1. Facts
1.1. Parties
1.1.1. Joyceline Mills (Plaintiff)
1.1.2. Dr. Pate (Defendant)
1.2. Factual History:
1.2.1. Ms. Mills (Plaintiff) underwent liposuction surgery after consulting with Dr. Pate (Defendant). Plaintiff requested to have fat removed from abdomen, hips and thighs as part of surgery.
1.2.2. Defendant explained to Plaintiff that she would look "beautiful" which to Plaintiff meant no "pooches" and smooth skin.
1.2.3. Plaintiff signed an informed consent form (ICF) which explained procedure, incisions, risks, implications for surgery and anesthesia. The ICF did not make any representations regarding results or procedure. The ICF also stated that Plaintiff may experience ripples, indentation or abdominal abnormalities after liposuction.
1.2.4. 3 to 4 months post-surgery Plaintiff's swelling decreased and she noticed skin irregularities which consisted of 2 rolls in upper abdomen and sagging skin on her thighs.
1.2.5. Prior to the second surgery, Plaintiff signed another ICF which stated the following risks "dissatisfaction with cosmetic results, possible need for future revision to obtain improved results, poor wound healing, recurrence of original condition, uneven contour."
1.2.6. Although Defendant stated these irregularities would disappear, they remained and Plaintiff continued to be upset with surgical results. Plaintiff asked Defendant to correct the irregularities.
1.2.7. Defendant expressly stated to Plaintiff that second surgery would correct baggy skin and Plaintiff would have smooth skin, no ripples, bulges, and bags.
1.2.8. Following the second surgery, Plaintiff remained dissatisfied with results due to continued bagging and bulging of skin.
1.2.9. Plaintiff consulted with a different doctor who ended up performing an extensive procedure to repair skin irregularities which involved a large incision which procedure ultimately fixed the Plaintiff's skin irregularities.
1.3. Procedural History
1.3.1. Plaintiff filed a medical malpractice action against Defendant alleging claims of negligence, lack of informed consent, and breach of express warranty.
1.3.2. The trial court granted summary judgment in favor of Defendant related to all claims.
1.3.3. Plaintiff appealed this ruling.
2. Issues Before the Court
2.1. Issue 1: Whether Defendant was negligent due to failure to properly warn and obtain informed consent regarding probable outcome of liposuction and need for future treatment
2.2. Issue 2: Whether there existed a breach of express warranty as a result of Defendant's failure to provide verbally promised results of surgery to Plaintiff.
3. Rule of Law
3.1. Rule 1: Informed Consent (based on statute and common law)
3.1.1. Plaintiff may not recover for negligence under the theory of informed consent unless he proves (i) Plaintiff would not have consented to treatment had he been informed of the undisclosed risk; and (ii) Plaintiff was injured as a result of the occurrence of such risk. (Based on former Texas statute Tex. Rev. Civ. Stat. art. 4590(i) Sect. 6.02 and Hartfield v. Owen, 618 S.W.2d 902, 905 (Tex.Civ. App. - El Paso 1981).
3.2. Rule 2: Breach of Express Warranty (based on common law)
3.2.1. Where a physician promises particular results, she may be held liable for breach of express warranty if Plaintiff proves (i) services were sold to Plaintiff; (ii) Defendant made a representation regarding characteristic of services that were promised; (iii) representation becomes the basis of the transaction; (iv) a breach of warranty occurred; and (v) Plaintiff suffered injury as a result of such breach. Methodist Hosp. v. Zurich Am Ins. Co. 329 S.W. 3d 510, 527, 2009.
3.2.2. Also, an express warranty claim is not precluded under the Medical Liability and Insurance Improvement Act (the "Act") where a physician guarantees a particular result and the claim does not require a determination of whether a physician failed to satisfy standard of care. Sorokolit v. Rhodes, 889 SW2nd 239 (1994).
4. Application
4.1. Informed Consent
4.1.1. Plaintiff signed an informed consent form (ICF) before second surgery which specifically stated 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."
4.1.2. It is undisputed that Plaintiff had been informed of the potential risks because of her signing this ICF.
4.1.3. Court reasoned that even if Defendant verbally promised a repair of all skin defects, this does not create a genuine issue of material fact as to whether Defendant adequately disclosed risks in second surgery because of the existence of the signed ICF.
4.1.4. Plaintiff had burden of proof to show Defendant did not adequately disclose risks.
4.1.5. Accordingly, because Plaintiff could not demonstrate that she was not adequately informed of such risks, she was unsuccessful in proving this claim.
4.2. Breach of Express Warranty
4.2.1. Defendant argues that Plaintiff's claim is a mere attempt to "recast" her negligence claim as a contract claim and this is not permissible to avoid requirements of the Medical Liability and Insurance Improvement Act (the "Act").
4.2.2. Court noted that a claim is a liability claim if there exists a deviation from the standard of care, whether it sounds in contract or tort, and a claim must be brought under the Act if it is based on a departure from the standard of care.
4.2.3. The claim can be brought separately under contract theory only if it is distinct from the claim that the injury resulted due to a deviation from the standard of care.
4.2.4. In this case, Defendant expressly promised (verbally) that after surgery Plaintiff would have smooth skin without bulges or bags.
4.2.5. Because Defendant expressly promised a particular result in this case, Plaintiff's express warranty claim was not precluded under the Act. Sorokolit v. Rhodes, 889 SW 2nd 239 (1994).
4.2.6. Because the breach of express warranty claim was not precluded, Plaintiff was able to prove that (i) Defendant sold her the service (lipsuction); (ii) Defendant made an express representation as to the result (smooth skin); (iii) Plaintiff relied on this statement when entering into the agreement, because Plaintiff argued that she would not have underwent lipsocution but for Defendant's promise that it would cure her skin irregularities; (iv) Defendant's liposuction did not fix the irregularities (i.e. there was a breach); and (v) Plaintiff suffered injury (multiple surgeries and expense) as a result of such breach.