1. Importance
1.1. Contracts
1.1.1. Identifying all potential risks to process/procedures is essential.
1.1.2. Consent to risks at anytime after initial injury nullifies right to collect for Express warranty damages.
1.1.2.1. Touch-up write-ins to contracts common.
1.2. Marketing
1.2.1. Advertisements and "examples" can incur legal obligation to perform at specified quality level
1.2.1.1. Provider's must be careful when "pitching" procedures to new clients, obligations might be incurred.
1.2.2. Even true when patient's opinion in the picture.
2. Impact
2.1. Key v. Viera
2.1.1. 2009 WL 350602
2.1.1.1. Appeal of judgement after trial court ruled for summary judgement in favor of physician under malpractice for breach of express warranty.
2.1.1.2. Court was asked to consider Mills v. Pate as the issue of reframing negligence claim found unsupported as Negligence by Breach of Express warranty.
2.2. MacFarlane v. Burke
2.2.1. 2011 WL 2503937
2.2.1.1. Case for malpractice was brought before the court and issues a summary judgement to the defendant, it was then appealed.
2.2.1.2. Mills v Pate referenced heavily for the issue of malpractice for physician's obtaining informed consent.
2.2.1.2.1. Court determined the exact date that consent had been obtained, it was ascertained as being the date of the surgery.
2.2.1.2.2. Similar to Mills v. Pate exact timing of consent acquisition made the ultimate difference between judgements.
3. Influence
3.1. Disclaimers are frequently added to images provided for any physical changes to the body caused by a process or procedure
3.1.1. Results may vary common,
3.2. Consent to the full potential for risks included on all consent documentation.
3.2.1. Satisfaction not guaranteed, in some cases repeat procedures necessary for results to be achieved, potential for serious complications is present.
4. Facts
4.1. Parties
4.1.1. Joyceline Mills, Appelant
4.1.2. Dr. John Pate M.D., Appellee
4.1.3. Peter Peca, Initial deciding Justice
4.1.4. David Wellington Chew, Deciding Justice for appeal
4.2. History
4.2.1. Sep 29, 1999-Ms. Mills has first consultation with Dr. Pate.
4.2.1.1. "told Dr. Pate that she wanted to remove the fat bulges on her abdomen, hips, and thighs"
4.2.1.2. Ms. Mills recalled that Dr. Pate told her "her skin would be beautiful after liposuction"
4.2.1.2.1. Ms. Pate took this to mean smooth skin and no "pooches"
4.2.1.3. Ms. Pate recalled that Dr. Pate told her that "all of the little bulges and bags would be taken care of through the liposuction procedure" he also stated "that she had wonderful skin"
4.2.1.4. Dr. Pate's exam notes stated that he explained: the procedure, the incisions, the risks, and complications of surgery and anesthesia. The also indicate that Dr. Pate explained that "long term results ma require small crescent tuck to abdomen and a medial thigh lift due to (fair) skin tone".
4.2.1.4.1. Dr. Pate Allegedly told her that quality of her skin would not change and irregularities frequently occur.
4.2.1.4.2. Ms. Pate denies this.
4.2.1.5. Ms. Pate read and signed brochure from Dr. Pate.
4.2.2. November 17, 1999 Ms. Hill signed informed consent form and permission to perform surgery.
4.2.2.1. Potential for second required surgery included in consent form. Irregularities not addressed in form.
4.2.3. December 2, 1999 Dr. Pate performed 1st surgery.
4.2.4. Six months after surgery Ms. Mills dissatisfied with results. She noticed irregularities.
4.2.5. Dr. Pate agreed to do touchup at no cost if Ms. Mills paid for medial thigh lift (mentioned in consent form).
4.2.5.1. Ms. Mills Agreed
4.2.6. January 9 2001 Ms. Pate signs second informed consent form.
4.2.7. January 16, 2001 consent for lower bilateral abdominal hip flank liposuction and medial thigh lift.
4.2.7.1. Consent form specifically included risks of "dissatisfaction with cosmetic results ... possible need of future revision to obtain improved results, poor wound healing, recurrence of the original condition, and uneven contour".
4.2.8. Ms. Mills unhappy with second procedure.
4.2.9. Ms. Mills consulted with Dr. Miller September 2001.
4.2.9.1. Informed results could be achieved after three surgeries
4.2.9.2. Referred to Dr. Gilliland due to specialty in the area.
4.2.10. November 2001 Ms. Mills Consults with Dr. Gillimand.
4.2.10.1. Abdominoplasty required.
4.2.10.2. Dr. Gilliland noted that Dr. Pate's care was inadequate.
4.2.11. Dr. Gilliland performed abdominoplasty, achieves results that Ms. Mills expected.
4.3. Procedural Process
4.3.1. January 23 2002- Ms. Mills notifies Dr. Pate of her intent to sue under the Medical Liability and Insurance Improvement Act.
4.3.2. January 23 2002- Ms. Mills Files suit for Medical Malpractice against Dr. Pate.
4.3.2.1. Claims that Dr. Pate exhibited negligence in failing to warn of potential outcomes thus not obtaining informed consent.
4.3.2.2. Later amended to include breach of express warranty.
4.3.3. Summary judgement was given to the Appellee.
4.3.4. Ms. Mills Appealed.
4.3.5. Appeals Court upheld the Trial court's judgement to the defendant for the informed consent claim. Judgements for negligence/breach of express warranty were reversed and remanded to trial court for further determination.
5. Issue
5.1. Was the trial court correct in awarding Dr. Pate (Appellee) summary judgement in response to Ms. Mills' claims of Failure to obtain informed consent, Negligence, and Breach of Expressed Warranty.
6. Rule of Law
6.1. Failure to obtain informed consent
6.1.1. TEX.REV.CIV.STAT. art. 4590i, section 6.02,
6.1.2. “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.”
6.1.2.1. Plaintiff can not sue for negligence in regards to gaining informed consent unless the can prove that they would have denied consent if presented with the potential risks.
6.1.2.2. Plaintiffs have to additionally prove that they were injured by the risks they were not disclosed.
6.2. Breach of Express Warranty
6.2.1. Any affirmation of fact or promise made by the seller to the buyer which relates to the goodsand becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
6.2.2. In this case, the quality of the results from the surgery and whether they u
6.3. Negligence
6.3.1. Failure to abide by normal standards of practice or deliver quality care resulting to injury or worsened condition of patient.
6.3.1.1. Initial court ruled in favor of Dr. Pate.
6.3.1.2. No deviation from standard levels of care was noted.
7. Analysis
7.1. Breach of express warranty
7.1.1. Plaintiff claims that Dr. Pate expressed warranty through verbiage used during consultation for the first surgery.
7.1.2. Dr. Pate failed to document the potential for dissatisfaction in consent forms and/or brochure.
7.1.2.1. Ms. Mills amends original petition to include Breach of Express Warranty.
7.1.2.1.1. Dr. Pate's representation attempted to dismiss as an attempt reframe initial negligence claim that did not meet standards under TEX.REV.CIV.STAT. art. 4590i, section 6.02,
7.1.2.1.2. A liability claim can not be recast as another cause of action to avoid requirements of TEX.REV.CIV.STAT. art. 4590i, section 6.02,
7.2. Failure to Obtain Informed Consent
7.2.1. Plaintiff was informed of all the risks that are claimed in this case prior to the second surgery with Dr. Pate.
7.2.1.1. Under TEX.REV.CIV.STAT. art. 4590i, § 6.024 Plaintiff rescinded right to claim negligence by failure to obtain informed consent through acceptance of risks that presumably caused injury at a later date.
7.2.1.1.1. Court ruled in favor of Dr. Pate and upheld original judgement in regards to this claim.
7.2.2. Plaintiff willingly accepted the risks of the second surgery and provided consent.
8. Conclusion
8.1. Court ruled to reverse rulings previously decided by trial court in regards to the negligence in breach of express contract.
8.1.1. Dr. Pate was originally awarded this ruling.
8.1.2. Due to holdings found in Sorokolit Ms. Mills was awarded favor over this opinion.
8.1.2.1. extent to be determined by trial court.
8.2. Court retained opinion of previous judgement in favor of Dr. Pate regarding Failure to obtain informed consent.
8.2.1. Appellant filed for claims of malpractice solely relating to contracts due to Dr. Pate not having deviated from standard medical practices to warrant negligence as a sole claim.
8.2.1.1. Court upheld initial ruling in favor of Dr. Pate for Negligence as a sole claim.
8.2.2. Ms. Mills accepted risks claimed uninformed of at a later date nullifying ability to collect damages.