## Facts

- Joyceline Mills consulted Dr. John Pate, a plastic surgeon, seeking liposuction to remove fat bulges on her abdomen, hips, and thighs.
- Mills testified that Pate and his staff represented that she would be “beautiful” after liposuction, which she understood as “smooth skin” without bulges, ripples, or sagging; staff also showed post-procedure photographs of other patients with smooth results.
- Pate’s notes reflected that he discussed technique, risks and complications, and that long-term results might require additional procedures due to only “fair” skin tone; Mills disputed that he adequately disclosed risks, especially given her age and smoking history.
- Mills signed written consent documents and underwent the first liposuction procedure in November 1999.
- Months later, after swelling and bruising resolved, Mills noticed skin irregularities and sagging; Pate and staff told her it was swelling and not to worry.
- Mills later underwent a second procedure after Pate allegedly promised smooth results without ripples, bulges, or bags; she signed another informed-consent form that disclosed risks.
- Mills remained dissatisfied and obtained corrective surgery from another physician involving an extensive body lift.
- Mills sued under the Texas Medical Liability and Insurance Improvement Act, alleging medical negligence and lack of informed consent, and later added breach of express warranty based on Pate’s alleged promises of specific results.
- The trial court granted Pate’s traditional and no-evidence motions for summary judgment on all claims, and Mills appealed.

## Issues

1. Whether the physician’s no-evidence summary-judgment motion adequately identified the challenged elements under Texas Rule of Civil Procedure 166a(i), or was impermissibly general and conclusory.
2. Whether the patient’s negligence and informed-consent claims were time-barred, and whether fraudulent concealment tolled limitations.
3. Whether the patient produced more than a scintilla of evidence supporting a breach of express warranty based on alleged promises of specific cosmetic results, and whether the absence of a signed writing could support no-evidence summary judgment.

## Decision

- The court held the no-evidence motion was sufficiently specific under Rule 166a(i), and the trial court properly overruled the patient’s “general and conclusory” objection.
- The court affirmed summary judgment on medical negligence and informed-consent claims, concluding:
  - claims tied to the first surgery were barred by limitations; and
  - the record did not raise a fact issue on fraudulent concealment to toll limitations.
- The court also affirmed no-evidence summary judgment on the informed-consent claim related to the second surgery for failure to produce evidence on essential elements in light of the written disclosures.
- The court reversed summary judgment on the breach of express warranty claim and remanded, holding the patient offered more than a scintilla of evidence that the physician made specific, result-oriented promises on which she relied and that were not achieved.
- The court held that any statutory signed-writing requirement for a medical “warranty of cure” operates as an affirmative defense, not an element of the patient’s warranty claim, and therefore could not support no-evidence summary judgment.

## Legal Principles

- A no-evidence motion for summary judgment must identify the specific elements as to which there is no evidence; it is sufficient if it targets elements the nonmovant must prove and is not purely conclusory.
- Medical-liability limitations are not tolled by reassurances about healing or outcomes absent evidence the defendant had actual knowledge of wrongdoing and a fixed purpose to conceal it.
- An informed-consent claim requires evidence of inadequate disclosure and causation (that the nondisclosure would have affected the decision to proceed); written consent disclosures may defeat a no-evidence challenge absent competent rebuttal evidence.
- A physician’s specific, outcome-based promises regarding cosmetic results may support an express-warranty claim distinct from negligence and informed consent when supported by evidence of promise, reliance, and nonconformity.
- A statutory requirement of a signed writing for a medical “warranty of cure” is treated as an affirmative defense; it cannot be reframed as a missing element to obtain no-evidence summary judgment.

## Conclusion

The appellate court upheld dismissal of the patient’s negligence and informed-consent theories on limitations and evidentiary grounds but allowed her case to proceed on a separate express-warranty theory because evidence of specific promised cosmetic results created a fact issue, and the signed-writing requirement functioned as an affirmative defense rather than a plaintiff’s element.


Mills v. Pate, 225 S.W.3d 277 (Tex. App.—El Paso 2006)