D. Tenn.2003). The Constant Court found that the plaintiff had alleged a claim for medical malpractice and then alleged simply that the doctor had violated the Tennessee Consumer Protection Act. The Constant Court then stated that medical malpractice claims may not be recast as consumer protection act claims.” Id. at 854.

The Court of Appeals agreed that medical malpractice claims may not be recast as Tennessee Consumer Protection Act claims. These two types of claims are wholly separate and distinct claims governed by separate statutory schemes. TENN.CODE ANN. § 29-26-115 et seq.; TENN.CODE ANN. § 47-18-101 et seq. Here, the trial court found that the gravamen of Plaintiffs’ claim sounded in alleged deceptive business practices under the Tennessee Consumer Protection Act, not in medical malpractice. Plaintiffs did not allege that Defendants had deviated from the acceptable standard of professional practice. Plaintiffs instead alleged that Defendants had misled them in order to keep Mr. Proctor’s business, and that Defendants charged for a more expensive procedure than the one actually performed. The Court of Appeals held that Plaintiffs’ complaint stated a claim for alleged deceptive business practices under the Tennessee Consumer Protection Act, and not a claim for medical malpractice, so the trial court was reversed.

This case is probably confined to its facts. However, there is the possibility that fraud may succeed where malpractice fails.

In Proctor v. Chattanooga Orthopedic Group, 2008 WL 2388642 (Tenn.Ct.App.), Dr. McElheney performed a right rotator cuff repair surgery and later a left shoulder arthroscopic debridement on Mr. Proctor. Thereafter, Dr. McElheney and Mr. Proctor discussed shoulder replacement surgery, and Mr. Proctor agreed to have Dr. McElheney perform the recommended procedure. However, Dr. McElheney disassociated from Defendants prior to this surgery. Dr. Odom, who was associated with Defendants, performed shoulder surgery on Mr. Proctor. Plaintiffs allege that Dr. Odom performed a hemi-arthroplasty on Mr. Proctor, rather than a total shoulder arthroplasty as recommended by Dr. McElheney. Mr. Proctor’s insurance company was billed for a total shoulder arthroplasty rather than the less expensive hemi-arthroplasty actually performed.

Plaintiffs sued Defendants alleging that they had deceived Mr. Proctor regarding Dr. McElheney’s availability to perform the surgery in order for Defendants to keep his business and the income from Mr. Proctor’s surgery, and further had deceived Mr. Proctor regarding the extent of the surgery actually performed. The Trial Court entered an order finding that the gravamen of Plaintiffs’ claim sounded in alleged deceptive business practices under the Tennessee Consumer Protection Act of 1977, so the complaint was dismissed for failure to state a claim upon which relief could be granted. Plaintiffs appealed.

Plaintiffs raised one issue on appeal: whether the Trial Court erred in holding that the business aspects of Defendants’ medical practice are not subject to the provisions of the Tennessee Consumer Protection Act at TENN.CODE ANN. § 47-18-101 et seq., and dismissing Plaintiffs’ complaint. Defendants argued on appeal that the Tennessee Consumer Protection Act does not apply to the provision of medical services. Defendants cited Constant v. Wyeth, 352 F.Supp.2d 847 (M.D. Tenn.2003). The Constant Court found that the plaintiff had alleged a claim for medical malpractice and then alleged simply that the doctor had violated the Tennessee Consumer Protection Act. The Constant Court then stated that medical malpractice claims may not be recast as consumer protection act claims.”

The Court of Appeals agreed that medical malpractice claims may not be recast as Tennessee Consumer Protection Act claims. These two types of claims are wholly separate and distinct claims governed by separate statutory schemes. TENN.CODE ANN. § 29-26-115 et seq.; TENN.CODE ANN. § 47-18-101 et seq. Here, the trial court found that the gravamen of Plaintiffs’ claim sounded in alleged deceptive business practices under the Tennessee Consumer Protection Act, not in medical malpractice. Plaintiffs did not allege that Defendants had deviated from the acceptable standard of professional practice. Plaintiffs instead alleged that Defendants had misled them in order to keep Mr. Proctor’s business, and that Defendants charged for a more expensive procedure than the one actually performed. The Court of Appeals held that Plaintiffs’ complaint stated a claim for alleged deceptive business practices under the Tennessee Consumer Protection Act, and not a claim for medical malpractice, so the trial court was reversed.

This case is probably confined to its facts. However, there is the possibility that fraud may succeed where malpractice fails.