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Lovely v. Percy4/1/2005
{ } Plaintiff-appellant, Crystal Lovely, appeals from a summary judgment rendered against her on her claims for breach of oral contract, fraud, and medical malpractice. Lovely contends that the trial court erred in rendering summary judgment against her because she demonstrated the existence of genuine issues of material fact with regard to each of her claims.
{ } We conclude that Lovely did present evidence creating a genuine issue of material fact with regard to whether an oral contract existed. Therefore, the trial court erred by rendering summary judgment on this issue. We further find that the trial court did not err in rendering summary judgment against Lovely on her claims for fraud and medical malpractice. Accordingly, the judgment of the trial court is affirmed in part and reversed in part, and this cause is remanded for further proceedings.
I.
{ } The facts relevant to this appeal are gleaned from the pleadings and affidavits of the parties and from Lovely's deposition testimony, all of which were submitted in support of, or in opposition to, the defendants-appellees' motion for summary judgment.
{ } In 2003, Lovely visited the offices of Premiere Plastic Cosmetic and Laser Surgery Center, where she consulted with plastic surgeon Thomas Percy, M.D., regarding breast-augmentation surgery. According to Lovely, she informed Percy that she wished to have her breast size increased. Specifically, she told him that she wanted to be a size 34C. Lovely averred that Percy assured her that the surgery would accomplish this goal.
{ } Conversely, Percy averred that he gave no assurances or guarantees regarding Lovely's postoperative breast size, other than to inform her that her "breasts would most likely be between a B and C cup post-operatively." Percy averred that he never gives assurances or guarantees regarding breast size.
{ } During the consultation, Lovely decided to undergo the procedure. She was given a six-page informed-consent document. According to Lovely, no one reviewed the document with her. However, she read through the document as she was speaking to her husband on her cellular telephone. Lovely initialed the first five pages of the document and signed the last page. It is undisputed that the document contains a disclaimer stating that Lovely acknowledged that "no guarantee has been given by anyone as to the results that may be obtained."
{ } The surgery was scheduled for March 26, 2003. On that day, Lovely went to Percy's office and was provided with another document, entitled "Consent to Operation," which again stated that no guarantees had been given regarding the outcome of the surgery. Although Lovely signed the document, she averred that she was under the influence of drugs prescribed by Percy and that the drugs made her so drowsy that her husband had to carry her into the office.
{ } Following the surgery, Lovely made follow-up visits to Percy's office. During one of those visits, Percy gave her a piece of paper on which was written the size and style of bra that he wanted Lovely to purchase. The paper had Percy's office address and telephone number typeset at the top. The paper had the following in handwriting: "34C Cup Long Line Style 1805."
{ } Lovely contends that following surgery and aftercare, her breast size is less than a 34B. She filed suit against Percy and Premiere, alleging claims for breach of oral contract, fraud, and medical malpractice.
{ } Percy filed a motion for summary judgment in which he argued that the claim for breach of contract must fail because, in reality, it is a claim for medical malpractice. Percy also presented his ow
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