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

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Mills v. Pate, 225 S. W. 3d 277 (2006) by Mind Map: Mills v. Pate, 225 S. W. 3d 277 (2006)


1.1. Parties

1.1.1. Jocelyn Mills, Appellant/Patient

1.1.2. Dr. John Pate, MD., Appellee/Physician

1.2. What Happened?

1.2.1. Sept. 29th, 1999: Ms. Mills has her first consolation with Dr. Pate Ms. Mills choses Dr. Pate because he advertises he is board certified and an expert in liposuction Ms. Mills tells Dr. Pate that see wants the fat bulges removed from her abdomen, hips, and thighs. Dr. Pate tells the patient she will look beautiful afterwards and his staff shows Ms. Mills pictures of post procedure patients with smooth looking skin. Dr. Pate documents in his office visit notes that he explained the procedure, incisions, risks, and complications. He he documented that long term results may require a small crescent shaped tucked under the abdomen or medial thigh lift because ms. Mills skin quality was fair. Ms. Mills alleges that she was not notified of the possible risks of the procedure. She was given a brochure, which she read and signed.

1.2.2. Nov. 17th, 1999: Ms. Mills signs informed consent and a permission to perform surgery. The consent states: Usually, only one treatment is necessary to improve body contours Only 4-5% of patients will require a second procedure in 6 months to maximize cosmetic benefit Possible side effects from the liposuction procedure were listed as: discomfort, bruising, pigment change, scarring, swelling for up to six months. Dr. Pate conceded that the consent form did not state that the quality of Ms. Mill's skin will not change and that she may have ripples, indentations, or abdominal abnormalities after the liposuction.

1.2.3. December 2, 1999: Dr Pate preforms liposuction on Ms. Mill's abdomen, hips, thighs, and flanks.

1.2.4. 4 months after the procedure Ms. Mills started to notice irregularities in her skin. She was told by Dr. Pate's staff not to worry and that this was normal up until 6 months

1.2.5. After 6 months, Ms. Mills tells Dr. Pate she is unhappy with her results. Dr. Pate states that if Ms. Mills pays him to perform a thigh lift, he will perform a second liposuction

1.2.6. Jan. 9th, 2001: Ms. Mills signs informed consent for the second surgery.

1.2.7. Jan 16th 2001: Ms. Mills signed consent for lower abdominal bilateral hip flank liposuction and the thigh lift. the consent form for the second surgery specifically disclosed the risks of: “dissatisfaction with cosmetic results ... possible need of future revision to obtain improved results, poor wound healing, recurrence of the original condition, and uneven contour.” Again, Dr. Pate nor his staff talked to Ms Mills about the risks of the procedure.

1.2.8. Aug. 30, 2001: Ms. Mill's has her last appointment with Dr Pate after expressing continued displeasure with her results Dr. Pate tells Ms. Mills that she should have paid him to do an abdominoplasty. Although he indicated he did not think this was necessary at her first appointment.

1.2.9. A month later, Ms. Mills is referred to Dr. Gilliland by Mr Miller, another plastic surgeon. Dr Gilliland specializes in body contouring Dr. Gilliland performed an abdominoplasty and body lift, which included re-doing the thigh lift. Ms. Mills was satisfied with the results of Dr. Gilliland’s work. If Ms. Mills had been told at her initial consult with Dr. Pate that a body lift was going to be required in order to achieve the results she wanted, she would not have had the procedure.

1.2.10. Jan. 23, 2002: Ms. Mills files a malpractice claim against Dr. Pate. Ms. Mills alleged: Dr. Pate was negligent by failing to properly warn and obtain her informed consent with respect to the probable outcome of the liposuction procedures and the need for future treatment Dr. pate was also negligent by causing and failing to correct the abdominal irregularities Breach of expressed warranty


2.1. Is there sufficient evidence to support that informed consent was not obtained?

2.2. Is there sufficient evidence to prove Breach of Express Warranty?

2.3. If a breach or tort occurred, when did it occur and does if fall under the statute of limitations?

2.4. Did Dr. Pate know a wrong occurred, have a purpose for concealing the wrong, and concealed the wrong from the patient.


3.1. Informed Consent

3.1.1. TEX.REV.CIV.STAT. art. 4590i, section 6.02 Recovery may be obtained only if the physician fails to disclose the risks or hazards that could influence a reasonable person to make a decision to give or withhold consent. The plaintiff cannot recover for negligence under the theory of informed consent unless he or she proves both that he or she would not have consented to treatment had he or she been informed of the undisclosed risk. The plaintiff must also prove that he or she was injured by the occurrence of the risk of which he or she was not informed. Precedent Case: Hartfiel v. Owen,

3.2. Fraudulent Concealment

3.2.1. Requires more than evidence that the physician failed to use ordinary care.

3.2.2. The plaintiff must show the health-care provider knew a wrong occurred, had a purpose for concealing the wrong, and concealed the wrong from the patient.

3.3. Statute of Limitations

3.3.1. TEX.REV.CIV.STAT. art. 4590i, § 10.01. The statute of limitations begins to run on one of three possible dates: (1) the date of the occurrence of the breach or tort; (2) the last date of the relevant course of treatment; or (3) the date of the hospitalization. The plaintiff may not choose the favorable date that falls within the three categories

3.4. Breach of Express Waranty

3.4.1. TEX.REV. CIV.STAT. art. 4590i, § 1.03(a)(4) A cause of action against a health care provider based on a claimed departure from an accepted standard of medical care, health care, or safety of the patient Precent Case: Sorokolit v. Rhodes The statute of frauds requires that an agreement, promise, contract, or warranty of a cure relating to medical care or results thereof made by a physician or health care provider must be in writing and signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him or her.


4.1. Informed Consent

4.1.1. Ms. Mills Had Dr. Pate informed her of the risks, she would have not got through with the surgery. Dr. Pate had failed to adequately disclose information to her as to the second liposuction

4.1.2. Dr. Pate Prior to the second surgery, Ms. Mills signed a consent form which 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." Ms. Mills had no evidence of duty, breach, causation, or harm relating to the touch-up liposuction and thigh lift.

4.1.3. Court Informed consent was signed by Ms. Mills

4.2. Fraudulent Concealment

4.2.1. Ms. Mills' fraudulent concealment claim is based on: 1.) Dr Pate knew that Ms. Mills had abdominal irregularities after the first surgery 2.) Dr. Patel "uneven contour" as a risk in the informed consent for the second surgery, but not the first 3.) Dr. Pate listed irregularities as a potential risk of the surgery, but had reassured Ms. Mills that the her post operative irregularities were from swelling

4.2.2. Dr. Pate He was not trying conceal a wrong and acted within the normal standard of care

4.2.3. Court There was no evidence that when Dr. Pate told Ms. Mills that the irregularities from the first surgery were just swelling, he did so in order to conceal the wrong

4.3. Statute of Limitations

4.3.1. Ms. Mills Ms. Mills filed her medical malpractice suit on January 23, 2003. Alleging that Dr. Pate failed to adequately disclose information to her regarding the two liposuction procedures and if he had disclosed the risks and hazards inherent in the procedures, she would have refused such treatment

4.3.2. Dr. Pate On November 17, 1999, Ms. Mills signed an informed consent form and a permission to perform surgery form for the 1999 liposuction surgery.

4.3.3. Court Dr. Pate performed the first liposuction surgery on Ms. Mills on December 2, 1999. Therefore the date of the alleged breach or tort with regard to the informed consent claims is December 2, 1999

4.4. Breach of Express Warranty

4.4.1. Ms. Mills Ms. Mills alleged that Dr. Pate breached his warranty because made representations to her about the quality or characteristics of his services: (1) she was a suitable candidate for surgery; and (2) after liposuction surgery, she would look beautiful and that she would have smooth skin without ripples, bulges, or bags.

4.4.2. Dr. Pate Ms. Mills' breach of warranty claim was merely an attempt to recast her negligence claims as a breach of contract claim

4.4.3. Court Ms. Mills was not recasting her negligence claims


5.1. Informed Consent

5.1.1. It was concluded that the court agreed that that Dr. Pate did disclose the risks and hazards inherent in the second liposuction procedure, which she complained had not been disclosed to her in the first procedure

5.2. Fraudulent Concealment

5.2.1. The court found there was no evidence that when Dr. Pate told Ms. Mills that the complained-of irregularities from the first surgery were just swelling, he did so in order to conceal the wrong done to her. Therefore Dr. Pate also did not have a fixed purpose to conceal the alleged wrong.

5.3. Statute of Limitations

5.3.1. Because there is no evidence of fraudulent concealment, Ms. Mills' informed consent claims related to the first surgery are barred by the statute of limitations.

5.4. Breach of Express Warranty

5.4.1. The trial courts decision was reversed

5.4.2. It was decided that the trial court erred in granting a no-evidence summary judgment as to Ms. Mills' breach of express warranty claim for the first surgery. Ms. Mills presented some probative evidence to support the elements of her claim. Also, Dr. Pate's affirmative defense under the statute of frauds was an improper basis for granting the no-evidence summary judgment


6.1. Key vs. Viera

6.1.1. Key had a consultation with Viera, a plastic surgeon, to discuss a facelift and liposuction. According to Key, at the consultation appointment, Viera assured her that the liposuction procedure would result in a smooth and flat abdomen, that the facelift would not leave any visible scars, and that she would be very happy with the result or he would do any touch-ups needed at no charge.

6.1.2. On September 26, 2002, Dr. Viera performed Key's liposuction and facelift. At a follow-up appointment on January 20, 2003, Key complained that her face had visible scars, that there was a knot on the right side of her face, and that her abdomen was not smooth and flat as Viera had promised it would be.

6.1.3. Viera did not recommend additional liposuction, but had made other recommendations, which Key did not follow

6.1.4. In 2005, Key asked her new cosmetic surgeon for a second opinion on Viera's claim that a touch-up liposuction would be dangerous and would cause more rippling. The new cosmetic surgeon informed that she could receive a smooth result with additional liposuction treatment.

6.1.5. On September 25, 2006, Key filed a petition alleging breach of contract, common law fraud, and negligent misrepresentation against Viera.Key later filed an amended petition alleging breach of express warranty based on the representations made to her by Viera.

6.1.6. The appellate court affirmed the judgement of the trial court

6.2. Paragon General Contractors v Larco Construction

6.2.1. Paragon was the general contractor for the construction of an office building. Paragon used subcontractors, including Larco to construct the building. Paragon's contract with Larco described the scope of the work. The contracts contained warranty provisions in which the subcontractors warranted their work would be free from defects due to faulty workmanship or materials. The contracts also contained indemnity provisions in which the subcontractor promised to indemnify Paragon from the consequences of the subcontractors' negligence. The owner of the building complained to Paragon that water had penetrated the exterior of the building, resulting in damage to the interior and mold. Investigation of the problem revealed the water penetration was due to the failure to install flashing around the windows and improper caulking of the windows. Paragon sued Larco for breach of contract, breach of warranty, negligence, indemnity, and contribution. The breach of contract claim asserted Larco breached by not defending and indemnifying Paragon as required by the contract and by not remedying their defective and faulty work. It appears the breach of warranty and negligence claims were based on Larco having duties to install flashing and properly caulk the windows


7.1. This case stresses the importance of both documenting and discussing all of the risks associated with a procedure, no matter how low the risk or how skilled the surgeon

7.2. Do not make promise of a cure or specified result unless it can be achieved with absolute certainty to the point where you would put it in writing.


8.1. Obtaining informed consent includes discussing all of the risks associated with a procedure, no matter how low the risk or how skilled the surgeon and listing those risks on the consent form. Documentation of the conversation should also be made.

8.2. More physicians nowadays have chaperons when seeing patients as a second method of witnessing conversations and exams

8.3. Due to the association nicotine with poor surgical outcomes. Most elective surgeries require routine nicotine testing. Patients must be nicotine free for at least to months for the test to be negative. If the test is positive surgeries are cancelled.