1. Facts
1.1. Joyceline mills, appellant v. Dr. John Pate, M.D., appellee
1.2. Mrs. Mills decides to have liposuction
1.3. 9-29-1999 first appt. with Dr Pate
1.3.1. Mrs. Mills wanted the fat in her abdomen, hips, and thighs removed
1.3.2. Dr. Pate allegedly says that she will look beautiful afterwards and that all bulges and sags will be gone
1.3.3. Dr. Pates notes state that he explained technique, incisions, risks, and complications of the surgery and anesthesia
1.3.4. Mrs. Mills alleges that Dr. Pate never told her the risks although he did give her a brochure to read and sign (which she did).
1.4. 11/17/1999 Mrs. Mills signs informed consent form
1.4.1. Informed consent lists possible risks and outcomes including possible need for further surgery; It does not state that the quality of skin will not change and ripples and indentations may occur.
1.5. 12-2-1999 Mrs. Mills undergoes first liposuction
1.5.1. Initial swelling and dissatisfaction and was told it would improve
1.5.2. Six months after irregularities remained and she expressed dissatisfaction to Dr. Pate
1.5.3. Dr. Pate allegedly agreed to touch it up if she paid for a thigh lift
1.6. 1-9-2001 Mrs. Mills signs informed consent for the second procedure.
1.7. 1-16-2001 Mrs Mills undergoes second procedure.
1.7.1. Signs consent for lower abdominal and bilateral hip flank liposuction with thigh lift.
1.7.2. Informed consent noted additional risks including possible need for more procedures
1.7.3. Dr. Pate allegedly, again, did not discuss the risks with the patient
1.7.4. After her second surgery, Mrs. Mills remained unhappy with notable irregularities that again were attributed to swelling.
1.8. 8-30-2001 Mrs. Mills has her last appointment with Dr. Pate.
1.8.1. She remains dissatisfied due to irregularities
1.8.2. Dr. Pate allegedly says that Mrs. Mills should have paid him for a tummy tuck. Mrs. Mills alleges that Dr. Pate originally state that she would probably not need one.
2. Issue
2.1. 1. Did Dr. Pate fail to properly warn and obtain Mrs. Mills informed consent?
2.2. 2. Did Dr. Pate fail to deliver what was promised based on the outcome of her surgeries (i.e. is he guilty of breach of express warranty)?
3. Conclusion
3.1. On negligence:
3.1.1. The court affirmed the previous decision that there was no evidence that Dr. Pate failed to obtain Mrs. Mill's informed consent prior to the second procedure.
3.2. On breach of express warranty
3.2.1. The court affirmed in part, revesed in part, and remanded for trial
4. Impact
4.1. Key v. Vierra
4.1.1. Mrs. Belma Key saw Dr. Vierra for facelift and liposuction. Mrs. Key alleged that Dr. Vierra stated that she would have a flat stomach and no visible scars.
4.1.1.1. Mrs. Key was not satisfied with the result and sued Dr Vierra for misrepresentation, common law fraud, and breach of express warranty
4.1.1.1.1. The court found that unlike Mills v Pate and Sorokolit that there was no evidence in Key v. Viera that Dr. Viera made any specific claims to allow for evaluation of the case outside of MLIIA and therefore no grounds for breach of express warranty.
4.2. Hunsucker v. Fustok
4.2.1. Mrs. Casey Hunsucker saw Dr. Fustok for a breast implant replacement surgery. Dr. Fustok discussed surgical options with Mrs. Hunsucker and a submammary approach (instead of peri-areolar) was agreed upon. However, at surgery the peri-areolar approach was used.
4.2.1.1. Mrs. Hunsucker sued Dr Fustok for common law fraud, breach of express warranty, and other tort claims.
4.2.1.2. She failed to file an expert testimony within 90 days as required by statute for health care liability claims.
4.2.1.3. Mrs. Hunsucker non-suited the negligence claims and asserted assault and battery maintaining her breach of express warranty arguing that they fall outside of healthcare liability claims. Mills v. Pate and Sorokolit were both cited to try and argue this point.
4.2.1.3.1. The court found that Mrs. Hunsucker's claim that a surgical procedure that was agreed upon NOT to be used was inseparable from the rendition of health care services and therefore is a health care liability claim.
4.2.2. After surgery Mrs. Hunsucker was unsatisfied with the result and claimed a loss of feeling around her areolas.
5. Rule
5.1. 1. On the topic of negligence:
5.1.1. TEX.REV.CIV.STAT. art. 4590i, section 6.02
5.1.1.1. "...recovery may be obtained only under the theory of “negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.”..."
5.1.2. TEX.REV.CIV.STAT. art.4590i, § 6.024, see also Hartfiel v. Owen, 618 S.W.2d 902, 905 (Tex.Civ.App.-El Paso 1981, writ ref’d n.r.e.)
5.1.2.1. "...(a plaintiff may not recover for negligence under theory of informed consent unless he proves both that he would not have consented to treatment had he been informed of the undisclosed risk and that he was injured by the occurrence of the risk of which he was not informed)..."
5.2. 2. On the topic of express warranty:
5.2.1. Sorokolit v. Rhodes, 889 S.W. 2d 239 (TEX, 1994)
5.2.1.1. "...held that statute barring characterization of medical negligence claims against physicians and health care providers as DTPA claims bars DTPA suits founded on breach of accepted standard of medical care, but does not preclude suits under DTPA for knowing misrepresentations or breach of express warranty in cases in which physician or health care provider warrants particular results."
6. Importance
6.1. A physician may follow the standard of care and think they are operating in a patients best interest, but if an express claim was made about specific outcomes (or deliverable) they may not be covered by health care liability and may be vulnerable to breach of express warranty claims.
7. Application
7.1. On Negligence
7.1.1. Mrs. Mills alleged that Dr. Pate failed to explain the risks of the second liposuction and that if he had she would not have consented.
7.1.1.1. Mrs. Mills alleges that by the time information (i.e. irregularities, need of additional procedure) was added to the consent she was already suffering from these.
7.1.1.1.1. The court notes that she did in fact sign on informed consent form prior to the second procedure outlining these risks
7.1.1.1.2. Furthermore, even if Dr. Pate promised that the surgery would fix the irregularities this did not mean he didn't obtain informed consent to the possible hazards of the procedure.
7.1.2. Dr. Pate argues that Mrs. Mills lacks evidence to every element of informed consent
7.2. On breach of express warranty
7.2.1. Mrs. Mills alleged the lower court erred in granting summary judgement for her breach of express warranty claim
7.2.1.1. She amended the original complaint to include a breach of express warranty claim alleging that Dr. Pate promised: 1) She was a suitable surgical candidate and 2) She would look beautiful with smooth skin when in fact his deliverables left her with irregularities.
7.2.2. Dr. Pate argues that Mrs. Mills express warranty claim was just an attempt to retry the negligence claim avoiding the requirements of MLIIA. He also notes that she had no evidence to support this claim anyway.
7.2.2.1. The court noted that the claim of express warranty was not precluded under MLIIA ("the Act") because it dealt with promised deliverables and did not require proof of standard of care.
7.2.2.2. The court also felt there was enough probative evidence to support the express warranty claim.