1. Facts
1.1. Parties
1.1.1. Joyceline Mills
1.1.2. Dr. John Pate, M.D.
1.2. Events
1.2.1. Mills went to Dr. Pate to undergo plastic surgery, liposuction, on Sept 29, 1999
1.2.1.1. First procedure performed Dec 2, 1999
1.2.1.1.1. After several months, Mills noticed skin sagging under her right breast and thighs. She approached Dr. Pate who agreed to perform a second procedure (thigh lift) and to "touch it up", referring to the first surgery outcome.
1.2.1.2. Informed consent was signed, and it disclosed risks. Mills states she was never verbally told about these risks.
1.2.1.3. Consisted of liposuction on abdomen, hips, thighs and flanks.
1.2.2. On January 23, 2002 Mills notifies Dr. Pate of her intent to sue under the Medical Liability and Insurance Improvement Act.
1.2.2.1. Mills alleged that she never received appropriate warning about the possible outcomes and therefore there was no informed consent.
1.2.2.1.1. The 346th District Court of El Paso County, Texas granted summary judgement in favor of Dr. Pate.
1.2.2.1.2. Dr. Pate argued that the informed consent claims were barred by the 2 year statute of limitations.
1.2.2.1.3. He also filed a "no-evidence" motion for the rest of the claims.
1.2.2.2. She also alleged she would have never undergone the initial procedure if she knew she would need an abdominoplasty
1.2.2.3. She later amended the petition to include a breach of express warranty claim
1.2.3. She actually files suit on Jan 23, 2003
1.3. Procedural history
1.3.1. District court granted summary judgment in favor of Dr. John Pate
1.3.2. Ms. Joyceline Mills appealed this decision
1.3.3. Case went to the Court of Appeals of Texas, El Paso
2. Issue before the Court
2.1. Whether the District Court erred in granting summary judgement because of statute of limitations, because the no-evidence claim was too general and conclusory, because the issues of informed consent and breach of warranty were not properly addressed
3. Rule of Law
3.1. TEX.REV.CIV.STAT. art. 4590i
3.1.1. section 10.01
3.1.1.1. "no health care liability claim may be commenced *285 unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed"
3.1.2. section 6.02
3.1.2.1. "recovery may be obtained 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'."
3.1.3. section 1.03
4. Analysis
4.1. Mills alleged that the summary judgement based on the statue of limitations was erroneous
4.1.1. The law in Texas, at the time, established a clear 2 year timeframe in which a patient could sue a physician for malpractice
4.1.2. It establishes the timeline as begining in one of 3 dates:
4.1.2.1. The date the tort occured
4.1.2.2. The last day of treatment
4.1.2.3. The day of the hospitalization
4.1.3. Mills argued that she had ongoing treatment through her second surgery and until Aug 2001 when she saw Dr. Pate last
4.1.3.1. The law clearly establishes the dates, and the patient cannot arbitrarily choose which date is convenient.
4.1.3.1.1. In this case, the date of the first surgery was the day the tort occurred and that is well established as Dec 2, 1999.
4.1.4. Millls also argued fraudulent concealment in that Dr. Pate never told her about the complications of her surgery
4.1.4.1. However, it is explicit that Mills knew that her first surgery had gone wrong after six months. This prompted her to seek Dr. Pate several times after the initial surgery.
4.1.4.1.1. Since it was established that she knew about the outcome, then fraudulent concealment does not apply .
4.2. Mills argued that the no-evidence claim was general and conclusive and therefore should not have been granted
4.2.1. This rule exists to "provide the nonmovant with fair notice of the matters on which it must produce some evidence" (Community Initiatives, Inc. v. Chase Bank of Texas, 153 S.W.3d 270, 279)
4.2.2. Therefore, if the motion is too general, then it becomes invalid.
4.2.2.1. The no-evidence motion presented by Dr. Pate was sufficiently specific in the topics it addressed.
4.2.2.1.1. From the motion: Plaintiff lacks evidence of every element of informed consent to the January 2001 procedure. 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."
4.2.2.2. Given the specific issues listed, the argument of generality and conclusiveness fails
4.3. Finally, Millls argued that she had material evidnece about the lack of informed concent and breach of warranty
4.3.1. Informed consent
4.3.1.1. Mills alleged that in the second surgery, Dr. Pate failed to inform her of the risks and that if she would have known, she would have forgone the procedure
4.3.1.1.1. Mills signed an inform consent form that spelled out all the risks she claims were not informed. Whether or not these had happened in the first surgery or not, or whether Dr. Pate had promised results is immaterial to the argument.
4.3.2. Breach of express warranty
4.3.2.1. In this case, the claims made by Dr. Pate about the expected outcomes of the surgery are separable from the issues of medical standard of care
4.3.2.1.1. The law sees medical standard of care in a different light than promises made by a physician to expected outcome (see Sorokolit)
4.3.2.1.2. Mills successfully argued that Dr. Pate promised her results that were not delivered after the first or second surgery.
5. Conclusion
5.1. The Court of Appeals of Texas, El Paso upheld in part, reversed in part and remanded case to trial
5.1.1. Appeals court upheld the first two sections about the statute of limitations and the no-evidence claim
5.1.2. It reversed the ruling for breach of express warranty and remanded case back to district court
6. Impact
6.1. Atrium Cos. v. ESR Assocs., Inc., CIVIL ACTION NO. 11-CV-1288 (S.D. Tex. Sep. 18, 2012)
6.1.1. Case between a manufacturing company Atrium (plaintiff) and a software company ESR (defendant). Defendant requesting summary judgement on a breach of warranty claim by the plaintiff because they "made representations to [Plaintiffs] about the quality or characteristics of the[ir] services... that became part of the basis of the Master Agreement...". Court denied the request of summary judgment in part citing Mills v Pate and stating that the claims made by the plaintiff do stand as a breach of warranty. Interesting that this ruling extends outside medical issues.
6.2. Methodist Hosp. v. Zurich American Ins. Co. 329 SW 3d 510 - Tex: Court of Appeals 2009
6.2.1. Similar to our case, this case involved Methodist hospital and Zurich insurance company. It was about failure by the part of Zurich to pay workers' compensation claims to Methodist employees. The court granted summary judgement on breach of express warranty action against Zurich. In this case, the appellate court upheld the ruling, citing in part Mills vs Pate as a standard to meet breach of express warranty. In this case, the was not sufficient evidence that Zurich had breached this warranty.