The law of cow bones and bungees

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Opinion Zone,David Horrigan

When you buy a product or service, how much information should the seller disclose to you?  This week’s Case of the Week examines that issue in a case involving breast implants, bungee cords, a surgeon’s eyesight, and the jurisprudence of cow bone implantsnot necessarily in that order.

Manmade Chassis

Denise Dalien decided she wanted to augment the chassis God gave her, so she consulted plastic surgeon Stanley Jackson of Puyallup, Wash. Dr. Jackson performed breast augmentation on Ms. Dalien in 2000, using saline implants.

After a diet and exercise regimen caused her to lose weight, Ms. Dalien noticed some indentation and rippling on what was once her soft and supple upper left bosom.

No problem. Dr. Jackson went in again, removed the saline implants, and replaced them with gel implants.

Turns out there was a problem.  Ms. Dalien was not happy with her new gel bosoms, so—under the surgical theory of “more is more”—Dr. Jackson performed additional revision procedures on Ms. Dalien during 2005 and 2006.

Blinding Bungee

Just before all this happened, and—importantly for our story—unbeknownst to Ms. Dalien, Dr. Jackson was having issues with a bungee cord.  Dr. Jackson went into mortal combat with the killer cord in July 1999.

The bungee cord won.

Dr. Jackson received surgery on his eye, and took over a month off from his practice.  In July 2006, Dr. Jackson reported additional changes in his vision.  He retired in October 2006 after unsuccessful surgery.

Citing her allegedly unsuccessful surgeries, Ms. Dalien sued the good doctor twice. In one suit, Ms. Dalien argued negligent medical malpractice in the botched boob job. 

In her second civil action, Ms. Dalien sued under Washington State’s Consumer Protection Act (CPA).  Ms. Dalien argued, among other things, that Dr. Jackson violated the law by failing to disclose his eye injury.

Cow Bone Law

Dr. Jackson argued that the nondisclosure of his eye condition did not occur in “trade or commerce” and that any alleged professional malpractice or negligence was exempt from the CPA.

Ms. Dalien countered that the nondisclosure of the eye condition was, in fact, done in trade or commerce because Dr. Jackson solicited and retained patients by failing to disclose this condition.

In siding with Dr. Jackson, Washington State’s Court of Appeals cited the Evergreen State’s jurisprudence on cow bone disclosure and the case of Michel v. Mosquera-Lacy.

Mystie Michel sought treatment from Lucy Mosquera-Lacy, a periodontist employed by Bright Now! Dental, Inc., and the doctor said Ms. Michel needed a bone graft.

When completing her pre-procedure paperwork, Ms. Michel was given the choice of human bone, cow bone, or synthetic bone for her graft. Stating she “could not fathom the thought of having animal parts in her body,” Ms. Michel declined the opportunity to get authentic cow bone.

Well, unfortunately for Ms. Michel, supplies were running low in the dental office that day.

When Dr. Mosquera-Lacy ran out of human bone, she finished the job with cow bone.

Although the dentist claimed she merely finished up with cow bone—and that cow constituted no more than 10 percent of the graft, Ms. Michel said she now had a McImplant.

Ms. Michel countered that Dr. Mosquera-Lacy had “implanted” a cow bone in her mouth.

Whatever damages or urges to graze on her front lawn Ms. Michel may have experienced, her case wasn’t actionable under the Consumer Protection Act, the Washington Supreme Court held, because the use of cow bone was not an entrepreneurial activity in trade or commerce.

“Michael failed to show that Dr. Mosquera-Lacy's use of cow bone is entrepreneurial. It does not relate to billing or obtaining and retaining patients. It simply relates to Dr. Mosquera-Lacy's judgment and treatment of a patient. There is no evidence that cow bone was used to increase profits or the number of patients. When the supply of human bone ran out during the procedure, Dr. Mosquera-Lacy used her judgment and skills as a periodontist to finish the procedure. This is not actionable under the CPA.”

Bovine Bones and Bungees

Following the Washington Supreme Court’s holding in Michael, the Washington Court of Appeals held in Dalien v. Jackson that Dr. Jackson’s nondisclosure of his eye condition was also an activity that fell outside the scope of Washington’s Consumer Protection Act. Thus, the court declined to certify her class action, and it affirmed a trial court's dismissal of her case.

“Like in Michael, Dalien has failed to show that Dr. Jackson's nondisclosure of his eye injury is entrepreneurial. Dr. Jackson's nondisclosure does not relate to Dr. Jackson's billing or obtaining and retaining patients. Dalien has presented no evidence that Dr. Jackson represented that he had better vision than his competitors or somehow relied on his vision to promote his business,” Judge Russell Hartman wrote for the court.

However, the court didn’t say Ms. Dalien didn’t have a case—just that she didn’t have a case under the CPA.  Referencing her other suit, the court said, “To the extent that Dr. Jackson's eye injury may have affected his ability to examine, diagnose, treat, or care for his patients, that question is actionable under the negligence theory, which Dalien is pursuing in her original lawsuit.”

The lesson of this week’s Case of the Week?  If you want to sue under Washington’s Consumer Protection Act, make sure they advertise their excellent vision allows them to see your head before they implant a cow bone in it.

David Horrigan is a Washington, DC, attorney, editorial director at courtweek.com, and former staff reporter and assistant editor at The National Law Journal.  His articles have appeared also in Law Technology News, The American Lawyer, The New York Law Journal, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail: dhorrigan@courtweek.com

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