1. Impact of the Decision
1.1. Sorokolit v. Rhodes (1994)
1.1.1. Facts: Case is based on a breach of warranty and misrepresentation claim under the Deceptive and Trade Practices Act. Janice Rhodes, plaintiff, alleged that defendant, Bob Sorokolit, promised to augment her breast just like the one in a picture she selected. He failed to produce the expected results.
1.1.2. Outcome: DPTA claims were not based on negligence, however, he guaranteed a specific result and knowingly breached his express warranty
2. Application
2.1. Plaintiff has the burden of proof that the defendant, Dr. Pate did not provide her pertinent information about the risks and benefits of the procedure in order for her to make an informed decision
2.1.1. Dr. Pate provided Ms Mills an informed consent to the first and second surgery which included reasonable, foreseeable risks and benefits of the liposuction
2.1.1.1. Why is this relevant and important?
2.1.1.1.1. Upon signing the informed consent for both procedures, Ms Mills agreed to take on both the risks and benefits of the procedures in question
2.1.1.1.2. Ms Mills signed a second surgical consent and informed consent indicating that there is a possibility for further treatment in the future to obtain improved results, poor wound healing, and uneven contour.
2.2. Plaintiff has the burdened of proof that the defendant, Dr. Pate had a breach of an express warranty contract
2.2.1. Claim is valid if there was a deviation from the accepted standards of medical care, compromised safety of the patient, or tort.
2.2.1.1. Why is this important? Recasting of previous medical practice claim by defendant?
2.2.1.1.1. According to Ms Mills, Dr. Pate represented himself in the following ways 1) she was a suitable candidate for the procedure discussed 2) after liposuction she would look "beautiful, have smooth skin without ripples, bulges, or bags."
2.2.1.1.2. Issue raised with possible deceptive advertising or misinterpretation by the surgeon to the patient
3. How it Affects Health Care
3.1. This case can have a profound effect on how a surgical and informed consent is formulated and obtained
3.1.1. Practitioners have a fiduciary obligation to disclose any foreseeable information related not only to surgeries, but the course of treatment for a disease. The practitioner's ability to "relieve" or "cure" a person's disease process, for example relies heavily on his or her breadth of knowledge and skills. Practitioners have an obligation to refer patients to other practitioners if his or her skill set and or knowledge do not meet what is required for the patient
4. Conclusion
4.1. The court affirmed the trial court's judgment regarding informed consent claims, but reversed the decision based on the breach of warranty claim
5. Issue Before the Court
5.1. Ms. Mills is burdened with proving her malpractice suit brought forth by the court by showing whether or not Dr. Pate neglected to 1) properly warn and obtain informed consent and if he 2) violated or had a breach of express warranty claims
6. Rule of Law
6.1. Informed Consent
6.1.1. Defined: Patients should be reasonably informed about a specified treatment of procedure. As such, the practitioner is to disclose the risks, benefits, and alternatives to a treatment or surgical procedure. Specified risks must be those that are foreseeable, benefits are those that are reasonably expected from treatment, and alternatives are forms of other treatment or surgical procedures that may prove advantageous to the patient
6.1.1.1. Claim of Lack of Informed Consent - Elements of Claim: 1) the MD did not present the risks and benefits of the proposed procedure 2) with full information, the patient would have declined the treatment 3) the treatment, even though appropriate and carried out skillfully, was substantial enough for causing the patient's injury
6.1.1.1.1. Defense due to exculpatory clause: this is a clause that would absolve Dr. Pate from liability of negligence. Enforceability may stem whether or not the procedure or treatment heavily deviated from a reasonable, usual standards of care
6.2. Breach of Express Warranty
6.2.1. Defined: An express warranty is a guarantee that the "product" will meet a certain level of quality.
6.2.1.1. This if often open to interpretation and is difficult to determine if a specified warranty is either a promise or just an opinion
6.2.1.1.1. Sullivan v. O'Conner: plaintiff won and jury decided results were of a guarantee in nature
6.2.1.1.2. Guilmet v. Campbell: jury decided doctors were not negligent, but they failed promise to cure. Legislature later passed dictating that alleged promised or guarantees were void unless it is in writing
7. Two Health Practices Influenced By Case
7.1. 1) Deceptive Advertising or Misrepresentation
7.1.1. Doctors must be careful not to unknowingly participate in false advertising when consulting with a patient. More often than not, physicians are burdened with disclosing the facts to patients and family members. As an ICU nurse, I often see resident physicians not readily disclosing the full prognosis of patients to family members, thus giving family members false hope. It is important as healthcare providers, to disclose all pertinent information to patients and steer away from "what could or might be." Lawsuits often arise because practitioners neglect to disclose the facts upfront. This often leads to confusion by patients and malpractice suits ensues due to unexpected results.
7.2. 2) Insurance Coverage / Necessity of Surgery
7.2.1. The healthcare industry is a cost-driven market. Practitioners sometimes deviate from taking a conservative approach when it comes to developing a treatment plan for a patient. In addition, as patients, we often rely on the opinion of 1 practitioner. And sometimes, we rely just on this one individual's opinion. It would be better practice to gather multiple opinions for a course of treatment, for example, so that we can make a better, educated decision.
8. Facts
8.1. Background: Joyceline Mills, former plaintiff, filed a medical practice suit against the former defendant Dr. John Pate who performed liposuction and a thigh lift on the former plaintiff. Ms. Mills claims negligence, lack of informed consent, and breach of express warranty. Former defendant, Dr. Pate was granted summary judgement and former plaintiff Ms. Mills appealed.
8.1.1. On September 29, 1999, Ms. Mills had her first consultation with Dr. Pate regarding liposuction. According to Ms. Mills' recollection, Dr. Pate said she would be beautiful, have wonderful skin, and have no "pooches."
8.1.1.1. According to Dr. Pate's examination notes, he explained informed consent for both the procedure and anesthesia (risks, benefits, and alternatives). It was also noted on the exam notes that an abdominal and thigh tuck may be necessary and that her skin quality would not change from her current baseline
8.1.1.2. According to Ms. Mills, Dr. Pate never went over the informed consent with her, neglected to tell her about the potential for future procedures, and the skin irregularities she may encounter
8.1.2. On November 17, 1999, Ms. Mills signed both an informed consent and a surgical consent
8.1.2.1. Side effects from the surgical procedure included: discomfort, bruising, swelling up to 6 months, and pigmentation changes. However, the consent does not tell Ms. Mills that the quality of her skin will NOT change and that she may have skin ripples, indentations, or abdominal abnormalities
8.1.3. December 2, 1999: First liposuction performed by Dr. Pate to Ms. Mills, which consisted of her abdomen, hips, flanks, and thighs
8.1.3.1. According to the deposition, Ms. Mills followed all her post-operative instructions
8.1.3.1.1. However, weeks later after the swelling subsided, Ms. Mills began to see skin irregularities: two rolls under her right breast and the skin on her thighs sagged inward-downward to her kneecaps
8.1.4. January 9, 2001: Informed consent signed for the second surgery and on January 16, 2001, the second surgery was performed for her lower abdominal bilateral hip flanks
8.1.4.1. Surgical form mentioned 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."
8.1.4.1.1. Ms Mills asserted the the MD did not verbally notify her of any risks although it mentioned in the disclosure (informed consent)
8.1.4.2. Ms. Mills again felt unhappy with the procedure and she was again told that the sagging was due to swelling.
8.1.5. August 30, 2001: Ms Mills had her last appointment with the defendant, Dr. Pate. According to Ms Mills, Dr. Pate recommended an abdominoplasty to her initially, however, Ms Mills does not recollect him telling her she needed one
8.1.6. September 2001: Ms Mills consulted another MD, Dr. Miller and then later was referred to Dr. Gilliland, whom specializes in body contouring.
8.1.6.1. Dr. Gilliland recommended a more extensive surgery (body lift) which required Ms Mills to have a longer post-operative care management. Dr. Gilliland also mentioned that Dr. Pate's care and treatment were inadequate
8.1.6.2. Ms Mills was satisfied with the body lift that was performed by Dr. Gilliland and thought Dr. Pate's initial recommendation for a liposuction was not what she needed
8.1.7. January 23, 2002: notification was given to Dr. Pate to be sued under the Medical Liability and Insurance Improvement Act and on January 23, 2003, a lawsuit was filed against Dr. Pate for malpractice
8.1.7.1. Issues raised were: failing to properly to warn and obtain inform consent in regards to the outcome and warning her of further treatment, and breach of express warranty claim