1. Facts
1.1. Ms. Mills hear Dr. Pate's ad on the radio stating he was board certified to perform liposuction and could change one's life
1.1.1. Ms. Mills consulted with Dr. Pate and told him she wanted to remove fat bulges from her abdomen, hips, and things.
1.1.1.1. Ms. Mills recalls Dr, Pate told her she was going to be beautiful after liposuction, which she understood to mean smooth skin and no pooches.
1.1.1.1.1. Dr. Pate showed her post-procedure photos of patients with smooth skin and no saddlebags. Dr. Pate told her that those bulges and sags in her skin would be taken care of.
2. Issue
2.1. Whether Dr. Pate failed to adequately disclose information to her as to the second liposuction and if he had disclosed the risks and hazards inherent in the procedure, she would have refused such treatment.
2.2. And whether the trial court erred in granting summary judgment as to her common law claim for breach of express warranty.
3. Rule
3.1. Informed consent
3.1.1. For health care liability claims based on the failure of the physician to disclose or adequately to disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician, 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.”
3.1.1.1. TEX.REV.CIV.STAT. art. 4590i, section 6.02
3.1.2. A plaintiff may not recover for negligence under theory of informed consent unless he proves both that he would not have consented to treatment had he been informed of the undisclosed *289 risk and that he was injured by the occurrence of the risk of which he was not informed).
3.1.2.1. TEX.REV.CIV.STAT. art. 4590i, § 6.024, see also Hartfiel v. Owen, 618 S.W.2d 902, 905 (Tex.Civ.App.-El Paso 1981, writ ref’d n.r.e.)
3.2. Breach of express warranty
3.2.1. A cause of action against a health care provider is a health care liability claim under the Act if it is based on a claimed departure from an accepted standard of medical care, health care, or safety of the patient, whether the action sounds in contract or tort. A cause of action alleges a departure from accepted standards of medical care or health care if the act or omission complained of is an inseparable part of the rendition of medical services.
3.2.1.1. Medical Liability and Insurance Improvement Act
4. Analysis
4.1. The first issue is whether Dr. Pate failed to adequately disclose information to her as to the second liposuction and if he disclosed the risks and hazards inherent in the procedure, she she would have refused such treatment
4.1.1. Under the rule, recovery can only be obtained if failing to disclose risks or hazards could have influenced a reasonable person in making that decision to withhold consent.
4.1.1.1. The fact of the case is that Ms. Mills signed two consent forms. The second one, prior to the second surgery, disclosed the risk of dissatisfaction with cosmetic results as well as the potential need to conduct future revisions to obtain improved results.
4.1.1.1.1. While it's unfortunate that Ms. Mills was unhappy with the results, the risks and hazards were clearly stated in the consent form. The plaintiff was unable to prove that there was a failure on the part of Dr. Pate to disclose the relevant information and obtain her consent.
4.2. The second issue is whether the trial court erred in granting summary judgment as to her common law claim for breach of express warranty.
4.2.1. Under the rule, a cause of action alleges a departure from accepted standards of medical care if the act or omission complained of is an inseparable part of the rendition of medical services.
4.2.1.1. Ms. Mills (relying on Sorokolit) contends that Dr. Pate promised particular surgical results, and that the promise was not kept. As a result, Dr. Pate should be held accountable for the breach of express warranty.
4.2.1.1.1. The fact of the case is that Dr. Pate made promises (that she would be beautiful, showed her images of results that did not match her own, and told her that the bags and pooches would be taken care of) to Ms. Mills about the results of the first surgery that were not kept.
5. Conclusion
5.1. The Court of Appeals of Texas El Paso affirmed the trial court's judgement in part, reversed in part, and remanded the case to the trial court for further proceedings.
5.1.1. Affirmed the judgement that the trial court made that there was no evidence of a failure to obtain Ms. Mills' informed consent to the second surgery.
6. Impact
6.1. Belma KEY, a/k/a Belma Keykurun, Appellant v. Hector M. VIERA, M.D., F.A.C.S., and Cosmetic Surgery Associates, Appellees. No. 01-07-00587-CV. Feb. 12, 2009.
6.1.1. Plaintiff Key urged the court to consider Mills v Pate as an example of a cosmetic surgeon making representations that were not met by the surgery.
6.1.1.1. The court determined that Mills v Pate was different from Key's case because Dr. Pate made specific guarantees and warranted a particular result.
6.1.1.1.1. The court determined that the representations made by Key's surgeon, Dr. Viera, were not of the same specificity or particularity as the promise made by the surgeon in Mills v Pate (and also Sorokolit).
6.2. Casey HUNSUCKER, Appellant, v. Abdel K. FUSTOK M.D. and Abdel K. Fustok, M.D., P.A., Appellees.
6.2.1. Very similar to the case above - had to do with false representations and breach of warranty
7. Why a business professional would care and how Mills v Pate influences business practices
7.1. Mills v Pate raises a few interesting issues. First, it is obviously very important for surgeons and medical professionals to obtain informed consent before any surgery or procedure. In the case of Mills v Pate, Dr. Pate successfully obtained informed consent from Ms. Mills, protecting him (somewhat) from liability.
7.2. This case also demonstrates that it is very important for medical professionals to be consistent in verbal, written, and other representations to the patient, particularly as they relate to outcomes. In this case, Dr. Pate made verbal representations to Ms. Mills that did not mirror the consent forms she signed, nor did they, of course, reflect the results of the surgery.
7.2.1. In fact, expert witnesses suggest that the representations made by Dr. Pate about future outcomes far exceeded the standard of care. He made unrealistic promises that a reasonably prudent surgeon wouldn't have made.