1. Issue before the court
1.1. Whether there was sufficient evidence to support Judge Peter Peca’s physician summary judgement verdict in Ms. Mills’ malpractice suit alleging claims for negligence, lack of informed consent, and breach of express warranty?
2. Facts
2.1. Parties
2.1.1. Joyceline Mills - 46 y/o female
2.1.2. Dr. John Pate, M.D.
2.2. What happened
2.2.1. 1999 Ms. Mills decided that she wanted to have liposuction performed. Made a consultation appointment with Dr. Pate after hearing a radio advertisement that he was a board certified expert in liposuction and could change one’s life
2.2.2. September 29, 1999 Ms. Mills made a consultation appointment with Dr. Pate
2.2.2.1. Me. Mills expressed that she wanted fat bulges removed from her abdomen, hips and thighs
2.2.2.2. Dr. Pate’s staff showed post-procedural photographs of other patients
2.2.2.3. Dr. Pate said all the bulges in her skin and sags in her skin will be taken care of through the liposuction procedure.
2.2.3. Her version 👩🏽💼
2.2.3.1. Dr. Pate Told her that she was going to be beautiful after having liposuction which meant smooth skin and no pooches
2.2.3.2. Dr. Pate mentioned that she would be beautiful in reference to her bags and sags being be gone
2.2.3.3. Dr Pate said Ms. Mills skin tone was beautiful or wonderful skin
2.2.3.4. Miss Mills stated that Dr. Pate never told her about any kind of possible risks of the procedure he gave her a procedure to read and sign, which she signed. Miss Mills indicated Dr. Pate never told her about the potential need for further procedures, never told her that there might be rippling or other irregularities of her skin following liposuction and never discussed any possible adverse effects with her specifically she was never told that because of her age and her history of smoking that she could have sagging skin or ripples
2.2.3.5. Ms. Mills followed all of Dr. Pate’s post-op instructions. Expected swelling post-op. She noticed swelling and some bruising the first week after surgery
2.2.3.6. Begin to notice irregularities in her skin after the swelling subsided 3 to 4 months after the procedure she had two distinct roles under her right breast in the upper abdomen area and the skin on her thighs was sagging in the front and inside down To her kneecaps
2.2.3.7. Within six months after Ms. Mills surgery, she complained about irregularities. Dr. Pate told her not to worry because Swelling was going to go away after six months. After six months. It was becoming more apparent that her irregularities were not just swelling.
2.2.3.8. Miss Mills expressed her concerns to Dr. Pate’s staff she was very cautious And delicate with how she expressed her concerns to them because she was concerned he would not repair it
2.2.3.9. Six months post op she expressed her dissatisfaction and the irregularities with the abdominal rolls and Dr. Pate told her to pay him to do the thigh lift and she would do the touch up liposuction procedure for free, Specifically The abdomen rolls and the bulge on her left hip
2.2.3.10. Dr. Pate never told her prior to the first liposuction procedure that she might need a thigh lift although Miss Mills recalled that the disclosure mentioned it
2.2.4. His Version 👨🏽⚕️
2.2.4.1. Examination notes indicated the following: an explanation of liposuction technique, incision, risks and complications of surgery and anesthesia. The note also indicated that he explained to her long-term results may require a small crescent talked to the abdomen or medial thigh lift because her skin tone was only fair.
2.2.4.2. Ms. Mills was told that the quality of her skin would not change after liposuction and that irregularities frequently occur.
2.2.4.3. Informed consent: Dr. Pate Conceded that the Consent form does not tell the patient that the quality of her skin will not change and that she may have ripples indentations or abdominal abnormalities
2.2.5. November 17, 1999: Ms. Mills signed an informed consent form and a permission to perform surgery form
2.2.5.1. Warning a possible serious complications from surgery
2.2.5.2. Possible side effects of liposuction procedure include discomfort bruising pigment change scarring swelling for up to six
2.2.5.3. Treatment section: only one treatment is necessary to improve body con for us to both my satisfaction as well as patient satisfaction in four or 5% of my patients a touchup procedure following the surgery usually after approximately six months is necessary to maximize the cosmetic benefit. It’s just such a procedure is done at the surgical center I do not charge the patient for the touch up procedure however the surgical center does charge for this procedure in there maybe further aesthetic charges as
2.2.6. December 2, 1999: Dr. Pate performed first liposuction procedure on Ms. Mills yo abdomen, hips, flanks and thighs
2.2.7. Ms. Mills charged for first procedure
2.2.8. Ms. Mills complained 6 months after surgery about irregularities
2.2.9. January 9, 2001: Ms. Mills Find an informed consent form for the second surgery
2.2.10. January 16, 2001: Missing a signed a form consenting to lower of Domino bilateral hips like liposuction and the thigh lift
2.2.10.1. The consent form for the second surgery specifically disclose the following risks: dissatisfaction with cosmetic result possible need for future revision to obtain improve results, poor wound healing, recurrence of original condition and uneven contour. It was Miss Mills understanding that the second liposuction section was just touch up work. Dr. Pate told her that the thigh lift would take care of baggy saggy skin again. Dr. Pate did not talk to her about any risks from the procedure and neither did his
2.2.10.2. Miss Mills felt soreness in the abdomen around the incision of her legs. Miss Mills was unhappy with the second procedure but again was told for several months that it was swelling. Dr. Pate told her she would have smooth skin, no ripples, and Bulges or bags after the second procedure but there was definite bagging on her left thigh, rippling and a bulge on her left abdomen, and a bulge on her right thigh. Her hips were disproportionate
2.2.11. August 30, 2001- Ms Mills had her last appointment with Dr. Pate
2.2.11.1. Dr. Pate told Miss Mills that she should have paid him to do a tummy tuck or an abdominoplasty. He never mentioned to her that she might need such a procedure at the initial consultation Dr. Pate told her that he did not think she would need a tummy tuck
2.2.12. September 2001 - Ms. Mills saw Dr. Miller, a plastic surgeon, he referred her to Dr. Gilliland who specializes in body contouring
2.2.13. October 2001- Dr. Gilliland told Ms. Mills she would need a body lift to correct the irregularities from the liposuction procedure (circumferential incision around the body)
2.2.13.1. Dr. gilliland folder gets that Dr. Pate’s care had been inadequate
2.2.13.2. Post op care would be more extensive than Dr. Pate’s.
2.2.14. Dr. Gilliland performed the abdominoplasty and Ms. Mills was satisfied with the results.
2.3. Procedural history
2.3.1. January 23, 2002: Ms. Mills notifies Dr. Pate’s intent to sue under the Medical Liability and Insurance Improvement Act. She filed suit against Dr. Pate for medical malpractice. Dr. Pate was negligent by failing to properly warn and obtain her informed consent with respect to the probable outcome of the liposuction procedure and the need for future treatment and by causing and failing to correct abdominal irregularities.
2.3.2. Ms. Mills amended her petition to include breach of express warranty claim.
3. Rule of law
3.1. Informed consent
3.1.1. Failure to adequately disclose information about risks and hazards Medical procedure
3.1.2. Physician disclose risks and hazards related to medical procedures and patients sign consent form indicating they understand the information presented
3.1.3. Role of court
3.1.3.1. To determine if the physician neglected to disclose or adequately disclose the risks and hazards involved In medical care or surgical procedure that would have influenced a reasonable person in making a decision to give or withhold consent
3.2. Breach of express warranty
3.2.1. Physician makes a specific promise or an affirmation about a medical result
3.2.2. Physician has made a specific promise and failed to uphold their specific promise leading to patient suit
3.2.3. Role of court
3.2.3.1. Did the patient provide sufficient evidence to support the common law claim of breach of an express warranty.
3.2.4. To determine if there is evidence to support physician was negligent in disclosing risks and hazards, see Informed Consent.
3.3. Negligence
3.3.1. Role of court
4. Analysis
4.1. Court’s analysis of informed consent
4.1.1. Under TEX.REV.CIV.STAT.art.4590i, section 7.02, For healthcare liability claims based on the failure of the position to disclose are adequately to disclose the wrists and hazards involved in the medical care or surgical procedure record by the position, recovery may be obtained only under the theory of negligence in failing to disclose the risk or hazards that could have influenced a reasonable person and making a decision to give or withhold consent. Plaintiff May not recover for negligence under theory of informed consent unless she proves both that she would not have consented to treatment if she had been informed of the undisclosed risk and that she was injured by the currents of the risk of which she was not informed
4.2. Ms. Mill’s argument
4.2.1. Dr. Pate had failed to adequately disclose information to Miss Mills as to the second liposuction and if he had disclose the risks and hazardous inherent in the procedure she would’ve refused such treatment
4.3. Court’s analysis of breach of express warranty
4.3.1. Because of action against a healthcare provider as a healthcare liability claim under the act if it is based on a claim departure from an excepted standard medical care, healthcare, or safety of the patient, whether the action sounds in contract or tort. A cause of action is nothing more than an attempt to recast the malpractice claim if the claim is based on the physicians breach of the excepted standard of medical care.
4.3.2. Dr. Pate me the following representations about her qualities or characteristics of his services she was suitable candidate for surgery after liposuction surgery she would look beautiful in that she would have smooth skin without ripples bulges or bags Dr. Pete’s breach of warranty as expressed in his representation did not conform to the character and quality of service as described and subsequently she was left with irregularities of her skin body after Dr. pay completed to liposuction
4.3.2.1. Sorokolit - Position promises particular surgical results he may be held liable for breach of that express warranty