Mills v Pate

1. Facts

1.1. Sept 29,1999 First appointment with Dr. Pate. Physician documentation states he reviewed the risks and benefits of the surgery, a possible need for a second surgery. Mills denies the conversation took place.

1.2. December 2, 1999 First liposuction surgery was performed after patient signed a consent outlining the risks of the surgery. Mills follows all post op instructions. Three months later Mills notices irregularities in her skin. She has rolls under her right breast and sagging of the skin on her thighs.

1.3. After six months the rolls and sagging continued even though swelling was gone. Dr. Pate agreed to do a thigh lift and touch up the lipo in her abdomen for the price of the thigh lift.

1.4. January 9, 2010 Mills signed a second consent and underwent a second surgery including a thigh lift and repeat liposuction of the flank. The risks described on the consent included dissatisfaction of the result, possible need for further revision and poor wound healing, recurrence of the original condition and uneven contour.

1.5. Ms Mills continued to have rolls and sagging after the second surgery. She expressed unhappiness with the second surgery and sought a second opinion. Dr. Miller referred her to Dr. Gilliland who reported that fixing the issues would require several surgeries. She underwent a corrective surgery by Dr. Gilliland and was satisfied with that surgery. Dr. Gilliland told her that Dr. Pate's treatment had been inadequate.

1.6. On January 23, 2002 Ms Mills informed Dr. Pate that she intended to sue him. On January 23, 2003 Ms Mills filed the suit.

2. Issue

2.1. Issue #1. Did Dr. Pate adequately inform the patient of the risks and benefits of the first surgery

2.2. Issue #2. did Dr. Pate adequately inform the pateint of the risks and benefits of the second surgery

2.3. Issue#3. Did Dr. Pate commit a breach of express warranty by stating she was an excellent candidate for the surgery and that she would look beautiful with smooth skin without ripples, bulges or bags

3. Rule of Law

3.1. For the first surgery Ms Mills claimed lack of informed consent regarding the side effects and possible requirement of a second sugery. Statute of Limitations: Dr. Pate suggested that the suit was filed beyond the statute of limitations and therefore was not valid

3.2. Ms Mills suggested that the Fraudulent concealment was at play in preventing her from filing before the deadline on Statute of Limitations for the first surgery.

3.3. Regarding the second surgery Ms Mills claims improper informed consent. She signed inform consent for the surgery on January 16, 2003 "specifically disclosed the following 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." 1

3.4. Ms Mills also used Breach of warranty as a basis for her law suit because the physician had told her she would look beautiful etc.

4. Application

4.1. Regarding the first surgery Ms Mills did not provide evidence that there was Fraudulent concealment and the court found that the statute of limitation was at the time of signing the consent. She new that the rippling was not swelling within 6 months of the surgery and could have filed a law suit at that time.

4.2. Regarding the second surgery lack of informed consent, "She has no evidence of duty, breach, causation, or harm relating to the touch-up liposuction and thigh lift. Further, the injury she complains of, the abdominal rippling is dissatisfaction with cosmetic appearance and uneven contour, which were risks that were expressly disclosed to her".1

4.3. Physicians are responsible for what they promise a person. Ms Mills suggested that a breach of warranty existed because of the statements of how beautiful she would be. Dr Pate argued that for a breach of warranty to exist, the physician must place it in writing, which he did not do.

5. Conclusion

5.1. The issue of informed consent regarding the first surgery was negated because the court held that the statute of limitations began on the day she signed the consent and that the statute of limitations had expired

5.2. The court found that the appellant did not demonstrate that the physician had provided inadequate informed consent for the second liposuction

5.3. The court found that the lower court erred in finding for summary judgement regarding the express warranty claim and remanded the case back to the lower courts to be tried on the evidence.

6. reference: