1. 1) Facts
1.1. Ms. Mills vs Dr. Pate - Malpractice suit. Alleged claims of negligence, lack of informed consent, and breach of express warranty.
1.1.1. Judge David Wellington Chew decided the case.
1.1.2. Originally the El Paso County Court ruled in favor of Dr. Pate. The patient appealed.
1.2. The first consult for the procedure (liposuction and thigh lift) was on 9/29/1999. Initial surgery was performed on 12/2/1999.
1.3. The patient and surgeon had differing definitions of "beautiful" outcomes.
1.4. Ms. Mills continued to be dissatisfied with her results and went through several subsequent surgeries to correct the first. She claims that this risk was never expressed to her.
1.5. Ms. Mills ultimately went through an abdominoplasty and body lift to correct her previous results. She claims that if the original surgery was done properly, this would not have been needed.
2. 2) Issue
2.1. 1) Was Dr. Pate negligent in his care for Ms. Mills?
2.2. 2) Was informed consent received?
2.3. 3) Did Dr. Pate breach express warranty?
3. 3) Rule of Law
3.1. Informed Consent:
3.1.1. TEX.REV.CIV.STAT. art. 4950i, section 6.02
3.1.2. 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 *289 risk and that he was injured by the occurrence of the risk of which he was not informed.
3.2. Breach of express warranty: Dr. Pate's no-evidence motion expressed that Ms. Mills' breach of express warranty claim was an attempt to recast her original claim of negligence.
3.2.1. Medical Liability and Insurance Improvement Act
3.2.2. "A cause of action against a health care provider is a health care liability claim under the Act if it is based on a claimed departure from an accepted standard of medical care, health care, or safety of the patient, whether the action sounds in contract or tort."
3.2.3. "A cause of action alleges a departure from accepted standards of medical care or health care if the act or omission complained of is an inseparable part of the rendition of medical services. It is well settled that a health care liability claim cannot be recast as another cause of action to avoid the requirements of the Act. To determine whether a plaintiff has tried to do so, we must examine the underlying nature of the claim and are not bound by the form of the pleading. If the claim is based on the physician’s breach of the accepted standard of medical care, the cause of action is nothing more than an attempt to recast the malpractice claim."
4. 4) Analysis & Application
4.1. Informed Consent
4.1.1. It is clear that Dr. Pate did express the risks and complications to the patient, at the minimum, via the Informed Consent Form. The conflicting claims of the doctor's exam notes and the patients recollection of the visit or what was said cannot be proved with 100% certainty, but her signature on the Consent form cannot be disputed. If she chose not to read the Informed Consent Form, this does not change the fact that she had the information available to her.
4.1.1.1. Dr. Pate expressed in his exam notes from the pre-operative visit that he explained the technique, incisions, risks, and complications of surgery and anesthesia. He indicated that a long term risk was additional surgery and told her that irregularities could occur.
4.1.1.2. Ms. Mills claims that Dr. Pate did not inform her of the risks and details of the procedure at her appointments. She claims that if he had informed her of these risks, she would not have consented to the procedure.
4.1.1.3. Ms. Mills signed Informed Consent Forms for both surgeries. These forms outlined all relevant risks of the procedure.
4.2. Breach of Expressed Warranty
4.2.1. The Medical Liability and Insurance Improvement Act asserts that the expected standard of care can be breached by actions of a contract or a tort. In this case, Ms. Mills can claim that Dr. Pate's conversations and representations of his services can stand as an expressed warranty claim.
4.2.1.1. The breach of express warranty claim was an amendment to Ms. Mills' original claim. For this reason, Dr. Pate asserted that this claim was an attempt to recast the original claim of negligence.
4.2.1.1.1. The court did overturn the original ruling the the favor of Dr. Pate.
4.2.1.2. Dr. Pate's assertions regarding the quality and characteristics of his services claimed that Ms. Mills was a suitable candidate for surgery and that she would have her desired results after surgery.
4.2.1.2.1. In Dr. Pate's deposition, he did admit that she had a small irregularity of the left hip in her pre-operative photographs.
5. 5) Conclusion
5.1. The court ultimately let the trial court's judgement on the lack of informed consent claim stand, stating that informed consent was received due to the signed informed consent forms.
5.2. The court overturned the trial court's decision on the breach of express warranty claim. The court ruled in favor of Ms. Mills, deciding that Dr. Pate's conversations and representations of his services did stand as expressed warranty and did not qualify as an attempt to recast her original claim of negligence under the Medical Liability and Insurance Improvement Act.
6. 6) Impact
6.1. Hunsucker v Fustok 238 S.W.3d 421
6.1.1. Patient filed suit against surgeon for negligence and fraud claims, later adding a claim of assault and battery. Surgeon moved to dismiss the case based on the failure of the patient to file an expert report and requested sanctions. The patient was having a correction of a breast implant surgery. The patient and surgeon agreed to insert the new implants submammary (under the breasts), but instead used a peri-areolar approach (through the nipple/areola).
6.1.2. The patient urged the court to consider Mills v Pate in the surgeon's movement to dismiss based on statute of limitations. In Mills v Pate, Pate filed a motion asserting that the claims were barred by a 2 year statute of limitations.
6.2. Key v Viera 2009 WL 350602
6.2.1. Patient filed suit against surgeon for breach of warranty after liposuction left pockets of fat, rather than a smooth, flat stomach that was desired.
6.2.2. Mills v Pate was referenced to urge the court to support Key's claim that her causes of action were not liability claims.