1. Impact
1.1. MacFarlane v. Burke 2011
1.1.1. Alleges Burke failed to advise her of potential complications and obtain an informed consent for the proper right knee replacement procedure
1.2. Collins v. Snow 2006
1.2.1. Collins sues former attorney Snow for legal malpractice in suit against Dr. Gordon for improper informed consent of injection of Panglobulin resulting in death of his wife
1.2.1.1. Malpractice suit founded on informed consent from foundation of Mills v. Pate
2. Importance
2.1. A health care professional would care about Mills v. Pate because informed consent must be obtained so that the patient is aware of the risks and benefits of the procedure. Also, breach of express warranty is important so that health care providers are aware of the risks when promises are made for results and liability if the results are not obtained.
3. Influence
3.1. Healthcare protocol mandates that informed consent is always obtained and given by a healthcare provider that is aware of full range of procedure
3.2. Common healthcare practice is not to make promises of a result, as the provider can be held to the promise.
4. Facts
4.1. Parties
4.1.1. Jocelyn Mills, Liposuction patient, plaintiff
4.1.2. Dr. John Pate, Plastic Surgeon, defendent
4.2. What happened?
4.2.1. Ms. Mills wanted liposuction, contacted Dr. Pate after hearing his advertisement
4.2.2. Ms. Mills made an appointment with Dr. Pate and he told her he would make her beautiful
4.2.2.1. No bags, sags, and smooth skin
4.2.3. Dr. Pate explained the liposuction technique, incisions, risks, complications and anesthesia
4.2.4. Dr. Pate explained long-term results may require crescent tuck to the abdomen or medical thigh lift
4.2.5. Her version
4.2.5.1. Was not told of any of the possible risks, only given a brochure
4.2.5.2. Was not told of potential need for further procedures , irregularities, or adverse effects
4.2.5.2.1. Nothing was said about her age or smoking status that could cause sagging or ripples
4.2.5.3. Thought 2nd liposuction was just touch up work
4.2.5.3.1. was told that the thigh lift would take care of baggy/saggy skin
4.2.5.3.2. Dr. Pate didn't talk to her about any risks from procedure
4.2.5.4. If she knew that a body lift was needed, she wouldn't have had the procedure
4.2.6. 11-17-99 - Ms. Mills signed informed consent
4.2.6.1. Possible side effects: discomfort, bruising, pigment change, scarring, and swelling for up to 6 months
4.2.7. 12-2-99 - Dr. Pate performed first liposuction procedure
4.2.7.1. Surgery on abdomen, hips, flanks, and thighs
4.2.7.2. She was charged for this surgery
4.2.7.3. She followed all of the post-operative instructions
4.2.8. 3-4 months after surgery she noticed irregularities in her skin
4.2.8.1. 2 distinct rolls under right breast in upper abdomen
4.2.8.2. skin on her thigh was sagging in the front and inside down to her kneecaps
4.2.9. 6 months after 1st surgery - complained to staff about irregularities
4.2.9.1. told not to worry as it was swelling
4.2.9.2. Ms. Mills was unhappy with the results
4.2.9.3. office staffcautioned to express concerns delicately to Dr. Pate or he wouldn't repair it
4.2.10. after 6 month period she mentioned the irregularities to Dr. Pate and expressed dissatisfaction
4.2.10.1. told her to pay me to do a thigh lift and i'll touch it up
4.2.10.2. her understanding that Dr. Pate would perform a 2nd surgery of medial thigh lift and touch up on liposuction
4.2.10.2.1. she would be charged for the medial thigh lift and the touch up procedure would be free of charge
4.2.11. 1-9-01 - Ms. Mills signed informed consent for 2nd surgery
4.2.12. 1-16-01 - Ms. Mills signed consent form to lower abdominal bilateral hip flank liposuction and thigh lift
4.2.12.1. disclosed risks: dissatisfaction with cosmetic results, possible need of future revision to obtain improved results, poor wound healing, recurrence of original condition or uneven contour
4.2.12.2. after 2nd surgery felt soreness around the incision on her legs. was told swelling. bagging and sagging. rolls moved from her right side to her left, below her navel
4.2.12.3. didn't look the way Dr. Pate told her it would look.
4.2.13. 8-30-01 - Ms. Mills had last appt with Dr. Pate
4.2.13.1. Dr. Pate told her she should have paid him to do a tummy tuck or abdominoplasty
4.2.14. 9-01 - Ms. Mills went to see Dr. Miller
4.2.14.1. was told he could fix her complaints with minimum of three surgeries
4.2.14.2. referred her to Dr. Gilliland, specialist in body contouring
4.2.15. 10-01 - Ms. Mills consult with Dr. Gilliland
4.2.15.1. body lift needed to correct irregularities from liposuction
4.2.15.2. Dr. Gilliland told Ms. Mills that Dr. Pate's care had been inadequate
4.2.16. Dr. Gilliland performed body lift and redoing of thigh lift
4.2.16.1. desired body shaped was achieved
4.3. Procedural history
4.3.1. 1-23-02 - Ms. Mills notifies Dr. Pate of her intent to sue
4.3.1.1. Medical Liability and Insurance Improvement Act
4.3.2. 1-23-03 - Ms. Mills files suit against Dr. Pate for medical malpractice
4.3.2.1. alleges negligence by failing to properly warn and obtain her informed consent
4.3.2.2. amended petition including breach of express warranty claim
4.3.3. case moves to trial court for further proceedings
5. Issue Before the Court
5.1. Should the case move to trial court for review of informed consent and breach of express warranty
6. Rule of Law
6.1. Informed Consent
6.1.1. reasonably complete and understandable
6.1.1.1. proposed treatment
6.1.1.2. risks and benefits of treatment
6.1.1.3. probable course of recovery or recuperation
6.1.1.4. physician must communicate
6.2. Breach of Express Warranty
6.2.1. fails to perform certain service
6.2.2. promises treatment will yield a specific result
7. Analysis
7.1. Courts analysis of informed consent
7.1.1. Allegation that Dr. Pate had failed to adequately disclose risks and hazards on 2nd liposuction
7.1.1.1. Dr. Pate says that Ms. Mills lacked evidence of 1-01 procedure to duty, breach, causation, or harm
7.1.2. TEX.REV.CIV.STAT. art. 4590i section 6.02 -
7.1.2.1. recovery may only be obtained "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"
7.1.2.2. plaintiff may not recover for negligence unless proves both that he wouldn't have consented to treatment had he been informed of the undisclosed
7.1.3. Ms. Mills signed informed consent prior to 2nd surgery
7.1.3.1. complaint is that she was already suffering
7.1.3.2. no evidence that Dr. Pate failed to obtain Ms. Mills informed consent on 2nd surgery
7.2. Courts analysis of breach of express warranty
7.2.1. Dr. Pate asserts that Ms. Mills does not have evidence for breach of warranty claim and it is a reattempt to recast negligence claim
7.2.1.1. must be based on a claimed departure from an accepted standard of medical care, health care, or safety of the patient
7.2.1.1.1. examine underlying nature of the claim
7.2.2. Promise that their treatment will yield a specific result but does not
7.2.3. Ms. Mills alleges these claims were made
7.2.3.1. Suitable candidate for the surgery
7.2.3.2. After liposuction surgery, she would look beautiful, smooth skin without ripples, bulges, or bags
7.2.4. Relying on Sorokolit precedent, if a physician promises particular results for the surgery he may be held liable for breach of express warranty
7.2.4.1. Ms. Mills presented evidence supporting the promised results and injuries suffered