Tuesday, November 12, 2013

Mills v. Pate case brief

Mills v. Pate case brief summary
225 S.W.3d 277 (2006)

Plaintiff patient appealed the summary judgment granted by the 346th District Court of El Paso County, Texas in favor of defendant doctor in her action for negligence alleging that the doctor failed to properly warn and obtain her informed consent with respect to the outcome of liposuction procedures and the need for future treatment.

The patient experienced skin irregularities after liposuction. A second surgery by the doctor did not help, and subsequent surgery by another plastic surgeon was necessary.


  • The court held that the patient's informed consent claims relating to the first surgery were barred by the statute of limitations in former Tex. Rev. Civ. Stat. Ann. art. 4590i, § 10.01. 
  • Fraudulent concealment did not toll the statute of limitations to that claim because the patient knew of the irregularities six months after the surgery. 
  • Also, while the doctor's motion could have been more specific in addressing the challenged elements of the claims, the specificity required under Tex. R. Civ. P. 166a(i) dealt with evidentiary support for an element of a claim, not the evidentiary components that may prove an element of the cause of action. 
  • Further, at the time of the second surgery, the doctor's informed consent form included dissatisfaction with cosmetic results and thus there was no evidence that the doctor failed to obtain the patient's informed consent. 
  • However, the patient presented evidence to support her common law claim for breach of express warranty regarding the doctor's promised results.


The court affirmed the trial court's judgment as to the informed consent claims, but reversed as to the breach of warranty claim.

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