1. Issue Before the Court
1.1. Whether or not Dr. John Pate was negligent in his treatment to Joyceline Mills by providing a lack of informed consent for procedures performed and if a breach of express consent was encountered.
2. Rule of Law
2.1. Informed Consent
2.1.1. Informed consent is the agreement to permit a medical procedure after disclosure of all relevant facts needed to make an intelligent decision
2.1.2. Attempting to prove a lack thereof.
2.2. Express Warranty
2.2.1. Physicians are liable if they promise that a particular treatment will yield a specific outcome and it does not.
2.2.2. Attempting to prove a breach of warranty.
3. Analysis
3.1. Ms. Mills felt she had been misinformed of the side effects of the procedures performed
3.1.1. Ms. Mills argued she would not have had the procedure done if she knew she would have to have multiple follow up procedures
3.1.1.1. Was not satisfied with results she was promised.
3.2. Dr. Pate defended he told her all the risks associated with the liposuction procedure and a follow up procedure may be needed.
3.2.1. Dr. Pate "specifically disclosed" the risks to the second procedure he performed on Ms. Wells including dissatisfaction of results.
4. Conclusion
4.1. On the issues of:
4.1.1. Informed Concent
4.1.1.1. Ruled in favor of Dr. Pate
4.1.2. Breach of Express Warranty
4.1.2.1. Ruled in part of Ms. Mills
4.1.2.1.1. Some of Dr. Pate's representations of the outcome of surgery were actionable as an express warranty claim.
4.1.2.2. Reversed in part and remand the cause to the trial court for further proceedings
5. Facts
5.1. Parties
5.1.1. Joyceline Mills, Appellant
5.1.2. Dr. John Pate, M.D., Appellee
5.2. What Happened?
5.2.1. Ms. Mills, the patient, filed a lawsuit against Dr. Pate.
5.2.2. Dr. Pate, surgeon, performed liposuction and a thigh lift of Ms. Mills.
5.2.3. September 29, 1999: Ms. Mills met with Dr. Pate about removing fat bulges on her abdomen, hips, and thighs.
5.2.4. Dr. Pate told Ms. Mills she "was going to be beautiful after having liposuction" and "all the little bulges and sags in her skin would be taken care of through the liposuction procedure".
5.2.5. According to Dr. Pate's notes, he explained the technique, incisions, risks, and complications of the surgery and anesthesia.
5.2.5.1. Informed her a small procedure may be needed after the initial procedure to tuck her skin.
5.2.5.2. Informed Ms. Mills her skin quality would not change and irregularities frequently occur.
5.2.6. November 17, 1999: Ms. Mills signed an informed consent and a permission to perform the surgery.
5.2.6.1. Consent for listed the following possible side effects from the liposuction procedure: discomfort, bruising, pigment change, scarring, swelling for up to six months.
5.2.7. December 2, 1999: Dr. Pate performed the first liposuction procedure.
5.2.7.1. Ms. Mills followed all post-op instructions.
5.2.7.2. After the swelling went down, Ms. Mills complained to Dr. Pate about two distinct rolls under right breast and her skin on her thighs was sagging.
5.2.7.2.1. Was told by staff it was swelling (within six months)
5.2.7.2.2. After six months, rolls had not gone away
5.2.7.2.3. Ms. Mills delicately mentioned to Dr. Pate about the irregularities and expressed her dissatisfactions.
5.2.8. January 9, 2001: Ms. Mills signed an informed consent form for the second surgery.
5.2.9. January 16, 2001: Ms. Mills signed a form consenting to a lower abdominal bilateral hip flank liposuction and the thigh lift.
5.2.9.1. Form specifically disclosed: dissatisfaction with cosmetic results, possible need for future revision to obtain improved results, poor wound healing, recurrence of original condition, and uneven contour.
5.2.9.2. Ms. Mills was dissatisfied with second procedure noting sagging to her thighs, rolls had moved form right, upper side to lower, left abdomen.
5.2.9.2.1. Expressed to Dr. Pate and Ms. Mills was told it was swelling.
5.2.10. August 30, 2001: Ms. Mills had her last appointment with Dr. Pate.
5.2.11. Ms. Mills met with Dr. Miller, plastic surgeon, a month later.
5.2.11.1. Dr. Miller referred her to Dr. Gilliland in Houston.
5.2.11.1.1. Ms. Mills met with Dr. Gilliland a month later
5.2.11.1.2. Ms. Mills was told it would take a body lift to fix problems.
5.2.11.1.3. Dr. Gilliland told Ms. Mills that Dr. Pate's care and treatment had been inadequate.
5.2.12. January 23, 2002: Ms. Mills notified Dr. Pate of her intent to sue under the Medical Liability and Insurance Improvement Act.
5.2.13. January 23, 2003: Ms. Mills filled suit against Dr. Pate for medical malpractice.
5.2.13.1. Alleged Dr. Pate was "negligent by failing to properly warn and obtain her informed consent with respect to the probable outcome of the liposuction procedures and the need for future treatment and by causing and failing to correct the abdominal irregularities.
5.2.13.1.1. Later amended to include breach of express warranty.
5.3. Procedural History
5.3.1. January 23, 2003: Suit filled in trial court.
5.3.2. 346th District Court, El Paso County, Peter Peca, J., granted physician summary judgement.
5.3.2.1. Patient appealed.
5.3.3. June 1, 2006: judgment by David Wellington Chew, J., 225 S.W. 3d 277 Court of Appeals of Texas, El Paso