1. Importance
1.1. Doctors will want to ensure a comprehensive informed consent form exists for their patients to sign
2. Rule of Law
2.1. Informed Consent
2.1.1. Agreement o permit medical procedure after disclosure of all relevant facts needed to make an intelligent decision
2.2. Express Warranty
2.2.1. The promise that treatment will yield a specific result
3. Analysis
3.1. Courts analysis of Informed Consent
3.1.1. Recovery only under the theory of negligence in failing to disclose the risks or hazards that could have influence a reasonable person in making a decision to give or withhold consent.
3.1.1.1. Mills signed consent form specifically disclosed the following risks: dissatisfaction with cosmetic results, possible need of future revision to obtain improved results, poor wound healing, recurrence of original condition, uneven contour.
3.2. Breach of Express Warranty
3.2.1. Pate asserts this Breach of Contract claim is an attempt to recast negligence claim
3.2.1.1. A healthcare liability cannot be recast as another claim
3.2.1.1.1. Court analysis of recast of negligence claim
3.2.2. Pates remarks, promised results, and injuries she suffered raises genuine issues of material fact of Mill's Breach of Express claim with respect to the first surgery, which Mills paid Pate to perform
4. Conclusion
4.1. Affirmed the trial court's judgement in part (Informed Consent), and reversed in part (Breach of Express Warranty), and remanded the cause to the trial court for further proceedings
4.1.1. Doctors will also want to ensure they are familiar with the wording of the informed consent, and not make promises of outcomes that go beyond the consent form
5. Mills V Pate, IRAC Analysis 2/4/18 Mary (Kristy) Kainrath
6. Facts
6.1. Parties
6.1.1. Joyceline Mills, Appellant
6.1.2. Dr. John Pate, MD, Appellee
6.2. What happened
6.2.1. Mills decided she wanted liposuction
6.2.2. 9/29/99 Mills had her first consultation with Pate. Mills was 46 at the time.
6.2.3. Her version
6.2.3.1. Pate told her she was going to be beautiful after having lipsuction
6.2.3.2. She believed she would have smooth skin and no pooches
6.2.3.3. Pates staffed showed her pictures of post-procedures photographs of patients that had smooth skin and no saddlebags
6.2.4. His version
6.2.4.1. Pate explained liposuction technique, incisions, risks, and complications of surgery and anesthesia
6.2.4.2. He explained a possible requirement of tuck to the abdomen or thigh lift because her skin tone was only fair
6.2.5. 11/17/99 Mills signed an informed consent and permission to perform surgery form
6.2.5.1. Informed consent form states: usually only one treatment is necessary, 4-5% of patients require a touch-up procedure usually approximately 6 months after surgery, If touch-up is done at the Surgical Center, Pate does not charge the patient, however Surgical Center does charge and possible further anesthetic charges
6.2.5.2. Listed possible side effects: discomfort, bruising, pigment change, scarring, swelling for up to six months. Possible serious complications from surgery
6.2.6. 12/2/99 Pate performed his first liposuction procedure on Ms. Mills
6.2.6.1. Surgery on her abdomen, hips, flanks, and thighs
6.2.6.2. Evidence supports reasonable inference that Mills was charged for the first surgery
6.2.7. Within six months of the first surgery Mills begin complaining to Pate's staff about irregularities
6.2.7.1. Two distinct rolls under her right breast in the upper abdomen area
6.2.7.2. The skin on her thighs was sagging in the front and inside, down to her kneecaps
6.2.8. Mills was told it was swelling and Pate told her the swelling would go away
6.2.9. After six months, Mills became unhappy with the results of the first procedure when it became obvious the irregularities were not just swelling.
6.2.9.1. Mills expressed her concern to Pate's staff, and Pate's staff cautioned her to express her concerns very delicately to Pate or he would not repair it
6.2.10. Mills mentioned to Pate that the irregularities, the abdominal rolls specifically, could no longer be swelling and expressed dissatisfaction
6.2.11. Pate proposed a thigh lift and a touch-up
6.2.11.1. Mills interpreted the thigh lift would be paid for
6.2.11.1.1. Mills did not recall a potential need for a thigh lift prior to her first liposuction procedure, but she did recall it mentioned in the disclosure
6.2.11.2. Mill interpreted the touch-up would be free and consist of the bulges on her abdomen and left hip
6.2.12. 1/9/01 Mills signed an informed consent form for the second surgery
6.2.13. 1/16/01 the day of her second surgery, Mills signed a consent form consenting to lower abdominal bilateral hip flank liposuction and thigh lift
6.2.13.1. Consent form specifically disclosed the following risk: dissatisfaction with cosmetic results, possible need of future revision to obtain improved results, poor wound healing, recurrence of the original condition, and uneven contour
6.2.14. Mills was dissatisfied with the results of the second surgery
6.2.14.1. Bagging and sagging after thigh lift, rolls had moved from her right side to her left, below her naval, disproportionate hips, bulge on her right thigh
6.2.15. Mills was told it was swelling but irregularities did not go away
6.2.16. 8/30/01 Mills last appointment with Dr Pate, who told Mills she should have paid for a tummy tuck or abdominoplasty
6.2.17. A month later, Mills visited another plastic surgeon, Dr. Miller, who referred her Dr. Gilliland who specializes body contouring and could give better results
6.2.18. A month later, during Mills consultation with Gilliland, Mills was recommended a body lift to correct the irregularities from her liposuction procedures
6.2.19. Gilliland performed an abdominoplasty and body lift, and Ms. Mills was satisfied with the results
6.2.19.1. Rippling and rolls were gone, thighs were slimmed, and abdomen was flattened and smooth
6.3. Procedural history
6.3.1. 1/23/02 Mills notified Pate of her intent to sue
6.3.2. 1/23/03 Mills filed suite against Pate for medical malpractice, specifically alleging that Pate was negligent by failing to properly warn and obtain her informed consent with the probably outcome of the liposuction procedures and the need for future treatment
6.3.2.1. Mills later amended her petition to include breach of express warranty
6.3.3. 346th District Court, El Paso County, Peter Peca, J,. granted physician summary judgment
6.3.4. Patient appealed
6.3.4.1. What does Mills want?
6.3.4.1.1. Review of lack of informed consent and Review of breech of express warranty