1. Parties
1.1. Joyceline Mills, 46 year old woman with a history of smoking
1.2. John Pate, M.D.
2. What Happened?
2.1. Joyceline Mills made an appointement with Dr. John Pate to have liposuction.
2.1.1. Heard Dr. Pate's radio advertisement that he was board certified, an expert in liposuction, and could change one's life.
2.1.2. Wanted fat bulges on abdomen, hips, and thighs removed
2.2. September 29, 1999: Ms. Mills' first consultation with Dr. Pate.
2.2.1. Her Story
2.2.1.1. Ms. Mills was allegedly told that the quality of her skin would not change after liposuction and that irregularities frequently occur.
2.2.1.1.1. In response, Dr. Pate told her she was going to be beautiful (smooth skin and no "pooches" she thought)
2.2.1.1.2. Told she had beautiful or wonderful skin (skin tone)
2.2.1.2. Stated that Dr. Pate never told her about any possible risks with the procedure, but gave her a brochure to read and sign - she did.
2.2.1.2.1. Never told her about "rippling or any other irregularities to her skin following liposuction" and never discussed any adverse effects.
2.2.2. His Story
2.2.2.1. Exam notes indicated that Dr. Pate explained the liposuction technique, the incisions, risks, and complications of surgery and anesthesia
2.2.2.1.1. Also indicate that the long-term results may require an additional procedure (abdomen tuck)
2.3. November 17, 1999: Ms. Mills signed an informed consent form and a form that gave permission to perform the surgery.
2.3.1. Treatment section of informed consent: "Usually, only one treatment is necessary to improve body contours to both my satisfaction, as well as the patient's satisfaction. In 4 or 5% of my patients (4 or 5 of every 100), a touch-up procedure following the surgery, usually after approximately 6 months, is necessary to maximize the cosmetic benefit. If this touch-up procedure is done at the Surgical Center I do not charge the patient for the touch-up procedure, however the Surgical Center does charge for this procedure, and there may be further anesthetic charges as well."
2.3.2. Consent form listed the following possible side effects of liposuction: "discomfort, bruising, pigment change, scarring, swelling for up to six months"
2.3.2.1. Dr. Pate admitted that the consent form did not tell the patient that the quality of her skin would not change and that she may have ripples, indentations, or abdominal abnormalities after liposuction.
2.4. December 2, 1999: Dr. Pater performed his first liposuction procedure on Ms. Mills.
2.4.1. Liposuction included: surgery on her abdomen, hips, flanks, and thighs
2.4.2. According to evidence, Ms. Mills was charged for this procedure.
2.5. Post Surgery: within six months
2.5.1. Ms. Mills followed all of Dr. Pate's post-operative instructions
2.5.2. Post-operative swelling was expected and occurred
2.5.2.1. Ms. Mills noticed swelling as well as bruising within the first week post-surgery
2.5.3. Swelling subsided, but after 3-4 months, Ms. Mills began to notice irregularities in her skin.
2.5.3.1. Two distinct rolls under her right breast in the upper abdomen area and the skin on her thighs was sagging in the front and inside, down to her knees
2.5.4. Ms. Mills began complaining to Dr. Pate's staff regarding the irregularities
2.5.4.1. Told it was swelling and that she should not worry (Dr, Pate specifically told her not to worry)
2.6. Post Surgery: Six months and later
2.6.1. Ms. Mills very unhappy with the first liposuction procedure results and again expressed her concerns to Dr. Pate's staff
2.6.1.1. Staff warned Ms. Mills to express her concerns "very delicately" to Dr. Pate or else he would not repair it.
2.6.2. Ms. Mills delicately expressed her concerns and dissatisfaction to Dr. Pate, specifically mentioning the irregularities: abdominal rolls
2.6.2.1. Dr. Pate's response: "[P]ay me to do a thigh lift and I'll touch it up."
2.6.3. Ms. Mills believed, at this time, that Dr. Pate would perform a second surgery, consisting of a medial thigh lift and a touch-up on the liposuction (abdomen rolls and a bulge on her left hip specifically)
2.6.3.1. Dr. Pate would charge for the medial thigh lift and do the touch-up at no charge.
2.7. January 9, 2001: Ms. Mills signed an informed consent for the second surgery
2.8. January 16, 2001: Ms. Mills signed a form consenting to lower abdominal bilateral hip flank liposuction and the thigh lift and had the second surgery.
2.8.1. This consent form specifically disclosed these risks: "dissatisfaction with cosmetic results...possible need of future revision to obtain improved results, poor wound healing, recurrence of the original condition, and uneven contour."
2.8.2. Ms. Mills believed that this liposuction was touch-up work.
2.8.3. Told by Dr. Pate that the thigh lift would take care of the baggy, saggy skin
2.8.3.1. Neither Dr. Pate nor his staff discussed with Ms. Mills potential risks from the procedure.
2.9. Post Second Surgery
2.9.1. Ms. Mills felt soreness in the abdomen and around the incision on her legs
2.9.2. Ms. Mills felt unhappy with the second procedure as well, bus was repeatedly told that the issue was swelling.
2.9.3. Ms. Mills saw that she still had some sagging after the thigh lift
2.9.3.1. Informed Dr. Pate that the rolls had moved to different parts of her body, but Dr. Pate continued to claim that it was swelling
2.9.4. Hips were now disproportionate.
2.10. August 30, 2001: Ms. Mills had her final appointment with Dr. Pate.
2.10.1. Dr. Pate informed Ms. Mills that she should have paid him to do a tummy tuck or abdominoplasty.
2.10.1.1. Dr. Pate had never mentioned that she might need those procedures
2.10.1.1.1. Specifically, at the initial consultation, Dr. Pate told her that he did not believe she would need a tummy tuck.
2.11. About a month after her final visit with Dr. pate, Ms. Mills had an appointment with Dr. Miller, a plastic surgeon.
2.11.1. Dr. Miller told Ms. Mills that he could likely fix her issues: rippling in her abdomen and the unevenness in her thighs
2.11.1.1. Minimum of three surgeries to fix all complaints.
2.11.2. Dr. Miller referred Ms. Mills to Dr. Gilliland in Houston because he was a specialist in body contouring and could likely provider her with better results
2.12. About a month after her initial consultation with Dr. Miller, Ms. Mills had a consultation with Dr. Gilliland.
2.12.1. Dr. Gilliland told Ms. Mills that a body lift would be needed in order to correct the irregularities that had resulted from her previous liposuction procedures.
2.12.1.1. Dr. Gilliland claimed that Dr. Pate's care and treatment of her had been inadequate.
2.12.1.2. There would be extensive post-operative care following the body lift.
2.13. Ms. Mills had an abdominoplasty and body lift performed by Dr. Gilliland.
2.13.1. This procedure included redoing the thigh lift.
2.13.2. Ms. Mills was satisfied with the results of Dr. Gilliland's work.
2.13.2.1. Ms. Mills believed that this result was the body shape that she could have had, had the initial liposuction been performed properly.
2.13.2.2. If Ms. Mills had known when she first consulted with Dr. Pate that she would need a body lift to achieve her desired results, she would not have had the procedure.
3. Procedural History
3.1. January 23, 2002: Ms. Mills notified Dr. Pate of her intent to sue under the Medial Liability and Insurance Improvement Act ("the Act").
3.2. January 23, 2003: Ms. Mills filed suit against Dr. Pate for medical malpractice.
3.2.1. Alleged that Dr. Pate was negligent by failing to properly warn and obtain her informed consent with respect to the probable outcome of the liposuction procedures and the need for future treatment and by causing and failing to correct the abdominal irregularities.
3.2.2. Ms. Mills later amended her petition to include a breach of express warranty claim.
3.3. Dr. Pate filed a tradtional motion for partial summary judgment with regard to Ms. Mills' consent claims to the December 1999 liposuction surgery
3.3.1. Dr. Pate argued that these claims were barred by the 2 year statute of limitations contained in Section 10.01 of Article 4590i
3.4. Dr. Pate filed an amended "no evidence" motion for partial summary judgment
3.4.1. Dr. Pate alleged that there was no evidence to support the essential elements of Ms. Mills' remaining claims.
3.5. Trial court overruled Ms. Mills' objection to the no-evidence motion
3.6. Trial court sustained all of Dr. Pate's objections to Ms. Mills' summary judgment evidence from Dr. Gilliland's testimony with respect to the appropriate standard of care.
3.7. Trial court granted both of Dr. Pate's motions for summary judgment.
3.8. Ms. Mills appealed the summary judgment as to her informed consent and breach of express warranty claims.
4. Impact
4.1. Gail MacFarlane v. Robert L. Burke, M.D., NO. 01–10–00409–CV (2011)
4.1.1. Appellant Gail MacFarlane appealed the trial court's grant of appellee's motion for summary judgment based on the affirmative defense of the expiration of the limitations period.
4.1.2. In addition to her claims for breach of duty, MacFarlane also claimed that Burke failed to advise her “of the potential complications and obtain an informed consent for the proper right knee replacement procedure.”
4.2. Cosmetic Procedures Clinic of North Dallas v. Jeff Ayub, No. 05-11-01286-CV (2012)
4.2.1. Appellant, Cosmetic Procedures Clinic of North Dallas, filed a motion to dismiss in the trial court. Appellant alleged that Appellee Jeff Ayub's suit was a "health care liability claim governed by chapter 174 of the Texas Civil Practice and Remedies Code and, therefore, required him to file a medical.II expert report 120 days after filing the original petition. CR 15-30." Trial court denied appellant's motion and appeal ensued.
4.2.2. In the appeal, appellant cited several cases thought to have concerned purely cosmetic procedures; however, cases mentioned, included physicians performing medical procedures.
5. Importance
5.1. What this means for healthcare professionals?
5.1.1. Potential and/or probable risks always need to be discussed with the patient verbally and in writing
5.1.1.1. Consent form should address all pertinent risks.
5.1.1.2. Clinicians should follow up with patients, confirming that they fully understand the risks and potential or likely outcomes.
6. Influence
6.1. Avoiding the use of the words like "guarantee" or "cure" in healthcare situations in which neither can be "guaranteed" 100%
6.2. Explicit risks in consent forms along with statements that the patient must sign that indicates understanding of the risks and acceptance of them.
7. Issue before the Court
7.1. Whether the trial court's granting of summary judgment in favor of apellee John Pate, M.D. was warranted.
7.2. Whether there was truly insufficient evidence to overrule the appellant's objection to the no evidence motion.
7.3. Whether the two-year statute of limitations applied to the case.
8. Rule of Law
8.1. Informed Consent
8.1.1. Medical procedure agreement that permits the procedure to commence after all relevant facts needed to make an intelligent (fully informed) decision have been disclosed.
8.2. Breach of Expressed Warranty
8.2.1. Physicians are susceptible to liability if they promise that their treatment will yield a specific result but fail to produce that result.
9. Analysis
9.1. Informed Consent
9.1.1. Her side
9.1.1.1. Ms. Mills claimed that Dr. Pate had failed to adequately disclose information to her as to the second liposuction
9.1.1.1.1. She claims that if he had disclosed the risks and hazards inherent in the procedure, she would have refused such treatment
9.1.1.1.2. Fraudulent concealment claim
9.1.2. His side
9.1.2.1. In response to Ms. Mills lack of informed consent claim, Dr. Pate submitted a motion for no-evidence
9.1.2.1.1. Dr. Pate Ms. Mills lacked evidence as to every element of informed consent to the January 2001 procedure. He alleged she had no evidence of duty, breach, causation, or harm relating to the touch-up liposuction and thigh lift
9.1.3. Court's Analysis
9.1.3.1. Additionally, Ms. Mills failed to present sufficient evidence to raise a fact issue on her fraudulent concealment claim
9.1.3.1.1. Ms. Mills did not submit sufficient evidence as to prove Dr. Pate was aware that he had committed a wrong and tried to conceal that wrong from her.
9.1.3.1.2. Ms. Mills knew that the irregularities resulting from the first procedure were not just swelling, as of 6 months post December 2, 1999 surgery.
9.1.3.2. Concluded that the trial court correctly granted Dr. Pate's traditional summary judgment motion because the informed consent claims relating to the first surgery were barred by the statute of limitations
9.1.4. Ms. Mills claimed that Dr. Pate's no-evidence motion for partial summary judgment was general and conclusory because it challenged all elements of her remaining claims
9.2. Breach of Expressed Warranty
9.2.1. Her Side
9.2.1.1. Claimed that the trial court erred in granting summary judgment as to her common law claim for breach of express warrantly
9.2.1.2. Alleged that Dr. Pate made the following representations to her about the quality of his services: she was a suitable candidate for surgery and that after liposuction surgery, she would look beautiful and that she would have smooth skin without ripples bulges, or bags
9.2.1.2.1. Dr. Pate breached the warranty, as expressed in his representations
9.2.1.3. Referenced Sorokolit (889 S.W.2d at 240)
9.2.1.3.1. a physician may be held liable for breach of express warranty if he promises particular results but fails to achieve those results
9.2.2. His Side
9.2.2.1. In his no-evidence motion, Dr. Pate claimed that Ms. Mills' breach of warranty claim was merely an attempt to reword her negligence claims as a breach of contract claim
9.2.2.1.1. Claimed she had no evidence to support the elements of her claim
9.2.3. Court's Analysis
9.2.3.1. Did not agree with the trial court in granting a no-evidence summary judgment as to Ms. Mills' breach of express warranty claim for the first surgery
9.2.3.1.1. Ms. Mills presented evidence that supported her claims
9.2.3.1.2. Dr. Pate's affirmative defense under the statute of frauds would have been an improper basis for granting the no-evidence summary judgment
10. Conclusion
10.1. Court of Appeals affirmed the trial court's judgment in part, reversed in part, and remanded the cause to the trial court for further proceedings.
10.1.1. Concluded the trial court correctly found there was no evidence that Dr. Pate failed to obtain Ms. Mills’ informed consent to the second surgery
10.1.2. Concluded that the trial court erred in granting a no-evidence summary judgment as to Ms. Mills' breach of express warrantly claim for the first surgery because Ms. Mills presented some probative evidence to support elements of her claim
10.1.2.1. Dr. Pate's affirmative defense under the statute of frauds would have been an improper basis for granting the no-evidence summary judgment