1. Impact
1.1. Hudsucker v. Fustok, 238 S.W. 3d 421 (2007)
1.1.1. Patient's law fraud and battery claims were death care liability claims subject to expert report requirements
1.2. Gomez v. Pasadena Health Care Management, inc, 246 S.W. 3d 306 (2008)
1.2.1. Dissolution and Survival. Application of survival statute to minor's medical negligence claim did not violate open courts provision of State Constitution
2. Influence
2.1. In pre-op several health professionals review consent for surgery (correct body part, identifying items, reason for surgery)
2.2. Require physicians to participate in yearly sensitivity training to educate on how to deal with patient expectations of outcomes
3. Importance
3.1. Health systems to educate providers and health professionals on importance of obtaining informed consent and verbal explanation of what was signed
4. Issue before the Court
4.1. Whether there is sufficient evidence to support Medical Malpractice alleging breach of express warranty and lack of informed consent
5. Facts
5.1. Parties
5.1.1. Joyceline Mills (Appellant)
5.1.2. Dr. John Pate, MD (Appellee)
5.2. What happened
5.2.1. 1999-Mills hears radio ad and makes liposuction consult appointment with Dr. Pate
5.2.1.1. 9/29/99--Mills has first consult with Pate for liposuction procedure. Removal of fat bulges.
5.2.1.1.1. Mills states that Pate told her she would look "beautiful"
5.2.1.1.2. Mills interprets this as smooth skin and no "pooches"
5.2.1.1.3. Pate staff shows Mills post surgery photos of other patients with no skin irregularities or "saddlebags"
5.2.1.2. 9/29/99--Pate exam notes
5.2.1.2.1. Explanation to patient of procedure, risks, and complications from surgery and anesthesia
5.2.1.2.2. Explanation to patient of long term results that may require additional surgery (abdomen or medial thigh lift)
5.2.1.2.3. Explanation to patient that irregularities may exist after surgery
5.2.2. 11/17/1999--Mills signs informed consent form and permission to perform surgery form
5.2.2.1. Listed possible side effects after surgery
5.2.2.2. Warned of serious complications
5.2.2.3. Mentioned that some patients (5%) require touch up after 6 mo
5.2.2.3.1. Pate will not charge if conducted at surgical center. Charge from surgical center and possibly anesthesia
5.2.2.4. Does not indicate skin condition/quality or skin abnormalities
5.2.3. 12/2/1999--Pate performs first liposuction procedure on Mills (abdomen, hips, flanks, and thighs)
5.2.3.1. Mills stated she followed post-op instructions and expected swelling
5.2.3.2. Skin irregularities 3-4 months after surgery
5.2.3.2.1. Pate and staff said it was due to swelling
5.2.4. Within 6 months of surgery Mills unhappy with surgery results
5.2.4.1. Mills complains to Pate about skin irregularities
5.2.4.2. Pate suggests second surgery to fix by doing thigh lift
5.2.4.2.1. Thigh lift procedure included in consent/agreement for surgery but not explicitly verbalized to Mills by Pate
5.2.5. 1/9/2001--Mills signs informed consent form for second surgery (abdominal bilateral hip flank liposuction and thigh lift)
5.2.6. 1/16/2001--Pate performs second surgery; Mills signs consent form
5.2.6.1. Form contains specific language regarding "dissatisfaction" with results
5.2.6.1.1. Pate and staff did not disclose information to Mills
5.2.7. Post second surgery--Mills unhappy with results
5.2.7.1. Mills brought up dissatisfaction to Pate and was told it was swelling for several months
5.2.7.2. Mills still had bagging and sagging after procedure
5.2.7.2.1. Pate told Mills she would have smooth skin, no ripples, bulges, and bags
5.2.8. 8/30/2001--Mills has last appointment with Dr. Pate
5.2.9. September 2001--Mills has appointment with Dr. Miller (plastic surgeon)
5.2.9.1. Dr. Miller believes it will take at least 3 surgeries to correct previous work
5.2.9.2. Dr. Miller refers Mills to Dr. Gilliland
5.2.9.2.1. Houston physician specializing in body contouring
5.2.10. October 2001--Mills has appointment with Dr. Gilliland
5.2.10.1. Dr. Gilliland recommends body lift to correct liposuction abnormalities
5.2.10.1.1. Body lift is a more extensive procedure
5.2.10.2. Dr. Gilliland states that Dr. Pate's care and treatment for Mills was inadequate
5.2.10.3. Dr. Gilliand tells Mills that post-op instructions will be more extensive than what Dr. Pate required
5.2.11. Dr. Gilliland performs abdominoplasty and body lift (included redo thigh lift)
5.2.11.1. Mills satisfied with Gilliand work
5.2.11.1.1. No ripples/rolls, thighs slimmed, abdomen flat and smooth
5.2.12. 1/23/2002--Mills notifies Dr. Pate of intent to sue under Medical Liability and Insurance Improvement Act for medical malpractice
5.3. Procedural History
5.3.1. Mills filed medical malpractice lawsuit alleging negligence, lack of informed consent, and breach of express warranty
5.3.2. Judge granted Pate summary judgement
5.3.3. Mills appealed verdict
6. Rule of Law
6.1. Breach of express warranty
6.1.1. Appellate court to hear whether a physician can be liable if promises made to yield specific surgical results are not based on a breach of the physician accepted standards of care
6.1.1.1. Physician that promises specific results and does not meet standard may be subject to breach of express warranty
6.2. Informed Consent
6.2.1. Appellate court to hear Mills suggestion that Pate was negligent in not disclosing surgery risks that would have prevented Mills from having surgery
7. Analysis
7.1. Lack of informed consent
7.1.1. Mils
7.1.1.1. Claims that Pate failed to disclose risks associated with second liposuction surgery
7.1.1.1.1. If Mills knew risks she would not have had second surgery
7.1.1.2. TEX.REV.CIV.STAT. art. 4590i section 6.02--healthcare liability claims based on failure of physician to disclose risks involved in medical care or surgical procedure rendered by physician, recovery obtained under theory of negligence
7.1.2. Pate
7.1.2.1. Claims Mills no evidence motion. Suggests Mills lacks evidence to all informed consent elements
7.1.2.1.1. Mills signed separate consent forms that adequately disclose risks and expectations associated with surgery
7.2. Breach of express warranty
7.2.1. Mills
7.2.1.1. Claims Pate explicitly described how Mills would look after liposuction procedure
7.2.1.1.1. No skin irregularities, sagging, bulges
7.2.1.2. Claims Pate indicated Mills was good candidate for surgery
7.2.1.3. Sorokolit--if physician promises particular results, they may be held liable for breach of express warranty
7.2.2. Pate
7.2.2.1. Breach of warranty attempt to recast negligence claim as breach of contract claim
7.2.2.2. No evidence to support elements of claim
8. Conclusion
8.1. Informed Consent
8.1.1. Appellate court agrees with initial trial court decision that there is no evidence Dr. Pate failed to obtain Mills informed consent for second surgery
8.2. Breach of express warranty
8.2.1. Appellate court reverses initial trial court decision regarding Pate breach of warranty