225 S.W.3d 277 Mills v. Pate Texas Court of Appeals

1. The Trial Courts found that Ms. Mills did not have evidence to support an lack of informed consent or breach of warranty claim based on expired Statue of Limitations. Therefore, Dr. Pate was granted a Summary Judgement and No-evidence summary judgement.

2. Court Appeals heard a case in which Ms. Mills was filing a case to reconsider her claim of negligence, lack of informed consent and breach of warranty related to a liposuction procedure that she felt did not produce the results she expected and the physician promised. Ms. Mills had two liposuction procedures performed and thus signed two consent forms for each surgery. Each procedure she claims caused further body irregularities which lead her to have a plastic surgery performed by another physician in order to correct the body contours.

3. Issue: what are the parties fighting about, what are the issues before the court?

3.1. #1: Was the trial court correct in granting Dr. Pate no-evidence motion because it lacked specificity in challenging the evidentiary support (which is barred under Rule 166a(i)?

3.2. #2: Was the trial court correct in granting Dr. Pate no-evidence of motion related to the cause of action for failure to obtain informed consent and breach of warrant

3.3. #3 Was the trial court correct in granting Dr. Pate motion for Summary judgement despite assertion that genuine issue of material existed and issue of material existed proving fraudulent concealment of claims.

4. Rule: what are the rules that are being considered being considered by the courts?

4.1. The Rule of Statue of Limitations finds that no health care liability claim can begin unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the the subject of the claim or hospitalization for which is made is completed (TEX.REV.CIV.STAT. art. 4590i, section 10.01)

4.2. The Rule of Fraudulent Concealment requires the plaintiff to show that the health-care provider actually knew a wrong occurred, had a fixed purpose to conceal the wrong, and did conceal the wrong from the patient. (Shah, 67 S.W.3d at 841, Earle, 998 S.W.2d at 887)

4.3. The Rule of No-evidence Summary Judgement must state the specific elements as to which there is no evidence.(TEX.R.CIV.P. 166a(i), Johnson v. Brewer & Prichard, P.C. 73 S.W.3d 193 (Tex.2002), In re Estate of Swanson, 130 S.W.3d 144, 147 (Tex.App.-ElPaso 2003, no pet.)

4.4. The Rule of Breach of Warranty refers to the failure of a seller to fulfill the terms of a promise, claim or representation made concerning the quality or type of product. The seller must stand behind these assertions. (Southwestern Bell Tel. Co v. FDP corp., 811 S.W.2d 572, 576-77 & n. 3 (Tex.1991--noting elements of a breach of warranty)

4.5. The legal principle of Informed Consent: Agreement to permit a medical procedure after disclosure of all relevant facts needed to make an intelligent decision (Showalter,2017, pg587.)

5. Analysis: Considering the facts and knowing what the Rules are, are the legal requirements met? Are the elements for the Rules present?

6. Conclusion: what did the courts decide?

6.1. There was no reversal of granting of Dr. Pate No-evidence summary judgement on Mills informed consent claim.

6.2. Reversed the trail courts decision on granting Dr. Pate No-evidence summary judgement (related to Mills breach of warranty claim) based on the affirmative defense under the Statue of frauds

6.3. Allowing further proceedings related to Mills cause of action related to the claim of Breach of Express Warranty to be decided in the trial courts

7. Impact: Identify and describe at least two cases that have cited the holding

7.1. Fraudulent Concealment: Sha, 67 S.W.3d at 846 finds which found that reassurance given by physicians as a patient heals does not prove or show concealment.

7.2. Statue of Limitation: Earle v. Radliff, 998 S.W.2d 882 finds that if the date of the tort is ascertainable, limitations began on that date. A patient cannot use any of the two remaining requirements related to the Statue of Limitations that would favor their case.

8. Importance: evaluate why a health care professional would care about care about the decision

8.1. A Health care provider should care about this decision because a signed consent form is traditional thought as your "sure safe guard" when adverse events occur during a procedure and a patient wants to sue. I learned that a signed informed consent form actually an affirmative defense but still requires further litigation and cannot turn out in the medical providers favor.

8.2. Additionally, medical personnel need to be cautious about the terminology ("best care", "highest quality") when speaking with patients and their families. If these terms do not match the expectations of patients and families, this can set up a conflict and division during treatment.

9. Influence: Describe at least two current business practices that have been influenced by the holding

9.1. Breach of Warranty:

9.1.1. Advertising or sale literature put out by healthcare systems Marketing/Advertising Departments or MD offices can become warranties related to assurances of high quality health care or healthcare personnel care "competent", "the best", "top", ect. An example of a court case that currently affects the Marketing and Advertising departments in healthcare is Boyd v. Albert Einstein Medical Center 547 A.2d 1229 (Pa Super.Ct. 1988)

9.2. Informed Consent:

9.2.1. A study published in the Journal of the American College of Radiology found that in addition to in-person and written consent process, video-assisted consent provided a benefit of increased understanding in procedure, alternatives and potential risks and benefits. It found a decrease time spent during the in-person portion of the consent process. In practices, this has a benefit of time saved, thus affecting work flow (Thakar (December 19,2017), "Video-aided tools show promise for improving informed consent process", Radiology Business)

9.2.2. In Shinal v. Toms, he Supreme Court of Pennsylvania, overturning a Superior Court’s order, ruled that a jury could not consider information provided by the physician’s qualified staff in deciding whether a physician obtained informed consent.

9.2.3. JOSEPHINE WILSON, Appellant, v. P.B. PATEL, M.D., P.C., and ROHTASHAV DHIR, M.D., Respondents. No. SC 95890 Supreme Court of Missouri decided on May 16, 2017. The issue of informed consent, other state courts have agreed that evidence of it is irrelevant to a claim of medical negligence.

10. Breach of Warranty and Rule of No-evidence Summary Judgement (PLAINTIFF) Ms. Mills believed Dr. Pate made mis-representations of the quality and characteristics of his services. She had fat bulges on her abdomen, hips and thighs that she wanted removed. At the initial consultation, she claims Dr. Pate told her that after liposuction, she was going to be “beautiful” which meant her skin would be smooth (no ripples, bulges or bags) and no “pooches”. She was shown post-procedural patients whom all had smooth skin and no sagging skin. After two liposuction surgeries, she had irregularities such as rolls under her right breast and sagging skin in front, side and inside her thighs. Precedence believed her case rest on was Sorokolit v. which found that a physician can be held liable for promises of particular result. Dr. Pate in this case should be held liable for Breach of Warranty. (DEFENDANT) Dr. Pate believed there was no evidence of Breach of Warranty. The consultation regarding the procedure was related to the physician-patient relationship. Dr. Pate stood on the premise of bargaining with respect to a warranty claim. In order to show a breach of warranty, elements of the claim such as sale, representations, basis of the bargain, breach, notices, or (specifically) a signed writing setting out the alleged basis of the bargain between parties. Additionally, Dr. Pate felt that the action of Breach of Warranty was a way to reintroduce her claim of Informed Consent and her claim was barred under the Medical Liability and Insurance Improvement Act (which needs to show a physician did not meet the accepted standard of care for cosmetic surgery). From this, Dr. Pate was asking for the Courts to re affirm the trail courts No-evidence summary judgement. (COURTS) The court that affirmed Ms. Mills deposition concerning her claims of mis-representation, promised results and injuries was credible evidence and not separate from her neglect claim as well. While they agreed with Dr. Pate’s interpretation of Fraud statue under the Medical Act, this was not a “functional equivalent” for Ms. Pills claim. At the same time, they found that the lack of writing is an affirmative defense in which Dr. Pate must use as a defense and prove. This verdict, over-ruled the trial courts granting of a No-evidence summary judgement.

11. Legal Principle of Informed Consent and Statue of Limitations (PLANTIFF) Despite signing a consent form, Ms. Mills contends that she was never informed about any risks or adverse effects related to the procedure. With respect to the Consent process, she states that she only had conversation with Dr. Pate regard the benefits and positive outcomes to expect and shown a brochure to read and sign. Ms. Mills attempted to present that the informed consent failed to create a level of comprehension that would possibly lead Ms. Mills to a decision not to have the procedures. No legal precedents were presented. (DEFEENDANT) Dr. Pate provided a (2) copies of the Consent Form which contained the essentials of a usual Consent Form. Dr. Pate did admit that the consent form did not speak to the possibility of expected change to skin quality and contour irregularities. Furthermore, Dr. Pate contends that her complaints related to Informed Consent are falls outside of the 2-year statute of limitation under the Medical Liability and Insurance Improvement Act. (COURTS) The courts began by outlining the dates of the two signed Consent forms: November 17, 1999 and January 9, 2001. Referencing TEX.REV.CIV.STAT. art.4510i, 10.01, the courts laid out the (3) possible dates at which the statue of limits begins: a.) the date of the occurrence of the breach or tort, b.) the last date of the relevant course of treatment, c.) the date of hospitalization. Also referencing Earle v. Ratliff, the courts stated that if the date of the tort is known, limitations should begin on that date. The courts found that December 2, 1999 (date of the surgery and essentially of alleged failed informed consent) as the date of the alleged tort. Unless her claim of fraudulent concealment can be shown, informed consent is not permissible by the statue of limits

12. Rule of Fraudulent Concealment (PLANTIFF) Ms. Pate claim was based on the evidence that Dr. Pate knew she had abnormal contour irregularities but them off as normal post procedural swelling. Before having the second surgery performed, he added the words “uneven contour” which were never listed on the first consent. (DEFENDANT) Dr. Pate rejected the claim of fraudulent concealment. There appears not to be any legal argument put forward as the burden of proof lays with the Plaintiff. (COURTS) The courts begin by outlining the requirements for establishing Fraudulent Concealment: the plaintiff must show the health care provider “knew a wrong occurred, had a fixed purpose to conceal the wrong, and did conceal the wrong from the patient.” Also, outlining the limitations related to claims of Concealment: ends when the patient discovers the fraud or could have discovered the fraud with reasonable diligence. The courts did not find evidence of concealment when Dr. Pate stated the irregularities Ms. Mills complained were swelling, therefore “having a fixed purpose to conceal the wrong”. Precedence stood on was Shah, 67 S.W.3d at 846 which found that reassurance given by physicians as a patient heals does not prove or show concealment. Additionally, the tort was found to have the alleged tort on December 2, 1999, which falls outside of the 2 year statue of limitations

13. Facts:

13.1. Joyceline Mills Appellant v. Dr. John Pate Appellee