Mills v. Pate, 225 S.W.3d 277,288 (Tex. App. 2006)

Get Started. It's Free
or sign up with your email address
Mills v. Pate, 225 S.W.3d 277,288 (Tex. App. 2006) by Mind Map: Mills v. Pate, 225 S.W.3d 277,288 (Tex. App. 2006)

1. Facts

1.1. Parties

1.1.1. Ms. Mills, 46 year old smoker

1.1.2. Dr. Pate, board certified surgeon, self-proclaimed expert in liposuction

1.2. What happened

1.2.1. 09/29/1999 Mills had first consultation with Pate Mills' contention Per Mills, Pate told her that her skin tone was beautiful and that she would be beautiful after the procedure in the context of having smooth skin Mills alleged that Pate neglected to tell her all possible risks, adverse effects, and possible need for additional procedures Pate's contention Per Pate, his office notes for the consultation state that he indeed did discuss all possible aspects of the procedure and post-procedures

1.2.2. During consultation Mills read and signed a procedural brochure Mills agreed that the brochure indicated possible need for a medial thigh lift

1.2.3. 11/17/1999 Mills signed an informed consent form for liposuction surgery Pate agreed that the form left out mention of possible irregularities in skin and other post-procedure changes

1.2.4. 12/02/1999 Pate performed liposuction on Mills' "abdomen, hips, flanks, and thighs" Mills v. Pate, 225 S.W.3d 277,288 (Tex. App. 2006)

1.2.5. Three to four months after surgery Mills notices bulges and sagging aside from typical and expected swelling

1.2.6. Several months after surgery Mills informs Pate's office of the bulging and sagging as different than the swelling, was told not to worry by staff

1.2.7. After six months Mills spoke directly with Pate about her concerns and Pate agrees to do a touch up and "medial thigh lift." Pate requested payment for the thigh lift only. Mills v. Pate, 225 S.W.3d 277,288 (Tex. App. 2006)

1.2.8. 01/09/2001 Mills signed second consent form for additional surgery

1.2.9. 01/16/2001 The day of the second surgery Mills signed an additional consent form for "lower abdominal bilateral hip flank liposuction and...thigh lift" with additional information regarding possible dissatisfaction with results Mills v. Pate, 225 S.W.3d 277,288 (Tex. App. 2006)

1.2.10. Mills again experienced typical post-operative effects but is again unsatisfied with results due to continued bulging and sagging

1.2.11. Pate and staff again told Mills that it's only swelling and to wait for it to subside

1.2.12. 08/30/2001 Mills had an appointment with Pate where they discussed other surgical procedures that he thinks she should have had for better results

1.2.13. Mills had a consultation with a different surgeon Dr. Miller who referred her to an expert Dr. Gilliland about one month later

1.2.14. Dr. Gilliland told Mills that Pate had been "inadequate" and that he could fix her problem areas with a more invasive procedure that would leave a scar Mills v. Pate, 225 S.W.3d 277,288 (Tex. App. 2006)

1.2.15. Dr. Gilliland was able to fix all of Mills problems areas and she was satisfied with his work

1.3. Procedural history

1.3.1. 01/23/2002, Mills brings to Pate's attention that she is suing him under the Medical Liability and Insurance Improvement Act on the basis of medical malpractice On the assertion that Pate did not disclose all pertinent information regarding risks, complications and additional procedures Informed Consent

1.3.2. Mills later added a breach of express warranty claim Specifically that Pate made assertions that Mills was an appropriate candidate for surgery and that she would be beautiful after in relation to smooth skin but that Pate did not deliver such results

1.3.3. Pate was granted summary judgement on both claims Informed Consent: on that basis that Mills signed consent forms and could not prove that procedural information was withheld from her Breach of Warranty: on the basis that it was another way for Mills to sue for negligence

1.3.4. Mills appealed

2. Issue

2.1. Whether Mills has enough evidence that Pate failed to disclose pertinent procedural information to constitute breach of duty

2.2. Whether Pate's promises of beautiful results/failure to deliver is considered a health care liability claim or if it is separate from the original negligence claim

3. Rule of Law

3.1. Breach of Duty

3.1.1. Diversion from the accepted standard of care

3.1.2. Informed Consent within the context of this case, the failure to disclose possible risks, adverse effects, and complications of a surgical procedure

3.2. Breach of Express Warranty

3.2.1. Misrepresentations regarding procedural results in an attempt to sway a patient to agree to the procedure within the context of this case, the surgeon promising better results that delivered

3.2.2. Sorokolit v. Rhodes, 889 S.W.2d 239 (Tex. 1994) legal precedent used in Mills v. Pate surgeon promised a specific result for breast surgery but did not deliver court decided that the breach of express warranty claim was not related to negligence and verdict was for the plaintiff

3.3. Medical Liability and Insurance Improvement Act

3.3.1. TEX.REV.CIV.STAT. art. 4590i Texas civil statute

4. Analysis

4.1. Informed Consent

4.1.1. Court adhered to conditions set forth in art. 4590i Plaintiff must prove both that they would not have gone through with the procedure had everything been properly disclosed AND that there was an injury caused by the untold risk

4.1.2. Factual considerations Mills signed all consent forms prior to surgery as well as the informative brochure consent form on day of second surgery included disclaimer about imperfections and unsatisfactory results post-surgery Pate's office notes indicated all information was discussed during consultation

4.1.3. Pate argued that there was not enough evidence put forth by Mills to indicate neglect or breach of duty

4.1.4. Mills argued that had she known all risks and possible additional procedures ahead of time, she would not have gone forth with surgery with Pate

4.2. Breach of Express Warranty

4.2.1. The court considered conditions in art. 4590i Breach of Warranty must be separate from the original negligence claim i.e. the unwanted results were not cause by a breach of duty but were merely misrepresented

4.2.2. The court also used the precedent set by the Sorokolit case

4.2.3. Factual considerations Pate's statements to Mills during the consultation about what her surgical results would be that she was a good candidate, that her skin tone was suitable, and that she would be beautiful

4.2.4. Pate argued that the additional claim was an attempt by Mills to recover for her failed negligence claim

4.2.5. Mills argued that the breach of express warranty was separate from a breach of duty on Pate's part

5. Conclusion

5.1. Informed Consent

5.1.1. The court upheld original decision

5.1.2. Found that the plaintiff did not have enough evidence to show there was a breach of the standard of care

5.2. Breach of Express Warranty

5.2.1. The court found that there was enough evidence to indicate that Pate's assertions to Mills were a separate issue from the original negligence claim

5.2.2. The court found that Pate's results claims were "the basis for the parties' bargain for the first surgery" Mills v. Pate, 225 S.W.3d 277,288 (Tex. App. 2006)

5.2.3. The court granted Ms. Mills appeal

6. Impact

6.1. Key v. Viera, No. 01-07-00587-CV, 2009 WL 350602, at *1 (Tex. App. Feb. 12, 2009)

6.1.1. Negative use

6.1.2. Plaintiff claimed that the defendant guaranteed specific cosmetic surgical results but did not deliver

6.1.3. Court concluded that the defendant's statements regarding results were not gaurentees but "general assertions"

6.2. Hunsucker v. Fustok, 238 S.W.3d 421, 424 (Tex. App. 2007)

6.2.1. Negative use

6.2.2. Defendant agreed to perform breast surgery on Plaintiff in a specific way, avoiding the nipple area Defendant then performed the surgery in the nipple area anyway

6.2.3. Plaintiff claimed that she had lost feeling in nipple area after surgery

6.2.4. Court concluded that this case was different from Mills v. Pate in that the surgeon did not promise a specific result but that he would perform the surgery in a specific way

7. Importance

7.1. Health care professionals may want to take into consideration the Mills ruling when drafting informed consent forms

7.1.1. i.e. including as much information regarding possible risks, complications, etc. as would be reasonable

7.2. Health care professionals may want to consider both Mills and Sorokolit when discussing surgical outcomes with patients

7.2.1. i.e. providing some kind of disclaimer that expected results are not guaranteed

7.3. Cosmetic surgeons might benefit from including prior patient reviews and comments with their pictures to make more complete portfolios and prove that pictures are from actual previous clientele, more acurately representing the skill of the surgeon

8. Influence

8.1. More specific informed consent forms signed the day of surgery

8.2. It is typical practice now that nurses and physicians go over the consent forms with patients and both physician and patient sign

8.2.1. prevents patient from signing a form they didn't read

8.2.2. allows for the physician to answer any questions that patient may have about content in the form