1. Facts
1.1. Parties
1.1.1. Dr. Pate, Appellee
1.1.2. Mrs. Mills, Appellette
1.2. Where
1.2.1. Court of Appeals El Paso
1.3. What happened
1.3.1. Dr. Pate performed liposuction and a thigh lift in 1999 and later a second surgery in 2001
1.4. Procedural history
1.4.1. Heard in the 346 District Court, El Paso County by Peter Peca. A medical malpractice suit brought against Dr. Pate for alleged negligence , lack of informed consent, and breach of express warranty for cosmetic surgical procedures. Two surgeries were preformed liposuction and a thigh lift. The Court ruled in favor of the defendant and the plaintiff appealed.
2. Issues before the court
2.1. Did Dr Pate provide informed consent to Mrs. Mills?
2.1.1. Was she notified of the risks and possible outcomes?
2.2. Breach of Express Warranty
2.2.1. Did Dr Pate provide a service consistent with his implied description of that service
3. Application
3.1. Breach of Express Warranty
3.1.1. Did Dr Pate provide a service consistent with his implied description of that service
3.1.1.1. Breach of Express warranty: Mrs. Mills claims that the quality of care and services did not equate to the quality described by Dr. Pate. Dr. Pate in the lower court had presented no evidence but claimed that the breach of express warranty was an attempt to claim malpractice under breach of duty or implied contract and should be dismissed on those grounds.
3.2. Informed Consent
3.2.1. Did Pate meet his duty
3.2.1.1. Principle of Informed Consent. Were the risks and possible outcomes of surgery addressed and understood by the patient Mrs Mills.
3.2.1.1.1. Court ruled in the second procedure that informed consent was established. That risks and outcomes were adressed
4. Rule of Law
4.1. TEX.R.CIV.P. 166a(c), (i)
4.1.1. Was there material evidence or supporting facts for the claims?
4.2. Medical Liability and Insurance Act
5. Conculsion
5.1. Appeals court reversed a partial finding of the lower court
5.1.1. The court partially reversed the lower court’s ruling and referred the case for retrial based on breach of express warranty. In consideration of rule TEX.R.CIV.P. 166a(c), (i) the found material evidence that the outcome promised to Mrs Mills was inconsistent with the deliverable.
6. Impact
6.1. KEY v. VIERA, Court of Appeals of Texas, First District, Houston.
6.1.1. establishment of express warranty
6.1.2. patient-client relationship
6.2. 246 S.W.3d 306 - GOMEZ v. PASADENA HEALTH CARE MANAGEMENT, Court of Appeals of Texas, Houston (14th Dist.).
6.2.1. Legislature repealed the Medical Liability Act and replaced it with Chapter 74 of the Civil Practices and Remedies Code. Id. at n. 2.