Wash. court dismisses lawsuit over cow-bone graft

A woman who had cow bone grafted into her mouth against her wishes can't sue a dental office under the state's Consumer Protection Act, the state Supreme Court ruled Thursday.

The patient, Mystie Michael of Olympia, sued after getting a bone graft that contained some cow parts. Before the surgery, Michael asked that only human bone be used for the graft "because she could not fathom the thought of having animal parts in her body," the court said.

Michael's periodontist, Dr. Betsy Mosquera-Lacy, started the graft with a human bone as requested, but ran out during the surgery. Mosquera-Lacy completed the graft with cow bone, which is also used in dental grafts.

Michael found out about the cow-bone substitution while recovering in the hospital, where she was rushed after the surgery because of an allergic reaction to drugs.

She sued Mosquera-Lacy and Bright Now Dental Inc. for negligence, medical battery and violations of the Consumer Protection Act. The consumer protection claims were thrown out, and Michael settled the other claims against Mosquera-Lacy.

Michael then dismissed her other claims against the dental office to pursue the Consumer Protection Act case, but the Supreme Court unanimously rejected that lawsuit Thursday.

The court's decision said Michael's case didn't meet the law's tests for unfair business practices. Dispute over the medical decision in Michael's bone graft isn't covered under the consumer protection law because it's a question of negligence, not of business practices, the court said.

The doctor "was practicing medicine by treating and caring for Michael, not soliciting patients by advertising the use of human bone for bone grafting procedures. She was not in the business of selling cow bone or human bone," Justice Richard Sanders wrote for the court.

Michael also failed to show that her case serves the broader public interest, the court said.

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The case is No. 80665-9, Michael v. Mosquera-Lacy and Bright Now Dental Inc.

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