1. Analysis Application
1.1. Lack of confirmed Consent
1.1.1. Mills- Mills argues that Dr. Pate had failed to adequately disclose information to her as to the second liposuction and if he had disclosed the risks and hazards inherent in the procedure, she would have refused such treatment
1.1.1.1. A plaintiff must prove both that he would not have consented to treatment had he been informed of the undisclosed risk and that he was injured by the occurrence of the risk of which he was not informed (Hartfiel vs. Owen)
1.1.1.1.1. There was not sufficient evidence to support this claim
1.1.2. Pate- Argues Mills lacks evidence of informed consent to the January 2001 procedure.
1.1.2.1. Prior to the second surgery, Ms. Mills signed a consent form which specifically 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.”
1.1.2.1.1. Dr. Pate did disclose the risks and hazards inherent in the touch-up liposuction procedure, which she complained had not been disclosed to her in the first procedure
1.1.3. The court- even if Dr. Pate promised Ms. Mills that the second liposuction operation would fix all of the irregularities, this fact does not create a genuine issue of material fact as to whether or not Dr. Pate adequately disclosed the risks and hazards inherent in the second surgery.
1.2. Breach of express warranty
1.2.1. Pate- argues Mills Breach of express warranty was an attempt to recast her negligence claim.
1.2.2. Mills argues Dr. Pate made the following representations to her about the quality or characteristics of his services: (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
1.2.3. Courts- claim 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.
1.2.3.1. A cause of action alleges a departure from accepted standards of medical care or health care if the act or omission complained of is an inseparable part of the rendition of medical services. It is well settled that a health care liability claim cannot be recast as another cause of action to avoid the requirements of the Act.
1.2.3.1.1. Mill would need to provide evidence the services Pate provided did not conform to the character and quality of the services described
2. Impact
2.1. Scott v. Dorel Juvenile Group, Inc.
2.1.1. Mother brought products liability action against child safety spring latch manufacturer in state court. Following removal, manufacturer filed motion for summary judgment.
2.1.1.1. Mills Vs. Pate was used as case law regarding express warranty
2.2. Atrium Companies, Inc. v. ESR Associates, Inc.
2.2.1. Mills Vs. Pate was used as case law regarding breach of warranty
2.2.1.1. The case is regarding the violation of an “Implementation Agreement”
3. Importance
3.1. Due to the fact that the court found evidence of breach of express warranty this should caution physicians regarding how they promise and present results for procedures should they fail to meet that level of care.
4. Influence
4.1. Cosmetic surgeons
4.1.1. As this case directly reflects a situation where a cosmetic surgeon led a patient to believe she was a good candidate for the procedure and would achieve certain results cosmetic surgeons should be much more careful when conveying this to potential patients.
4.2. Sales
4.2.1. Sales is another form of transaction that includes one party promising results or performance of what they sell without being able to guarantee those results to the customer.
5. Facts
5.1. Parties
5.1.1. Ms Mills, Appellant, patient who underwent liposuction
5.1.2. Dr. Pate, Appellee, physician who performed liposuction and thigh lift on patient
5.2. What Happened
5.2.1. Mills decided she wanted to have liposuction performed
5.2.2. Her version
5.2.2.1. 9/29/99 Mills had her first appointment with Dr. Pate. Mills told Pate she wanted to remove the fat bulges she had in abdomen, hips and thighs
5.2.2.1.1. Mills says as they were discussing the bags and sags being gone Dr. Pate told her "she was going to be beautiful after having liposuction"
5.2.2.2. After the 6 mon follow up from her surgery, and Dr. Pate's recommendation to do a thigh lift, Mill's understanding is that Pate would perform a medial thigh lift and a toup up on the liposuction. He would charge for he thigh life and do the touch up free of charge. Mills claims Pate never told her prior to the first liposuction that she might need a thigh lift, although she recalls it on the disclosure form.
5.2.2.3. 1/16/2001- For the second surgery, Mills claims that Dr. Pate told her that the thigh lift would take care of the baggy/saggy skin and that neither Dr. Pate or his staff talked to her about the risks.
5.2.2.4. Mills was unhappy with the second surgery and was told for several months that is was just swelling.
5.2.2.5. Mills told Pate that that the rolls had moved from her right side to her left. She was told it was swelling but they did not go away.
5.2.2.6. 8/30/2001- Mills last visit with Pate. Dr. Pate told Ms. Mills that she should have paid him to do a tummy tuck or abdominoplasty. Mills claimed he never mentioned this before and actually told her he did not think she would need a tummy tuck.
5.2.3. His version
5.2.3.1. Dr. Pate's examination notes say he explained the liposuction technique, the incisions, risks, and complications of surgery and anesthesia. He explained that long term results may require a small crescent tuck ot the abdomen or medial thigh lift because her skin tone was fair.
5.2.4. 11/17/99- Mills signed an informed consent form and a permission to perform surgery form. A form that mentioned the potential for future procedures and potential side effects.
5.2.4.1. Dr. Pate conceded that the consent form does not tell the patient that the quality of her skin will not change and that she may have ripples, indentations or adbomican abnormalities.
5.2.5. 12/2/99- Dr. Pate performed his first liposuction procedure on Mr. Mills which included her abdomen, hips, flanks and thighs.
5.2.5.1. Ms. Mills followed all of Dr. Pate's post operative instructions.
5.2.6. 3-4 Months after the procedure Mills started to notice irregularities in her skin.
5.2.7. six months after her first surgery she started to complain to Dr. Pate's staff and was told by Dr. Pate not to worry because the swelling would go away.
5.2.8. After the six month period Mills mentioned to Pate again that the swelling had not gone down. Dr. Pate told her "pay me to do a thigh lift and I'll touch it up".
5.2.9. 1/9/2001- Mills signed an informed consent form for the second surgery
5.2.10. 1/16/2001- Mills signed a form consenting to lower abdominal bilateral hip flank liposuction and the thigh lift. The form specifically disclosed the following risk "dissatisfaction with cosmetic results...possible need of future revision to obtain improved results, poor wound healing, recurrence of the original condition, and uneven contour.
5.2.11. 1/16/2001- Pate performed the second surgery on Mills
5.2.12. 8/30/2001- Mills had her last appointment with Dr. pate.
5.2.13. A month later, Mills went to see Dr. Miller, a plastic surgeon. He said he could probably fix her over a series of 3 surgeries but referred her to Dr. Gilliland because he specializes in body contouring and could provide her with better results.
5.2.14. A month later, Mills went to see Dr. Gilliland who told her it would take a body lift to correct the irregularities that resulted from her liposuction. Dr. Gilliland told Ms. Mills that Dr. Pate's care and treatment of her had been inadequate.
5.2.15. Dr. Gilliland performed an abdominoplasty and body lift. Ms. Mills was satisfied with the results.
5.3. Procedural history
5.3.1. 1/23/2002- Ms. Mills notified Dr. Pate of her intent to sue under the Medical Liability and Insurance Improvement Act
5.3.2. 1/23/2003- Ms Mills filed suit against Dr Pate for medical malpractice, alleging claims for negligence with lack of informed consent.
5.3.3. Mills later amended her petition to include a breach of express warranty claim.
5.3.4. Ms. Mills claim of informed consent was dismissed due to lack of evidence.
5.3.5. Ms. Mills claim of breach of express warranty can go to trail.
6. Issue
6.1. Whether there was sufficient evidence to support Ms. Mills claims for negligence, lack of informed consent and breach of express warranty.
7. Rule of Law
7.1. Lack of informed consent
7.1.1. claims that the patient was not informed about the risks of the treatment he received and that he would not have agreed to the proposed procedure had he known that this could be the result
7.2. Breach of express warranty
7.2.1. anything that a Physician represents to a patient about the procedure. Express warranties become part of the sales contract.