1. FACTS
1.1. PARTIES
1.1.1. Joyceline Mills
1.1.2. Dr. John Pate
1.2. What Happened?
1.2.1. Mills met with Dr. Pate to discuss having liposuctions from abdomen, hops and thighs.
1.2.1.1. Mills states that Dr. Pate informed her that she would be beautiful after surgery with no pooches and smooth skin.
1.2.2. Mills signs informed consent form and permission to have surgery.
1.2.2.1. Consent form advises of the possibility of a second surgery in which Dr. Pate's physician fee would be waived.
1.2.2.2. Consent form discusses possible side-effects and serious complications.
1.2.2.3. Dr. Pate concedes that the consent form did not state that Mills skin quality will not change and that she may have ripples, indentations or abdominal abnormalities after liposuction.
1.2.3. Mills unhappy with result of surgery
1.2.3.1. Mills complains of sagging skin and abdominal rolls.
1.2.3.2. Dr. Pate performs a second surgery to correct the issues that requires Mills to sign another consent form that outlines risks.
1.2.3.3. Mills unhappy with results of second surgery and has to undergo a full body lift procedure with another plastic surgeon.
2. Rule
2.1. Should the physician be held liable for Breach of Express Warranty if the results of the surgery were not what the patient expected?
2.1.1. 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.
2.2. Should the physician be held liable for failure to adequately disclose the risks and hazards inherent in the liposuction procedure.
2.2.1. Under former TEX.REV.CIV.STAT. art. 4590i, section 6.02, 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 of influenced a reasonable person in making a decision to give or withhold consent.
3. Application
3.1. In the matter of Informed Consent Dr. Pate asserts that Ms. Mills lacked evidence as to every element of informed consent to the January 2011 procedure, specifically he alleged that she had no evidence of duty, breach, causation or harm relating to the touch-up liposuction and thigh lift.
3.1.1. Ms. Mills may have been unhappy with the results of the initial liposuction procedure as well as the touch-up liposuction and thigh lift by signing informed consent forms for both surgeries it is undisputed that Dr. Pate did disclose the risks and hazards for the procedure.
3.2. In the matter of Breach of Express Warranty did Dr. Pate fail to meet the expectations of Ms. Mills when he promised her that she would look beautiful and have smooth skin free of ripples, bulges or sags after the procedure. Dr. Pate feels that Ms. Mills lacks evidence and was filing the motion in an attempt to recast her negligence claims as a Breach of Express Warranty claim.
3.2.1. Ms. Mills contends that if a physician promises particular surgical results he may be held liable for breach of that express warranty if the services provided do not conform to the character and quality of the services described.
3.2.1.1. Dr. Pate feels that the promises Ms. Mills alludes to must be presented in writing in order to be valid.
4. Conclusion
4.1. Summary judgement to Dr. Pate on the issue of informed consent is affirmed.
4.2. Summary judgement on the issue of Breach of Express Warranty claim is reversed in part and remanded to the trial court for further proceedings.
5. Sub-Topics
5.1. Impact of the Decision
5.1.1. Other plastic surgeons may become vague regarding the expected results of any type of procedure due to the fact that a patient can sue for Breach of Express Warranty if the results are not what the patient expects. Patients with unrealistic expectations regarding plastic surgery may feel entitled to compensation when their intended desire is not attained even if the plastic surgeon performed the procedure that met the accepted standards of care.
5.1.1.1. Two current business practices that would have been influenced by the holding would be plastic surgery practices and cosmetic dental practices.