1. Can a informed consent be uncoupled from a common law contractual express warranty claim?
2. Facts
2.1. Parties
2.1.1. Mr Mills Plaintiff
2.1.2. Dr. Pate Defendant
2.2. What happened
2.2.1. plaintiff approached defendant seeking a plastic surgery operation to remove fat bulges
2.2.2. defendant suggested liposuction, told her she would be beautiful after the surgery, had the plaintiff sign a consent form and dis the operation
2.2.2.1. plaintiff was dissatisfied with the outcome of the surgery, returned for a second procedure
2.2.3. defendant again described the procedure, said it would correct outstanding issues, had the patient sign another consent form and preformed the second operation
2.2.3.1. plaintiff was again displeased
2.2.4. Plaintiff got a different procedure from a different surgeon, achieved the desired results and sued the defendant for negligence and breach of warrenty
2.3. Procedural History
2.3.1. Plaintiff sued the defendant on the grounds of medical malpractice and breach of warrenty
2.3.1.1. Malpractice claim: that defendant failed to properly warn and obtain informed consent regarding probable outcomes of the procedure and need for follow up work
2.3.1.2. breech of warranty: the defendant claimed the plaintiff was a suitable candidate for the surgery, and would be beautiful afterwards without ripples, bags or bulges
2.3.2. defendant claimed that the breech of warranty claim was an attempt to recast the malpractice standard of care claim
2.3.3. Court sided with the defendant on both charges
2.3.4. plaintiff appealed
2.3.5. Appellate court upheld the malpractice decision, but distinguished and reversed the breach of warranty decision, citing that the promises made by the defendant were separate from the informed consent and standard of care disclosures, and thus were covered under common law breach of express warrenty
3. Issue before the Court
3.1. Can the issue of express warranty be treated separately from an issue of informed consent?
4. Rule of Law
4.1. express warrenty
4.1.1. the promise of specific results or outcomes in a physician patient contract
4.2. informed consent
4.2.1. the agreement to a procedure having been explained all associated risks, options and alternatives
5. Analysis
5.1. Informed consent
5.1.1. what is the nature of the physician patient contract?
5.1.1.1. the physician promises to diagnose and treat
5.1.1.1.1. Any questions of informed consent and medical standard of care fall into this category, either in the diagnosis or treatment of the patient
5.1.1.1.2. notably, outcomes are not covered under the physician patient contract
5.1.1.2. the patient promises to pay
5.2. breach of express warrenty
5.2.1. outcomes and results are not a part of the physician patient contract
5.2.2. any such agreements or promises must be covered under common contract law,
5.2.3. thus the two issues can be treated seperately
6. Conclusion
6.1. Dr. Pate did not breach informed consent
6.1.1. patient was made aware of possible risks associated with the surgeries, and signed informed consent documents
6.2. Dr. Pate did breach express warrenty
6.2.1. Dr. Pate promised outcomes which he did not deliver
7. Impact
7.1. Hunsucker v. Fustok, 238 S.W.3d 421 (Tex. App. 2007)
7.1.1. plaintiff approach defendant about having some corrective breast augmentation surgery done to repair a previous operation
7.1.2. the plaintiff requested a specific surgical technique be used, the defendant agreed
7.1.3. defendant performed the operation the way the plaintiff asked not to have it performed, plaintiff was unsatisfied with the results
7.1.4. plaintiff sued for breach of contract, and negligence
7.1.4.1. Initial ruling found in favor of the defendant, citing supreme court precedent, dismissing claim and awarding attorney's fees to the defendant
7.1.4.2. plaintiff appealed
7.1.4.3. appeals court upheld ruling, modified attorneys fees awarded to add cost of attorneys fees for appeal process
7.2. Belma Key, A/K/A Belma Keykurun v. Hector M. Viera, M.D., 01-07-00587-CV (Tex. App. 2009)
7.2.1. defendant contracted with plastic surgery practice after responding to their claims of results for face lift and liposuction treatments
7.2.2. Plaintiff expressed concern at the informed consent form which described potential adverse outcomes
7.2.3. plaintiff was again reassured of results and moved forward with the procedure
7.2.4. plaintiff was dissatisfied with the results of her procedures, requested corrective surgery, then field suit for breach of contract for expressed promises regarding procedure outcomes
7.2.5. defendants counter filed that plaintiffs claim was a medical malpractice and negligence claim, barred by statute of limitations, and that there was no evidence of the outcomes claims the plaintiff was charging
7.2.5.1. trial court found with the defendants, and denied plaintiff's motion for a new trial
7.2.5.2. Plaintiff appealed
7.2.5.3. Appeals court upheld lower court ruling
8. Importance
8.1. physicians must be extremely cautious of what they promise patients in terms of results or outcomes.
8.2. informed consent does not cover the physician if he makes promises of outcomes to the patient
8.2.1. physician is liable if results are not as promised , even if all best practices and standards of care are followed