1. Should Ms. Mills appeal, claiming lack of informed consent, negligence, and breach of express warranty move forward with trial proceedings?
2. Facts
2.1. Parties involved
2.1.1. Plaintiff: Ms. Mills
2.1.2. Defendant: Dr. Pate
2.2. What happend
2.2.1. Summary judgment granted to defendant based on lack of evidence. Plaintiff appealed.
2.2.2. 1999 Plaintiff sought liposuction surgery. Chooses defendant because of radio ad and believed impressions from initial consult
2.2.2.1. Plaintiff denied being informed of risks
2.2.2.2. Plaintiff signed brochure with explanation of risks
2.2.2.3. 11/17/1999 Plaintiff consents to surgery
2.2.2.3.1. Documented informed consent in physician notes
2.2.2.4. Defendant testimony acknowledgd consent does not inform of certain risks including: skin change, ripples, indentations, abdominal abnormalities
2.2.3. Post-surgery
2.2.3.1. Four months after surgery, plaintiff noticed distinct rolls and sagging, informs defendant
2.2.3.2. Defendant dismissed issues as post-operative swelling
2.2.3.3. Post six months from surgery plaintiff unhappy with results, and under guidance from staff to address issue carefully, plaintiff disclosed dissatisfaction to defendant
2.2.3.4. Defendant offered additional surgery
2.2.4. 1/9/2001 Second surgery
2.2.4.1. 1/9/2001 Plaintiff consents to second surgery with defendant
2.2.4.2. Plaintiff reported the defendant did not directly inform her of risks
2.2.4.3. Plaintiff unhappy with second surgery, complaints dismissed as swelling by defendant and staff
2.2.4.4. Plaintiff reported that she did not look the way she wanted to look and was led to believe would look by defendant
2.2.5. 8/30/2001 final meeting between plaintiff and defendant. Defendant recommended another procedure, one plaintiff was previously informed that she would not need
2.2.6. Plaintiff seeks consultation with new physician
2.2.6.1. Plaintiff informed more extensive surgery and recovery required to correct issues stemming from surgery performed by defendant
2.2.7. Plaintiff undergoes surgery with new physician and satisfied with results
2.2.8. 1/23/2002 Plaintiff informs defendant of intent to sue for malpractice
3. Issues before the court
3.1. Was there evidence to support Ms. Mills' claims?
3.2. Was there a lack of informed consent?
3.3. Was there a breach of express warranty?
3.3.1. Is defendant claim that plaintiff trying to "recast negligence claim" as breach of warranty correct or does her case hold and summary judgment should not have been granted?
4. Rule of Law
4.1. negligence
4.1.1. not adhering to expected standards of care
4.2. lack of informed consent
4.2.1. right of patient to be be fully informed of potential risk and harm to medical procedure
4.3. breach of express warranty
4.3.1. Rhodes v. Sorokolit precedent ruling in favor of plaintiff in case where physician promised a result that was not produced
5. Analysis
5.1. Informed Consent
5.1.1. Based on precedent from case Hartfiel v. Owen Ms. Mills would have needed to prove that she was not informed of risks and would have chosen differently
5.1.2. Court found that she was properly informed prior to second surgery.
5.2. Breach of express warranty
5.2.1. Plaintiff made clear claims about the promises made to her by defendant. these were the most compelling facts to court.
5.2.1.1. Precedent from Rhodes v. Sorokolit supported her case, see above.