1. Impact
1.1. Casey HUNSUCKER v. Abdel K. FUSTOK MD and Appelles (No. 01-06-00066-CV)
1.1.1. Hunsucker brought action against Hunsucker, asserting negligence and fraud claims.
1.1.1.1. Hunsucker's nonsuited claims, added claims of assault and battery.
1.1.2. Courts granted Fustok's motion to dismiss and ordered patient to pay attorney fees.
1.1.2.1. Hunsucker appealed and Fustok's cross-appealed as to the denial of appellate attorney fees.
1.2. Belma KEY v. Hector VIERA MD, F.A.C.S. and Cosmetic Surgery Associates
1.2.1. Key filed a petition on 9/25/06 alleging breach of contract, common law fraud, and negligent misrepresentation against Viera and CSA. Key later filed a amended petition alleging breach of express warranty, based on Viera's representation that removing more fat would cause rippling and that there are not fat bulges or lumps evident.
1.2.1.1. Courts ruled in Viera and CSA's favor.
2. Importance
2.1. Health care professional would care about this decision for the following reasons:
2.1.1. The decision would inform future patient care protocols.
2.1.2. It would change the current law
2.1.3. It would change the manner in which patients are notified of diagnosis, care risks and hazards.
2.1.4. It would also change liability risk for MDs.
3. Influence
3.1. Two current business practices that influenced the holding
3.1.1. Patient receive in written form the risk and hazards of surgical procedures and must acknowledge them.
3.1.2. Ongoing Competence Training. Training and coaching of health care providers to behave and communicate based on facts with compassion. They should not over reach beyond the facts.
4. Facts
4.1. Parties
4.1.1. Joyceline Mills (Patient)
4.1.2. Dr. John Pate (Physician)
4.2. What Happened?
4.2.1. Ms. Mills sued Dr. Pate for medical malpractice, alleging claims of negligence, lack of informed consent, and breach of express warranty.
4.2.2. Ms. Mills' Story
4.2.2.1. Ms. Mills heard a radio ad for Dr. Pate in how liposuction could change one's life.
4.2.2.2. During Ms. Mills 9/29/99 first consultation, recalled Dr. Pate telling her she was going to beautiful after having liposuction, which to her meant smooth skin and no pooches. She was showed post-procedure photographs of other patients and she observed they had smooth skin and no saddlebags.
4.2.2.3. Ms. Mills stated that Dr. Pate never told her about any kind of possible risks of the procedure.
4.2.3. Dr. Pate's Story
4.2.3.1. Based on Dr. Pate's examination notes he explained the liposuction technique, the incisions, risks, and complications of surgery and anesthesia.
4.2.3.2. The examination notes also indicated that Dr. Pate explained the long-term results may require small crescent tuck to the abdomen or medial thigh lift because her skin tone was fair.
4.2.3.3. Ms. Mills was allegedly told that her skin would not change after liposuction and that irregularities frequently occur.
4.2.3.4. Dr. Pate gave her a brochure to read and sign that review the procedure and risks.
4.2.4. on 11/17/99 Ms. Mills signed an informed consent form and permission to perform surgery form.
4.2.4.1. The consent form listed the following possible side effects from the liposuction procedure: discomfort, bruising, pigment change, scarring, swelling for up to six months.
4.2.4.2. Also the form warned of possible serious complications fro surgery.
4.2.5. On 12/2/99, Dr. Pate performed his first liposuction procedure on Ms. Mills.
4.2.5.1. The surgery consisted of surgery on her abdomen, hips, flanks, and thighs.
4.2.5.2. Ms. Mills was charged for this surgery.
4.2.5.3. Ms. Mills followed all of Dr. Pate's post-operative instructions.
4.2.5.4. Ms. Mills noticed swelling, bruising in the first week. After four months Ms. Mills notice irregularities in her skin. She had two rolls under her right breast in the upper abdomen and the skin on her right thigh was sagging in the front and inside, down her kneecaps.
4.2.6. Ms. Mill expressed her concerns and dissatisfaction after 6 months. Ms. Mills was cautioned to express concerns delicately to Dr. Pate or else he would not repair it.
4.2.6.1. Dr. Pate to Ms. Mills to pay him to do her thigh lift and he would touch it up.
4.2.6.2. Ms. Mills understanding was that Dr. Pate would perform a second surgery, consisting of a medical thigh lift and a touch up on the liposuction, specifically the abdomen rolls and bulge on her left hip.
4.2.6.3. Ms. Mills believed that Dr. Pate would charge her for the medial thigh life and do a touch up procedure free of charge.
4.2.6.4. Dr. Pate never told Ms. Mills prior to the first liposuction procedure that she might need a thigh lift, although Ms. Mills recalled that the disclosure mentioned it.
4.2.7. On 1/9/01, Ms. Mills signed an informed consent form for the second surgery.
4.2.7.1. 1/16/01, the second surgery took place and Ms. Mills signed a form consenting to lower abdominal bilateral hip flank liposuction and the thigh lift.
4.2.7.1.1. The consent form disclosed 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.
4.2.7.2. It was Ms. Mills understanding that the second liposuction was just touch-up work.
4.2.7.3. Dr. Pate told Ms. Mills that the thigh lift would take care of the baggy/saggy skin.
4.2.7.4. Dr. Pate did not talk to her about any risks from the procedure and neither did his staff
4.2.8. After the second surgery
4.2.8.1. Ms. Mills felt some soreness in the abdomen and around the incision on her legs.
4.2.8.2. Ms. Mills was unhappy with the second surgery. She noticed that she still had some bagging and sagging aft the thigh lift.
4.2.8.3. Ms. Mills told Dr. Pate that the roles had moved from her right side to her left side below her naval. She was told it was swelling. However, the roles did not go away.
4.2.8.4. Ms. Mills felt that she did not look like what Dr. Pate told her she would look post surgery.
4.2.8.4.1. Dr. Pate described smooth skin, no ripples, bulges, and bags, but there was definite bagging on her left thigh, rippling and a bulge on her left abdomen, and a bulge on her right thigh. Her hips were disproportionate.
4.2.9. Last appointment 8/30/01
4.2.9.1. Dr. Pate informed Ms. Mills that she should have paid him to do a tummy tuck or abdominoplasty.
4.2.9.2. Dr. Pate never mentioned to Ms. Mills that she might need a tummy tuck. Dr. Pate stated that he didn't think a tummy tuck would be needed.
4.2.10. Second opinion
4.2.10.1. Ms. Mills went to see Dr. Miller who referred Ms. Mills to Dr. Gilliland due to his specialization of body consultation.
4.2.10.1.1. Dr. Gilliland recommend a body lift to correct the irregularities resulting from the liposuction procedures.
5. Issue
5.1. Whether there was sufficient evidence of informed consent of the liposuction surgeries?
5.2. Whether there was sufficient evidence to support the claim of breech of express warranty?
6. Rule of Law
6.1. Informed consent
6.1.1. Physician to disclose or adequately to disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician.
6.1.2. Recovery may be obtained only under the theory of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.
6.2. Breech of express warranty
6.2.1. Negligence in performance of professional services
6.2.1.1. Departure from an accepted standard of medical care, health care, safety of the patient.
6.2.2. Physician promises of particular surgical results
6.3. Concealment of cause of action
7. Analysis
7.1. Informed consent
7.1.1. Ms. Mills arugment
7.1.1.1. Ms. Mills alleged that Dr. Pate had failed to adequately disclose information to her as to the second liposuction.
7.1.1.1.1. Ms. Mills asserted that if risks and hazards were disclosed, she would have refused the treatment.
7.1.2. Dr. Pate's arugement
7.1.2.1. Dr. Pate asserts that Ms. Mills lacked evidence as to every element of informed consent to the January 2001 procedure.
7.1.2.1.1. Dr. Pate alleged she had no evidence of duty, breach, causation or harm relating to the touch-up liposuction and thigh lift.
7.2. Breech of express warranty
7.2.1. Ms. Mills arugment
7.2.1.1. Ms. Mills stated that Dr. Pate made the following claims: 1. she was a suitable candidate for surgery and 2. after liposuction surgery, she would look beautiful and that she would have smooth skin without ripples, bulges, or bags.
7.2.1.1.1. Ms. Mills also alleged that Dr. Pate breached the warranty, because the services he provided did no confirm to the character and quality of the services described, which left her with irregularities to her skin and body.
7.2.2. Dr. Pate's arugment
7.2.2.1. Dr. Pate stated that quality and characteristics of the services sold were related to their patient-client relationship.
7.2.2.1.1. Dr. Pate went on to say that the representations are not inseparable from her negligence claims against him.
7.3. Concealment of cause of action
7.3.1. Ms. Mills failed to present sufficient evidence to raise a fact issue on her fraudulent concealment claim.
8. Conclusion
8.1. Informed consent
8.1.1. Courts ruled in favor of Dr. Pate
8.2. Breech of express warranty
8.2.1. Courts ruled in favor of Ms. Mills