Caveat when you represent you are 'board certified'.

CASE ON POINT: Knepper v. Brown, (07/05/2007) P.2d -OR

CASE FACTS: Dr. Timothy Brown was a physician who advertised in the "Surgery--Plastic & Reconstructive" section of the Yellow Pages. His advertisement stated that he was "board certified." Believing that Dr. Brown was board certified as a plastic surgeon, M.M. Knepper, who was considering having liposuction performed, added Dr. Brown to her list of possible surgeons she might have perform surgery on her. In September 1997, Knepper attended a Women's Show that included informational booths oil consumer goods and services, including liposuction. Knepper saw Dr. Brown's booth and recognized his name from the list of surgeons she had compiled from the Yellow Pages. Knepper had a conversation with Dr. Brown's office manager, who was staffing the booth, and was told that Dr. Brown was a board-certified plastic surgeon. Two months later when Knepper went to Dr. Brown's office, she was told by Dr. Brown himself that he was a board-certified plastic surgeon. Ultimately, Dr. Brown performed surgery on Knepper in 1997. Problems developed immediately after surgery, and Dr. Brown attempted two further surgeries to repair the damage. The surgeries left Knepper with what one expert witness described as an "uncorrectable disaster." Dr. Brown was not a board-certified plastic surgeon. He was certified by the American Board of Dermatology and was board certified in clinical and anatomical pathology. However, he did not have board certification in any surgical specialty. In fact, the total extent of his training included a rotation through plastic surgery during his residency and approximately 18 days of informal training in liposuction. Knepper brought suit against Dr. Brown, his professional group, the American Academy of Cosmetic Surgery, and the American Society of Lipo-Suction, Inc. She also sued Dex Media, Inc., alleging that Dex published Dr. Brown's advertisement with the knowledge that he was not board certified in plastic surgery. Steve Mueller, a Dex advertising consultant, helped Dr. "Brown's assistant, Sara Newman, develop a "mock up" of the "board certified" advertisement. Newman told Mueller the Dr. Grown was interested in attracting more cosmetic patients, particularly liposuction candidates. Mueller suggested that the" plastic and reconstructive surgery" section was the best place to advertise and that the ad should say that Dr. Brown was certified. Newman, however, suggested to Mueller that the "board certified" statement would be misleading under the "plastic and reconstructive surgery" heading because Dr. Brown was "not a plastic surgeon, board certified or otherwise [.]" Mueller, however, "pushed toward just saying "board certified in the ad because patients were expecting a plastic surgeon to do these techniques." Ultimately, the Yellow Pages advertisement represented that Dr. Brown was "board certified," without further qualification. After a jury trial, a jury returned a verdict for the patient for more than $1.5 Million Dollars. The trial judge reduced the verdict by $175,000, the amount Dr. Brown paid the patient for settlement of her claim against him. Dex appealed.

COURT'S OPINION: The Court of Appeals of Oregon affirmed the judgment of the lower court.

LEGAL COMMENTARY: The court addressed Dex's arguments. The court noted that Dex contended that the overriding issue was whether Dr. Brown's negligent performance of a liposuction on his patient was a reasonably foreseeable consequence of the ad Dex published in the Yellow Pages. The court noted that the patient offered a number of arguments in response, including that foresee-ability is not even an element of a fraud claim. Since her claims were for fraud and conspiracy to commit fraud, the court determined that it need not resolve that question, because, assuming that foreseeability of harm is an element of actionable fraud, as Dex asserted, the damages suffered by Knepper were a foreseeable consequence of Dex's's misrepresentation. The court was careful to take note of the fact that one of Dr. Brown's key employees expressed her concern to Dex that Dr. Brown was "not a plastic surgeon, board certified or otherwise[.]" The court found that alone was persuasive evidence that certain risks of misrepresenting Dr. Brown's qualifications were not only foreseeable; they were foreseen. The court concluded that a jury could infer, based on that evidence, that a reasonable person would be able to recognize the potential for malpractice that could result from misrepresentations regarding the credentials of a surgeon. However, in this case, there was additional evidence that linked the risk of malpractice to "Dr. "Brown's lack of board certification in plastic surgery." A board certified plastic surgeon would have received four years of medical school education, a first year of residency, four or five years of general surgery residency, and two more years of plastic surgery training. After that, written and oral examinations and a recommendation from the American "Board of Plastic Surgery" are required before one can become "board certified,"

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presentd seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognitioin in Martindale-Hubbells's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.