Mills v. Pate, 225 S. W. 3d 277 (2006)

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Mills v. Pate, 225 S. W. 3d 277 (2006) by Mind Map: Mills v. Pate, 225                   S. W. 3d 277 (2006)

1. Facts

1.1. Parties

1.1.1. Ms. Joyceline Mills, 46-year old female

1.1.2. Dr. John Pate, Plastic Surgeon

1.2. What Happened

1.2.1. 1999: Ms. Mills hears Dr. Pate's radio ad and decides to have surgery to remove fat from her legs and abdomen

1.2.2. 9/29/1999: Ms. Mills has her first consultation with Dr. Pate Her version: Dr. Pate told her all her skin imperfections would be taken care of with liposuction and she had wonderful skin tone. Dr. Pate provided her with a brochure to read and sign. His version: He explained the procedure, as well as the risks, and possible complications. As informed Ms. Pate that she may require a tummy tuck or medial thigh lift for long-term results because her skin tone was "fair".

1.2.3. 11/17/1999: Ms. Mills signed an informed consent form and a permission to perform surgery form that stated touch-up procedures may be necessary, as well as listed possible side effects.

1.2.4. 12/2/1999: Ms. Mills undergoes her first liposuction procedure with Dr. Pate.

1.2.5. December 1999-6 months post-op: Ms. Mills follows all instructions but notices irregularities in her skin and mentions them to Dr. Pate's staff who tell her the irregularities are due to swelling.

1.2.6. >6 months post-op: Ms. Mills expresses her dissatisfaction with her results to Dr. Pate. Dr. Pate tells her if she pays for a thigh lift, he will do the touch up procedure. Her version: Dr. Pate never explicitly told her prior to the first procedure that she would require a thigh lift, although the disclosure (which she signed) mentioned it.

1.2.7. 1/9/2001: Ms. Mills signs an informed consent form for the second procedure.

1.2.8. 1/16/2001: Ms. Mills signs a surgical consent form and undergoes liposuction of her lower abdomen, hips and flanks, as well as, a thigh lift. The consent form discloses that there may be dissatisfaction with surgical outcome, need for future procedures, poor wound healing and uneven contour Her version: She believed this procedure was only "touch-up work" and the thigh lift would rectify her saggy skin. She was not verbally informed of the risks of this procedure.

1.2.9. 8/30/2001: Ms. Mills has her last appointment with Dr. Pate where she expresses dissatisfaction with her results. Dr. Pate informs her that she should have undergone a tummy tuck or abdominoplasty. Her version: Dr. Pate had never mentioned this before and instead told her at the initial consult that she did not need these procedures.

1.2.10. September 2001: Ms. Mills sees Dr. Miller, a plastic surgeon, to discuss her surgical options. He refers her to Dr. Gilliland in Houston, TX, a surgeon who specializes in body contouring.

1.2.11. October 2001: Dr. Gilliland tells Ms. Mills that Dr. Pate did not perform to the standard of care. He also informed her that she would require an abdominoplasty to obtain the desired results.

1.2.12. Ms. Mills undergoes an abdominoplasty, body lift, and thigh lift revision with Dr. Gilliland. Ms. Mills is satisfied with the surgical outcome. Ms. Mills states if she had known she would require such an extensive procedure as a body lift to obtain the results she wanted she would have declined the initial procedure.

1.3. Procedural History

1.3.1. 1/23/2002: Ms. Mills files suit against Dr. Pate under the Medical Liability and Insurance Improvement Act (MLIIA). Alleging he failed to properly obtain informed consent and caused and failed to correct the abdominal irregularities. She later amends the petition to include a breach of express warranty as Dr. Pate failed to deliver the results he promised.

1.3.2. Dr. Pate files a no evidence motion for summary judgement. The court grants the motion.

1.3.3. Ms. Mills appeals this ruling.

2. Issue before the Court

2.1. Is there sufficient evidence to support lack of informed consent?

2.2. Is there sufficient evidence to determine breach of express warranty? Is the breach of express warranty claim an attempt to remake her malpractice claim?

3. Rule of Law

3.1. Informed consent

3.1.1. The physician should discuss the diagnosis, treatment, risk, benefits, alternative treatments, prognosis and possible complications with the patient.

3.1.2. Damages can only be recovered if the plaintiff proves that she would not have consented to the procedure had she known the undisclosed risks and that she was injured by the occurrence of the undisclosed risk.

3.2. Breach of express warranty

3.2.1. Deviance from standard of medical care, health care, or patient safety

4. Analysis

4.1. Informed consent

4.1.1. Ms. Mills's argument She alleged Dr. Pate did not disclose to her the risks and hazards inherent to a second liposuction procedure She feels she would have refused such treatment had she been explained these risks

4.1.2. Dr. Pate's defense He asserted Ms. Mills lacks evidence of a breach of duty, causation, or harm The Court agreed citing TEX.REV.CIV.STAT. art. 4590i, section 6.02, which states that damages may be recovered 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."

4.2. Breach of expressed warranty

4.2.1. Ms. Mills's argument She alleged Dr. Pate told her she was a suitable candidate for liposuction and after liposuction should look beautiful and free of skin imperfections. This warranty was breached when Dr. Pate's services did not live up to his promises. She references Sorokolit, where is was determined that a physician can be held liable if he does not deliver the promised surgical outcome.

4.2.2. Dr. Pate's defense He believes her evidence of this claim falls under MLIIA and is an attempt to recast the negligence claims as breach of contract. These claims are inseparable from the medical services provided.

5. Conclusion

5.1. The appellate court affirmed in part and reversed in part the trial court's judgement.

5.1.1. Informed consent Affirmed that there is no evidence to show that Dr. Pate failed to obtain informed consent.

5.1.2. Breach of express warranty Reversed the trial court's ruling and determined there is evidence to suggest that Dr. Pate representations were an expressed warranty and he did not deliver on the promised services, thus a breach of express warranty occurred.

6. Impact

6.1. Hunsucker v. Fustok 238 S.W. 3d 421 (2007)

6.1.1. Ms. Hunsucker sees Dr. Fustok for breast implant revision. At the consultation, Dr. Fustok informed her that she would likely need new implants. She stated that she wanted them placed submammary, which Dr. Fustok agreed to. On the day of surgery, Dr. Fustock reinserted the old implants peri-areolar, causing sensory loss to Ms. Hunsucker's breasts. Ms. Hunsucker sues for negligence, fraud, fraudulent inducement, and breach of contract. Dr. Fustock filed a motion to dismiss the case which the court approved. Ms. Hunsucker appeals.

6.2. Key v. Viera, No. 01-07-00587-CV, 2009 WL 350602 (Tex. App. Feb. 12, 2009)

6.2.1. Ms. Key see Dr. Viera for a facelift and abdominal liposuction. At the consultation, Dr. Viera informs her that facelift scars should not be visible but may require scar revision and she should receive good results from liposuction although unevenness can occur. Post-op she reports visible scars and unevenness of her abdomen. Dr. Viera offers her a scar revision but declines to do additional liposuction. She then goes to another surgeon who tells her that additional liposuction would give her the results she desires. Ms. Key files suit for breach of contract, common law fraud, and negligent misrepresentation. She later files a petition for breach of express warranty.

7. Importance

7.1. Why should patients and physicians care about this ruling?

7.1.1. It reinforces the components essential for informed consent Patients should read carefully what they sign

7.1.2. Holds physicians accountable for their promises made in advertising and preoperative consultations Physicians are responsible for both written and expressed warranties

8. Influence

8.1. Documentation

8.1.1. Physicians are very diligent with documenting topics discussed during informed consent and often times include phrases such as "to include but not limited to" as a catch-all.

8.1.2. Consent forms are very detailed to include all possible risk, benefits, alternative treatments, prognosis and possible complications associated with a given procedure that the physician may not explicitly discuss.

9. By: Ayee Azah