1. FACTS
1.1. Parties
1.1.1. Appellant: Joyce Mills
1.1.2. Appellee: Dr. John Pate
1.2. Events
1.2.1. Mills consents to undergo liposuction/thigh lift 12/2/1999
1.2.2. Dr. Pate promises wonder outcomes
1.2.3. Outcome is poor ( sagging skin) and Mills consents to another reparative surgery 1/16/2001 in which dissatisfaction with post-operative results and risk of additional surgeries is stated on consent forms
1.2.3.1. Second outcome is also poor and Mills seeks input of specialist Dr. Gillard who performs a more extensive constructive surgery with good results
1.2.3.1.1. Mills sues Dr. Pate for medical negligence and breach of warranty.
1.3. Procedural History
1.3.1. 346th Distric Court of El Paso granted the physician summary judgement which was appelled by plantiff.
1.3.1.1. Court of Appeals of Texas 06/1/2006 hears rappelled case
2. ISSUE
2.1. Whether Dr. Pate is liable for medical negligence due to the lack of informed consent regarding disclosures related to unfavorable procedural outcomes including sagging skin and the need for additional surgeries.
2.2. Whether Dr. Pate is liable for breach of express warranty due his promises of excellent post-surgical outcomes.
3. Rule of Law
3.1. Principle Cause of Action
3.1.1. Neglience: Unintentional failure to live up to accepted standards of behavior. In this case the failure to provide information about dissatisfactory outcomes that are adequate for them to refuse the procedure.
3.1.2. Breach of Warranty: Contractually, physician carry liability when they promise surgical results, patient has paid for the procedure, and the end result is not as represented.
3.2. Precedents
3.2.1. Hartfiel v Owens- Court of Civil Appeals of Texas, El PasoJul 22, 1981.
3.2.1.1. Plaintiff cannot recover for negligence under informed consent unless he proves that he or she would not have consented to the procedure if they had known about the risks and was injured by the occurrence of this risk.
3.2.2. Rhodes versus Sorokolit: Rhodes v. Sorokolit, 846 S.W.2d 618 (Tex. App. 1993)
3.2.2.1. Where a physician promises particular surgical results he may be held liable for breach of express warranty.
4. Analysis
4.1. Petitioner
4.1.1. Dr. Pate did not inform her of the possibility of dissatisfaction with her comestic procedure or the need for subsequent surgeries. Although the consent for the second surgery described these risks, she argues that her pain and suffering was already present after the first surgery. She required a more extensive surgery by a second surgeon to correct the damage.
4.1.2. Dr. Pate is guilt of breach of warranty as he promised a perfect surgical outcome after her first visit. They had a contractual agreement and she had paid him for the service
4.2. Respondent
4.2.1. Dr. Pate performed duties well within professional standards in this case and was not medically negligent. Signed documents particularly for the second corrective surgery that Ms. Mills returned for stated all required warnings.
4.2.2. Ms Mills was invoking additional Breach of Contract as a result of not having a case for negligence.
4.3. COURTS
4.3.1. Second consent form clearly states the risk of “dissatisfication with cosmetic result” and need for future revision.There was no evidence that Dr. Pate failed to obtain Ms. Mills’ informed consent to the second surgery.
4.3.2. "There is some evidence that Dr. Pate’s particular representations were actionable as an express warranty claim in that his representations did not conform to the character and quality of the services promised, they formed the basis of the parties’ bargain for the first surgery, and injury resulted to Ms. Mills".