1. Analysis/Application
1.1. Informed Consent
1.1.1. Mills claims she would not have the surgery if Dr. Pate had adequately disclosed risks and hazards inherent in 2nd liposuction
1.1.1.1. under TEX.REV.CIV.STATE. art. 4590i, section 6.02, and Harfiel V. Owen 618 S.W.2d 902, 905, plaintiff must prove they would not have consented to treatment if they were informed of undisclosed risks AND that they were injured by the occurrence of the risk
1.1.1.1.1. Although it appears risks may not have been disclosed in the first surgery, this lawsuit is specifically about the 2nd, which clearly states the risk in the touch-up procedure
1.2. Breach of Express Warranty
1.2.1. Dr. Pate asserts that this claim is simply the negligence claims recast, so the court must determine if the claim is based on the physician's breach of the accepted standard of medical care
1.2.2. Mills says Dr. Pate told her (1) she was a suitable candidate for surgery and (2) after liposuction, she would look beautiful and have smooth skin without ripples, bulges, or bags, and of course this did not result.
1.2.3. Sorokolit shows that a physician can be held responsible for promising particular surgical results that are not accurate, and that the claim does not require judgement on meeting the standard of medical care
1.2.3.1. Therefore, although no standard breach of care, Dr. Pate promised something he did not deliver.
2. Rule of Law
2.1. informed consent
2.1.1. Patients decide what to do with their body with all the facts before them. Undisclosed information could change the decision.
2.1.1.1. Doctors provide all the information, DO NOT make the final decision whether to do the procedure or not. They cannot use their knowledge to pressure patients to make a specific choice, especially when one option financially benefits the provider.
2.2. breach of express warranty
2.2.1. Consideration; Dr. Pate offered skin without bulges in return for Mills' money. Mills held up her end of the contract, but Dr. Pate did not.
3. Issue
3.1. Was there sufficient evidence of negligence, lack of informed consent, and breach of express warranty to overturn the summary judgement?
4. Facts
4.1. Parties
4.1.1. Joyceline Mills
4.1.1.1. Patient
4.1.2. Dr. John Pate
4.1.2.1. Cosmetic Physician
4.2. what happened
4.2.1. Mills went to Dr. Pate for liposuction, specifically to remove fat bulges on abdomen, hip, and thighs. Mills signed informed consent and permission to perform surgery which states that only one treatment is typically necessary but a touch up could be done free of cost.
4.2.1.1. The form did not state the the quality of skin will not change and patient may have ripples, indentations, or abdominal abnormalities after liposuction
4.2.1.2. First procedure: December 2, 1999
4.2.2. After 6 months Mills was unhappy with results, and Dr. Pate stated he would do a touch up if she paid for a thigh lift (which the disclosure mentioned prior to the first surgery).
4.2.2.1. Mills complained less than 6 months after each surgery, but was repeatedly told it was normal swelling
4.2.2.2. Dr. Pate stated she would have smooth skin, no ripples, bulges, and bags after the 2nd procedure
4.2.2.2.1. She consented to 2nd surgery which occurred on January 16, 2001
4.2.3. After 2nd surgery, Mills stated her rolls had moved from her right side to her left, below her navel, and she still had some bagging and sagging. At her last appointment with him on August 30, 2001, Dr. Pate said she should have paid him to do a tummy tuck or abdominoplasty, although they had never discussed abdominoplasty and Dr. Pate had told her he did not think she would need a tummy tuck.
4.2.4. A month later, Mills went to see Dr. Mill who referred her to Dr. Gilliland, who stated Dr. Pate's care and treatment of Mills had been inadequate, and recommended a a body lift and abdominoplasty, which included re-doing the thigh lift (and is a much more extensive procedure).
4.2.4.1. Mills was satisfied with the results of Dr. Gilliland's work
4.2.4.1.1. She stated that if Dr. Pate had told her a body lift was required, she would not have had the procedure in the first place.
4.3. procedural history
4.3.1. 1/23/02 Mills notified Dr. Pate of her intent to sue
4.3.2. 1/23/03 she filed suit against Dr. Pate for medical malpractice
4.3.2.1. specifically alleging that Dr. Pate was negligent by failing to properly warn and obtain her informed consent for likely outcomes of the procedures and need for future treatment, and failing to correct the abdominal irregularities
4.3.2.1.1. Mills later amended the petition to include a breach of express warranty claim
4.3.3. No evidence of failure to obtain informed consent due to 2nd surgery signed papers
4.3.3.1. Court granted summary judgement to her common law claim for breach of express warranty
4.3.4. Mills appealed
4.3.4.1. informed consent upheld, breach of express warranty overturned
5. Influence
5.1. Guarantee of Results
5.1.1. Do not oversell services or abilities or promise specific results
5.2. Informed Consent
5.2.1. Ensure patient understands all possible outcomes
6. Importance
6.1. There is a difference between meeting standards of care and making promises you cannot guarantee.
6.2. Must make sure that you do not overstep and oversell your abilities, and ensure patients understand all possible outcomes.
7. Impact
7.1. Followed
7.1.1. Paragon General Contractors, Inc. v. Larco Constr., Inc., 227 S.W.3d 876, 2007 Tex. App. LEXIS 4949
7.1.1.1. General Contractor sued SubContractor for overstating abilities and not properly caulking windows.
7.1.1.1.1. subcontractor warranted in contract that work would be free from defects
7.1.2. Collins v. Snow, 2006 Tex. App. LEXIS 8939
7.1.2.1. Collins sued former attorney, Snow, in a wrongful death case where Collin's wife died. Collins argued Snow should have established lack of informed consent.
7.1.2.1.1. Collins was unable to prove that he, or a reasonable person, would have made a different decision had they known all of the facts and been fully informed.
7.2. Distinguished
7.2.1. Key v. Viera, 2009 Tex. App. LEXIS 1041
7.2.1.1. Key sued Dr. Viera for common law fraud, breach of express warranty, and misrepresentation. However these claims were properly classified under Texas Medical Liability and Insurance Improvement Act. The representations were not guarantees of a particular result, and there was no breach of standard of care. In addition, the patient did not file until nearly 4 years after surgery, outside of the 2 year statute of limitations.
7.2.1.1.1. Key cited Mills V. Pate to support that the motion for summary judgement lacked specificity, however, Mills judgement was for no-evidence motions for summary judgement whereas this case was for a traditional motion for summary judgment.
7.2.2. Hunsucker v. Fustok, 238 S.W.3d 421, 2007 Tex. App. LEXIS 5460
7.2.2.1. Hunsucker sued Dr. Fustok for negligently performing breast implant surgery. This case was dismissed because Hunsucker failed to file an expert review.
7.2.2.1.1. Hunsucker's claim arose from how the surgery would be performed, NOT the results of the operation as in Mills V. Pate.