1. IMPACT
1.1. Breach of Express Warranty differentiated from "Standard of Medical Care"
1.1.1. Mills v. Pate defined the precedent for when a physician promises particular surgical results, he or she may be held liable and it does not solely rely on the accepted standard of medical care.
2. Cases Cited
2.1. Hunsucker v. Fustok 238 S.W.3d 421 Court of Appeals of Texas, Houston (1st Dist.)
2.1.1. Facts
2.1.1.1. Claimant (Hunsucker) alleged that her breast surgery was performed in manners outside those she and the surgeon agreed to follow. Specifically, the claimant complained that (a) the wrong surgical approach was used (through the nipple/areola), (b) new implants were not placed (her old ones were replaced), and (c) the new implants were not placed underneath the breast tissue.
2.1.2. Issue
2.1.2.1. Whether the patient has a breach of express warranty?
2.1.3. Application
2.1.3.1. Breach of Express Warranty does not apply
2.1.3.1.1. The facts of Hunsucker's case are distinguishable from Sorokolit and Mills, in that Hunsucker's claims arise from an agreement between the parties that her surgery would be performed in a particular manner. Dr. Fustok did not promise Hunsucker a particular result, as the physician did in Sorokolit and Mills. Furthermore, the court in Sorokolit did not decide whether an expert report was necessary because that provision of former article 4590i was not enacted until 1995, one year after the Sorokolit decision.
2.1.4. Conclusion
2.1.4.1. Despite the fact that the claimant alleged fraud and assault and battery against the surgeon based on these facts, this matter was held to be a health care liability claim because the underlying factual bases of the claim (specific elements of the surgery) were inseparable from the surgeon's rendition of health care services. It does not fall under breach of express warranty. Because her claims were health care liability claims, Hunsucker was required to comply with the expert report requirements of section 13.01(d) of former article 4590i in order to proceed with her suit
2.2. MacFARLANE, v. BURKE, M.D.,
2.2.1. FACTS
2.2.1.1. Appeal from the 190th District Court Harris County, Texas, Trial Court Case No.2010–09660
2.2.1.2. In September 2007, Burke performed knee replacement surgery on MacFarlane's left knee. On December 10, 2007, Burke performed knee replacement surgery on her right knee. MacFarlane experienced a high level of pain following surgery on her right knee that she had not experienced following surgery on her left knee. Burke told her he would continue to see her to determine why her right knee was having problems. After multiple visits with Burke for post-operative treatment—continuing at least until April 9, 2008—MacFarlane met with Dr. Leland Winston. Winston took an x-ray of her right knee and discovered that she was suffering from a dislocation of the patella. He concluded that the dislocation was the cause of MacFarlane's pain and limited ability to extend her knee.
2.2.2. Conclusion
2.2.2.1. Affirmed the trial court's summary judgement for McFarlane's health care liability claim concerning Burke's alleged failure to obtain informed consent for MacFarlane's right knee replacement surgery. Reversed the summary judgment in all other respects and remanded for further proceedings.
2.2.3. Issue
2.2.3.1. Whether MacFarlane can claim negligence under the theory of informed consent?
2.2.4. Application
2.2.4.1. There is a two-year statute of limitations on health care liability claims. Tex. Civ. Prac. & Rem.Code Ann. § 74.251(a) (Vernon 2011). The two years begins from (1) the date of the breach or tort; (2) the last date of the relevant course of treatment; or (3) the last date of the relevant hospitalization
2.2.4.1.1. Response: Burke filed a traditional motion for summary judgment, arguing that MacFarlane's claims were barred as a matter of law by the statute of limitations. Burke's summary-judgment evidence consisted of (1) MacFarlane's original petition; (2) Burke's verified denial; and (3) MacFarlane's notice of her claim against Burke.
2.2.4.2. MacFarlane gave Burke notice of her claim on December 4, 2009. She did not, however, provide an authorization form for release of her medical information. Providing the authorization form is a condition precedent for application of the tolling provision.
2.2.4.2.1. MacFarlane asserted Burke's office indicated they did not need the authorization for release of medical information form.
2.2.4.3. The surgery was performed on December 10, 2007. MacFarlane filed suit on February 12, 2010. This was outside the statute of limitations.
3. Business Practices Influenced
3.1. Medical Malpractice
3.1.1. Mills v. Pate provided precedent for breach of express warranty as a valid legal argument for proving medical malpractice claims in plastic surgery and other medical specialties
3.2. Tort Lawyers
3.2.1. Litigation would fall under state health care liability statutues which differ by state
4. Conclusion
4.1. Appeals court found that trial court concluded correctly in granting no-evidence summary judgement on Ms. Mills informed consent claims. There was no negligence under informed consent
4.2. Also found that Ms. Mills proved a breach of express warranty claim for the first surgery because she presented evidence to support the elements of her claim and reversed and remanded the decision.
5. FACTS
5.1. Plaintiff: Jocelyn Mills
5.2. Defendant: Dr. John Pate
5.3. Claim: Joycelyn Mills filed a malpractice suit under the Medical Liability and Insurance Improvement Act ("the Act") against Dr. John Pate who performed liposuction surgery and thigh lift, alleging claims for negligence, lack of informed consent and breach of express warranty.
5.3.1. She experienced pain and skin irregularities after liposuction. A second surgery by Dr. Pate did not help, and subsequent surgeries by another plastic surgeon were necessary to rectify the problems.
5.3.2. Mills sued Dr. Pate alleging among other things that he made representations to her about the quality or characteristics of his services, specifically:
5.3.2.1. (1) that she was a suitable candidate for surgery,
5.3.2.2. (2) that after liposuction, she would look beautiful and that she would have smooth skin without ripples, bulges or bags
5.4. Pate claimed in a no-evidence motion that Mills failed to provide any elements of failure to have an informed consent specifically, there was no evidence of duty, breach, causation, or harm relating to the second surgeries.
5.4.1. Pate moved to dismiss her claim arguing that her breach of warranty claim was an attempt to recast her negligence claims as a breach of contract claim and there was no evidence to support her claims.
5.5. Appealed From: the 346th District Court, El Paso County, granted physician summary judgment. Patient appealed to Court of Appeals El Paso, TX.
6. ISSUE
6.1. Whether a patient could claim negligence under the theory of informed consent?
6.1.1. Must prove that he/she would not have consented to treatment had he been informed of the undisclosed risk and that he/she was injured by the occurrence of the risk of which he was not informed
6.2. Where a physician promises particular surgical results, may he or she be held liable for breach of that express warranty if the breach of warranty claim is not based on the physician’s breach of the accepted standard of medical care?
6.2.1. 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.
7. RULE OF LAW
7.1. Informed Consent
7.1.1. Under TEX.Rev.Civ.Stat art. 4590i, section 6.02 for health care liability claims based on failure of physician to disclose or adequately disclose the risks and hazards involved in the procedure, recovery may be obtained under the theory of negligence in failure to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withold consent.
7.2. Breach of Express Warranty
7.2.1. Specific promise made by a physician that does not occur; (e.g, if surgical outcome not achieved, patient can sue)
7.3. Physician-patient agreement
7.3.1. Elements of a valid contract
7.3.1.1. 1. Precursors:
7.3.1.1.1. 1. Capacity or competent to enter into contract
7.3.1.1.2. 2. Legality
7.3.1.2. 2. Considerations
7.3.1.3. 3. Agreement which includes an offer ("I will treat you" and acceptance "I agree to pay"
7.3.1.4. 5. Defenses
7.3.2. Breach of contract
7.3.3. Length of contract
7.3.3.1. Lasts for the extent of the illness
7.3.3.2. Terminated when patient dies
7.3.3.3. Mutual agreement to terminate
7.3.3.4. Patient dismisses provider
7.3.3.5. Physician can end relationship under certain terms:
7.3.3.5.1. Formal notification to patient
7.3.3.5.2. Refer patient to another practitioner
8. Application
8.1. Negligence under informed consent
8.1.1. Mills signed a consent form prior to the second surgery that specifically disclosed "dissatisfaction with cosmetic results...possible need for future revision to obtain improved results, poor wound healing, recurrence of the original condition, and uneven contour" that adequately disclosed the risks and hazards inherent in the second surgery.
8.1.1.1. No evidence to support Pate failed to obtain Mills informed consent to the second surgery.
8.2. Breach of warranty
8.2.1. Mills presented evidence to support her common-law claim for breach of express warranty.
8.2.1.1. Relying on Sorokilt, Mills contends where a physician promises particular results, he may be held liable for breach of that express warranty and does not need to require a "determination of whether a physician failed to meet the standard of medical care".
8.2.1.1.1. Pate’s remarks promised results and injuries she suffered raised genuine issues of material fact as to each challenged element of her breach of express warranty claim.
8.2.1.1.2. Pate’s representations about the quality or characteristics of the services were related to their patient-client relationship, but were separable from her negligence claims and do not require a determination as to whether Pate failed to meet the accepted standard of medical care for cosmetic surgery.
8.2.1.2. Pate asserts as a defense that Mills was trying to recast her negligence claims as a breach of warranty claim and that she had no evidence to support breach of warrnty.