1. 1. Facts
1.1. Parties
1.1.1. Joyceline Mills
1.1.2. Dr. John Pate, M.D.
1.2. What Happened
1.2.1. Ms. Mills made appointment with Dr. Pate in 1999 for liposuction after hearing Pate's board certification and expertise in "life-changing" liposuction
1.2.1.1. Mills attended 1st consult on September 29,1999 (age 46)
1.2.1.1.1. Pate's version
1.2.1.1.2. Mills' version
1.2.2. Mills signed informed consent form for liposuction surgery on November 17, 1999
1.2.2.1. Consent form listed side effects such as scarring, swelling, pigment change, bruising all up to 6 months and potential serious complications
1.2.2.1.1. Dr. Pate confirmed that form doesn't address skin quality and that there may be indents, ripples, abdominal irregularities post-procedure
1.2.3. Dr. Pate performed liposuction of abdomen, hips, flanks, thighs on December 2, 1999
1.2.3.1. Mills was charged for surgery and followed all post-op instructions
1.2.3.1.1. Pate said to expect swelling, Mills noticed swelling & bruising for 3-4 months, then skin irregularities afterwards
1.2.4. Mills signed informed consent on January 9,2001 for second surgery and form on day of surgery (January 16,2001) for "lower abdominal bilateral hip flank liposuction and thigh lift"
1.2.4.1. Dr. Pate and staff did not talk about procedure risks
1.2.4.2. January 16 consent disclosed risks of dissatisfaction with cosmetics, poor healing, need for future revision
1.2.4.2.1. Mills had second procedure on January 16
1.2.4.3. Mills: Dr. Pate said thigh lift would "take care of saggy skin"
1.2.5. After second procedure: Mills felt sore, swelling, and had saggy skin
1.2.5.1. Mills' version: did not look like she wanted (smooth skin, no bags), had "disproportionate hips," sag rolls moved to left side but did not go away
1.2.5.1.1. Mills claims Dr. Pate said left rolls were swelling
1.2.6. Mills has appointment with Pate on August 30, 2001
1.2.6.1. Pate said "she should have paid him to do a tummy tuck or abdominoplasty"
1.2.6.2. Mills claims Pate never told her she may need this procedure and told her she didn't need a tummy tuck at 1st consult
1.2.7. Mills saw Dr. Miller 1 month after 8/30/2001 visit. Miller says he could fix her complaints (ripping in abdomen and uneven thighs) but refers her to Dr. Gilliland
1.2.7.1. Mills consults with Gilliland 1 month later: he said a body lift is needed to correct irregularities
1.2.7.1.1. Gilliland tells Mills Pate's care and treatment was "inadequate" and educated on extensive post-op care
1.2.8. Dr. Gilliland performed abdominoplasty and body lift - Mills was satisfied with no rolls, thin thighs and body shape, but had a scar
1.2.8.1. Mills notified Pate of intent to sue on January 23, 2002. Mills filed on January 23, 2003 for medical malpractice
1.3. Procedural History
1.3.1. Joyceline Mills filed a medical malpractice suit alleging lack of informed consent, breach of express warranty, and negligence
1.3.1.1. Suit was against Dr. Pate in regards to services of liposuction/thigh lift that were performed by physician on patient
1.3.1.1.1. Original petition did not include breach of warranty and was amended to include this claim
1.3.2. 346th District Court (El Paso County, Peter Peca) granted physician summary judgement
1.3.3. Mills appealed
2. 7. Importance
2.1. Healthcare professionals care about these decisions because it outlines importance of very detailed informed consent forms which are dated and specific to the surgery taking place
2.2. This case also matters because it addresses the difference between neglecting standard of care versus promising results that are not fulfilled
2.3. Informed consent does not account for any verbal claims made by the physician in terms of outcome promises to the patient and physician can be found liable of breaching warranty even if all standards of care are followed
2.4. Breach of Express Warranty is now differentiated from standard medical of care
2.4.1. Physicians may be liable for verbal promises of results
2.5. Healthcare professionals should care about this decision because it also defines the patient-provider contractual relationship
3. 8. Influence
3.1. Physicians are now more cautious in verbiage to the patient about what to expect before a surgical procedure as to avoid "guaranteeing" particular results to the patient
3.2. Healthcare providers must ensure detailed informed consent forms are developed and signed by patients before providing medical care
3.2.1. Hospitals have policies in place for developing and obtaining informed consent forms but physicians should also verbally explain procedure to the patient
3.3. Medical Malpractice: breach of express warranty can be used as a valid legal argument in medical malpractice claims
4. 2. Issue before the Court
4.1. Is there sufficient evidence to show that Dr. Pate "failed to adequately disclose" risks and hazards to Mills prior to second liposuction?
4.2. Is there sufficient evidence to show that Dr. Pete promised results prior to surgeries 1&2 that were not received post-procedure?
4.2.1. Can a physician be held liable for breach of express warranty if they promise a result but still follow standard of care?
5. 3. Rule of Law
5.1. Express Warranty
5.1.1. Express Warranty means a "seller's" promise or guarantee to the recipient is reliant of the date of purchase/service. Patient can sue if promised results were not met.
5.1.2. If a specific surgical result is promised by a physician, the physician may be liable for breach of express warranty. This is if the breach was not based on a breach of the accepted standard of medical care.
5.1.3. Cause of Action claim and Healthcare Liability Claims
5.1.3.1. Cause of Action means a provider departed from medical standard of care or safety (in contract or tort)
5.1.3.1.1. This claim applies to if the act (or failure to act) was a required prat of the services. If found that claim is based on standard of care breach, then this cause of action claim is just to "recast" malpractice claim
5.2. Informed Consent
5.2.1. If you need treatment, provider should provide you with all information needed to make an informed decision on treatment and whether to accept or refuse
5.2.2. TEX.REV.CIV.STAT art. 4590i, section 6.02 recovery from failure to disclose risks will not happen unless patient proves they would not have consented to treatment if the risks were disclosed
5.3. Physician-Patient Contract
5.3.1. Valid contract consists of promise to treat and diagnose in exchange of acceptance of patient by promising to pay
5.3.1.1. Will last for extent of illness and can be terminated: when patient dies, mutual agreement to terminate, if patient dismisses provider, or if physician ends relationship
5.3.1.1.1. Physician termination: must be a formal notification and must refer patient elsewhere
6. 4. Analysis/Application
6.1. Informed Consent
6.1.1. Plaintiff
6.1.1.1. Mills claimed Pate failed to disclose risks/hazards before second procedure, which would have impacted her decision to have the surgery
6.1.1.1.1. Mills was already experiencing symptoms that she signed consent for before second surgery prior to that consent
6.1.2. Defendant
6.1.2.1. "No Evidence Motion:" Pate claimed Mills lacked evidence as to "every element of informed consent" for the 1/2001 procedure
6.1.2.1.1. Claimed Mills had no evidence of "duty, breach, causation, harm" for both procedures (liposuction and thigh lift)
6.1.3. Court
6.1.3.1. Mills' second consent form did include dissatisfaction of cosmetics, possible revision need, uneven skin contour
6.1.3.1.1. Though Mills claimed that when she signed this risk disclosure she was already experiencing these symptoms, court claims that risks were disclosed
6.1.3.2. Physician-Patient contract is if physician promises to diagnose and treat while patient promises to pay
6.1.3.2.1. Outcomes are not covered in this contract, but informed consent does
6.2. Breach of Express Warranty
6.2.1. Plaintiff
6.2.1.1. Trial court made a mistake in granting summary judgement to this common law claim
6.2.1.1.1. Claimed Dr. Pate falsely told her she was a viable candidate for procedure and would "look beautiful with smooth skin and no bags" after surgery
6.2.2. Defendant
6.2.2.1. "No Evidence Motion:" Mills had no evidence to support breach
6.2.2.1.1. Pate claims that Mills was trying to recast negligence claims as a breach of warranty
6.2.3. Court
6.2.3.1. Mills amended original suit to include this claim
6.2.3.1.1. Mills presented enough evidence for her claim, with reference to Sorokolit and not needing to meet requirement of failing to meet standard of care
7. 5. Conclusion
7.1. Dr. Pate breached Express Warranty
7.1.1. Appeals Court ruled in favor of Plaintiff
7.2. Dr. Pate did not breach Informed Consent
7.2.1. Appeals Court ruled in favor of Defendant
8. 6. Impact
8.1. Belma Key, Belma Keykurun v. Hector M. Viera, MD. 01-07-00587-CV (TEx. App. 2009)
8.1.1. Doctor claimed face lift and liposuction results
8.1.1.1. Plaintiff entered into a contract for the surgery and verbalized concerns about informed consent details about "adverse outcomes"
8.1.1.2. Doctor told Plaintiff that they will see results, had the surgery, and Plaintiff was dissatisfied
8.1.1.2.1. Plaintiff asked for correction with another surgery
8.1.2. Plaintiff filed Breach of Express Warranty due to the promises given that weren't fulfilled post-procedure
8.1.3. Defendant said that Plaintiff's claim was actually malpractice and negligence (barred by statute of limitations)
8.1.3.1. Claimed no evidence of promising outcomes and not fulfilling them
8.1.4. Trial Court ruled in favor of Plaintiff, Plaintiff appealed, ruling was upheld
8.2. Hunsucker v Fustok 238 S.W.3d 421 (Tex.App.2007)
8.2.1. Plaintiff reached out to Defendant for breast augmentation surgery as a correction from a previous procedure
8.2.1.1. Defendant agreed to Plaintiff's request for specific techniques to be used during procedure and then Defendant performed the procedure
8.2.1.1.1. Plaintiff was not happy with results after the procedure and Defendant did not use techniques requested
8.2.2. Plaintiff sued for breach of contract and neglicence
8.2.2.1. Ruled in favor of Defendant, cited Mills case. Plaintiff appealed, ruling was upheld