1. Conclusion
1.1. Lack of informed consent
1.1.1. It was undisputed that Ms Mills received information on the surgeries and signed the consent forms
1.1.2. She went ahead with the 2nd surgery even after all the risks were disclosed
1.1.3. The finding of the court that Ms Mills gave her consent to the surgeries is valid
1.2. Breach of express warranty
1.2.1. Ms Mills presented enough evidence to show that Dr Pate failed to fulfill the representations he had made on the final outcome of the surgery, irrespective of whether he met the standard of care
1.2.2. The finding of the court that Dr Pate was liable for breach of express warranty is valid
2. Impact
2.1. These are 2 of the cases that have cited Mills v. Pate.
2.1.1. Key v. Viera: Key cited Mills v.Pate as support for her breach of express warranty claim as separate and not subject to the MLIIA
2.1.1.1. Key v. Viera, No. 01-07-00587-CV, 2009 WL 350602 (Tex. App. Feb. 12, 2009) Retrieved September 9,2016 from WestLaw Next
2.1.2. Hunsucker v. Fustok: Appellant cited Mills. v. Pate as support that her claims do not fall under health care liability claims and so not subject to MLIIA
2.1.2.1. Hunsucker v. Fustok, 238 S.W.3d 421 (Tex. App. 2007) Retrieved September 9,2016 from WestLaw Next
3. Implications
3.1. Business professionals should always get acknowledgement of informed consent in writing in addition to verbally explaining the procedure to client
3.2. Be more careful with the representations and promises made to clients
3.3. Have a clause in the informed consent form that states that the business is bound only by representations made in writing
4. Facts
4.1. Parties
4.1.1. Ms.Mills, Appellant,a 49 year old woman
4.1.2. Dr. Pate, M.D.,Appellee
4.2. Background
4.2.1. In 1999,Ms Mills decided to get liposuction done. She heard Dr. Pate's ad that he was a board certified expert in liposuction
4.2.1.1. 9/29/99 Ms.Mills had 1st consultation with Dr.Pate. She wanted to remove fat bulges on abdomen, hips and thighs
4.2.1.1.1. according to Ms.Mills, Dr.Pate told her she would be beautiful and have smooth skin
4.2.1.1.2. Patient reviewed post-op pictures by doctor's staff showing smooth skin with no rippling or sagging
4.2.1.1.3. Per Dr.Pate's notes, patient was informed about the risks and irregularities that could result from the surgery
4.2.2. 11/17/99: Ms. Mills signed informed consent form and permission to perform surgery
4.2.2.1. form listed complications that could arise from the procedure
4.2.2.2. did not mention the condition of the skin, abdominal abnormalities or rippling of the skin
4.2.2.3. form mentions possibility of touch up surgery 6 months after initial.If performed at center,patient would not be charged for it
4.2.3. 12/02/99: 1st liposuction performed by Dr.Pate on Ms.Mills on her abdomen,hips,flanks and thighs
4.2.3.1. 3 or 4 months post surgery Ms Mills began to see rippling in her skin in the form of rolls under her right breast and sagging skin on her thighs
4.2.3.1.1. complained to Dr.Pate and his staff regarding the irregularities within 6 months and was told it was due to expected swelling
4.2.4. 6 months post surgery, Patient was unhappy with the results and let Dr Pate know that she was unsatisfied with the results
4.2.4.1. Dr.Pate proposed a 2nd surgery that included a thigh lift,correction of the liposuction,fixing the abdominal rolls and a bulge on the left hip
4.2.4.1.1. possibility of thigh lift after the 1st liposuction was mentioned in the disclosures but not verbally relayed to Ms.Mills
4.2.5. 01/09/01: Ms Mills signed informed consent for 2nd surgery
4.2.6. 1/16/2001: day of 2nd surgery, Mills signed form giving consent for lower abdominal bilateral hip flank liposuction and thigh lift
4.2.6.1. among other risks,this form listed "dissatisfaction with cosmetic results"
4.2.6.2. Neither Dr.Pate or his staff discussed the risks of the surgery with her
4.2.6.3. After this surgery,patient was unhappy with results and brought them up to Dr. Pate.She was told that the skin irregularities were due to swelling
4.2.6.4. Per patient, the doctor had described beautiful skin, free of rippling or sagging
4.2.6.4.1. Instead she had bulges,rippling and disproportionate hips
4.2.7. 08/30/01-Ms Mills had last appointment with Dr.Pate
4.2.7.1. Doctor told patient that she should have done a tummy tuck instead
4.2.7.2. Per patient, Dr.Pate had told her at the initial appointment that she would not need a tummy tuck
4.2.8. 1 month later-Ms Mills' consultation wih Dr.Miller, a plastic surgeon. Dr Miller told Ms.Mills that it would take a minimum of 3 surgeries for him to fix her issues
4.2.8.1. Dr.Miller referred Ms Mills to Dr Gilliland,a doctor in Houston with a specialization in body contouring
4.2.9. 1 month later-Ms Mills met with Dr.Gilliland who recommended a body lift as the means to correct the irregularities from the liposuction
4.2.9.1. Dr. Gilliland told the patient that her post-op care would be more extensive than what she had with Dr.Pate
4.3. Abdominoplasty, body lift and thigh lift were performed by Dr. Gilliland
4.3.1. Patient was happy with the results of these procedures. She had no ripples or rolls,"thighs were slimmed and her abdomen was flattened and smooth"
4.4. Patient's issues with Dr.Pate
4.4.1. her current body shape is one she would have had if the 1st liposuction was done properly
4.4.2. if she had her current body shape after the 1st surgery,no other surgeries would have been needed
4.4.3. if she knew at the 1st appointment with Dr. Pate that a body lift was needed, she would not have done the procedure
4.5. Procedural history
4.5.1. 01/23/2002-Dr Pate notified of Ms Mills' intent to sue
4.5.2. 01/23/2003-Ms.Mills filed medical malpractice suit against Dr. Pate
4.5.2.1. her allegations
4.5.2.1.1. negligence:failure to properly warn and obtain informed consent
4.5.2.1.2. breech of express warranty as an an amendment
4.5.3. Judge granted physician summary judgement
4.5.3.1. Patient appealed
5. Rule
5.1. Ms. Mills appealed physician summary judgement
5.2. was there sufficient evidence for the judge to grant physician summary judgement and dismiss appellant's claims of negligence by lack of informed consent and breach of express warranty
6. Application
6.1. lack of Informed consent
6.1.1. Under TEX.REV.CIV.STAT.ART 4590I section 6.02, Ms Mills could only prevail if "negligence in failing to disclose the risks or hazards could have influenced a reasonable person in making the decision to give or withhold consent."
6.1.1.1. her arguement: before the risks were added to the informed consent form, she was already experiencing them
6.1.1.2. Mills v. Pate, 225 S.W.3d 277 (Tex. App. 2006)
6.1.2. The court's findings
6.1.2.1. The doctor did inform the patients of the risks that could occur with the touch up liposuction
6.1.2.2. Promise by Dr.Pate to Ms Mills to fix the irregularities is immaterial in considering if he adequately warned her of the risks of the 2nd surgery
6.1.2.3. Court upheld decision of trial court and found that there was no evidence to indicate that Dr Pate didn't obtain informed consent for the 2nd surgery
6.2. breach of express warranty
6.2.1. Dr.Pate's arguement
6.2.1.1. Ms Mills was trying to recast her health care liability claim as a breach of express warranty to avoid the requirements of her original claim under the Medical Liability and Insurance Improvement act
6.2.2. Ms.Mills' arguement
6.2.2.1. She was told she was a suitable candidate for the surgery and she was promised she would be beautiful and her skin would be smooth
6.2.2.2. Based on Sorokolit, if a physician promises certain results and does not deliver, he is liable for breach of express warranty
6.2.3. The court's findings
6.2.3.1. Ms. Mills presented enough evidence and her claim of breach of express warranty was valid
6.2.3.2. Whether Dr.Pate met or didn't meet the standards of care for cosmetic surgery was immaterial to determining if he fulfilled the representations that he made to Ms.Mills
6.2.3.3. Reversed the trial court's judgement