                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2015-CT-00334-SCT

LACY DODD AND CHARLES DODD

v.

DR. RANDALL HINES, MISSISSIPPI
REPRODUCTIVE MEDICINE, PLLC AND DR.
PAUL SEAGO

                            ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                        02/06/2015
TRIAL JUDGE:                             HON. WILLIAM E. CHAPMAN, III
COURT FROM WHICH APPEALED:               RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                SARAH LYNN DICKEY
                                         J. KEITH PEARSON
ATTORNEYS FOR APPELLEES:                 MICHAEL F. MYERS
                                         WHITMAN B. JOHNSON, III
                                         BENJAMIN COLLIER LEWIS
                                         JOHN BURLEY HOWELL, III
                                         WALTER T. JOHNSON
NATURE OF THE CASE:                      CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                             THE JUDGMENT OF THE COURT OF
                                         APPEALS IS AFFIRMED. THE JUDGMENT
                                         OF THE RANKIN COUNTY CIRCUIT
                                         COURT IS REVERSED AND REMANDED -
                                         09/14/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      COLEMAN, JUSTICE, FOR THE COURT:

¶1.   On March 25, 2011, in an effort to increase chances of conception, Lacy Dodd

underwent surgery to remove ovarian cysts and, potentially, one fallopian tube. During the

surgery, Lacy’s physician, Dr. Randall Hines, discovered that both of Lacy’s ovaries
appeared abnormal to the extent that they seemed cancerous.               Dr. Hines consulted,

intraoperatively, with his colleague, Dr. Paul Seago. Dr. Seago concluded that both ovaries

lacked any appreciable amount of normal tissue and were highly suspicious for malignancy;

he recommended that it was in Lacy’s best interest to remove both ovaries. Dr. Hines agreed

and removed both ovaries. A biopsy later revealed that Lacy’s ovaries were not cancerous.

¶2.    On May 17, 2013, Lacy and her husband, Charles Dodd, filed a pro se complaint

against Dr. Hines, Dr. Seago, and Mississippi Reproductive Medicine, PLLC (collectively

“the defendants”), claiming that her ovaries were removed without consent.1 Lacy also

alleged that the defendants were negligent in failing to obtain informed consent from the

patient and/or her family to proceed with the bilateral salpingo-oophorectomy; failing to wait

until a frozen section analysis of the biopsies was available; misdiagnosing Lacy’s condition

as malignant; removing Lacy’s ovaries; and other matters to be proven at trial.

¶3.    Prior to discovery, the defendants moved for summary judgment. The trial court

entered an order limiting the issue to be argued to consent. The trial court found that Lacy

had consented to the removal of her ovaries based on a consent form executed by Lacy prior

to the surgery and granted summary judgment in favor of the defendants. Despite the sole

issue of consent before the trial court, it entered a final judgment with respect to all of Lacy’s

claims alleged in her complaint. On appeal, the Court of Appeals determined that Lacy’s

claim was “battery-based” and held that Lacy did not give express consent for the removal

       1
         Since the surgery, Lacy has carried and delivered two children through donor eggs
and her husband’s sperm. Charles Dodd claimed that he sustained loss of consortium,
medical expenses, and other expenses incurred in having Lacy bear a child conceived with
an egg from another woman, and loss of the ability to have a child with his wife.

                                                2
of her ovaries and the consent form did not summarily provide consent to remove her ovaries.

Dodd v. Hines, No. 2015- CA-00334-COA, 2016 WL 4615034, at **5-6 (¶¶ 24, 27-28)

(Miss. Ct. App. Sep. 6, 2016).

¶4.    We agree with the result reached by the Court of Appeals. Rather than reaching a

definitive conclusion on the issue of consent, we hold that there is a genuine issue of material

fact precluding summary judgment as to whether Lacy consented to the removal of her

ovaries in accordance with the Court’s decisions in Cole v. Wiggins, 487 So. 2d 203 (Miss.

1986), and Fox v. Smith, 594 So. 2d 596 (Miss. 1992). As more fully explained below, we

reverse the trial court’s judgment and remand for further proceedings for reasons different

than those of the Court of Appeals.

                        FACTS AND PROCEDURAL HISTORY

¶5.    In January 2011, Lacy began treatment for fertility issues with Dr. Hines, a physician

practicing in the field of obstetrics and gynecology with a subspeciality in infertility

medicine. Lacy had a history of ovarian cysts and pelvic pain, as well as a family history of

ovarian, uterine, and cervical cancer. Dr. Hines recommended Lacy undergo a laparoscopic

procedure to remove her ovarian cysts as a way to resolve her fertility issues and increase her

chances of bringing about a viable pregnancy.

¶6.    Lacy authorized Dr. Hines to perform a laparoscopy with ovarian cystectomy with

possible salpingectomy, i.e., removal of ovarian cysts or cysts and possible removal of one

of her fallopian tubes. Lacy executed a consent form prior to the surgery authorizing the

procedure. The consent form also provided, in pertinent part:



                                               3
       I further consent and authorize the performance of such additional surgeries
       and procedures (whether or not presently unforseen conditions) considered
       necessary or emergent in the judgment of my doctor or those of the hospital’s
       medical staff who serve me.

¶7.    During the laparosocpy, Dr. Hines discovered that Lacy’s ovaries were extremely

abnormal to the extent that they appeared cancerous. Considering Lacy’s family history of

ovarian cancer, Dr. Hines consulted intraoperatively with Dr. Seago, a physician in the field

of gynecology and obstetrics with a subspeciality in gynecological oncology. Dr. Seago

examined Lacy’s ovaries and found that both ovaries lacked any appreciable amount of

normal ovarian tissue and were highly suspicious for malignancy. Dr. Seago believed the

removal of both ovaries to be necessary for her long term health and in her best interest and

recommended removing both ovaries. Dr. Hines agreed and removed both ovaries.

¶8.    After Lacy awoke from surgery, she learned that Dr. Hines had removed both of her

ovaries. Lacy’s caregivers sent both ovaries to a pathology lab, and a pathologist determined

that her ovaries were not cancerous; rather, she had suffered from “serous

cystadenofibroma,” a condition where a benign tumor appears cancerous.

¶9.    On May 17, 2013, Lacy and Charles Dodd filed a complaint against Dr. Hines, Dr.

Seago, and Reproductive Medicine, alleging that the ovaries were removed without consent

and that the defendants were negligent in failing to obtain her informed consent to proceed

with the removal of her ovaries, failing to wait until a biopsy could be completed,

misdiagnosing her condition, and removing her ovaries. Lacy claimed that as a direct and

proximate result of the negligence of the defendants, she sustained the following damages:

the complete inability to conceive her own child; mental and emotional distress; physical pain

                                              4
and suffering; medical expenses, other expenses incurred in travel to other medical facilities,

implanting an egg from another female and bearing a child of her husband’s, but not her

biological child; and other matters sought to be proven at trial.

¶10.   Before discovery commenced, Dr. Hines and Reproductive Medicine filed a motion

for summary judgment on December 23, 2013. Dr. Hines and Reproductive Medicine

mentioned the consent form in their motion but argued that they were entitled to judgment

as a matter of law based on the lack of causation and the statute of limitations.2 Dr. Hines’s

affidavit attached to the motion stated that the likelihood Lacy would ever have had a child

from one of her own eggs was practically nonexistent given the near total absence of

recognizable ovarian tissue. Dr. Hines stated that neither ovary had sufficiently normal

ovarian tissue to have permitted her ever to bear a child from one of her own eggs. Dr. Hines

and Dr. Seago ruled out a biopsy during the surgery because of their strong belief of the

presence of ovarian cancer, and obtaining a biopsy potentially could have spread the

presumed cancer throughout the pelvis and abdomen. Dr. Hines and Dr. Seago both agreed

that they believed it was “medically necessary” and in Lacy’s “best interests” to remove both

ovaries.

¶11.   On February 3, 2014, counsel entered an appearance on Lacy’s behalf. On April 17,

2014, Lacy filed a motion to hold Dr. Hines’s and Reproductive Medicine’s motion for

summary judgment in abeyance pending discovery. Lacy’s counsel explained that Lacy had

proceeded pro se until she had retained counsel in late January 2014. Lacy’s counsel also

       2
        The trial court did not reach the causation or statute of limitations arguments in its
eventual order granting summary judgment.

                                              5
explained that the law firm that represented Lacy prior to her filing a complaint had consulted

an expert prior to filing suit who believed there was a reasonable basis to initiate a cause of

action. Lacy’s counsel stated that a determination had not been made whether to use the

consulting expert or to retain a new expert or whether the consulting expert would be willing

to serve as a testifying expert in the case.

¶12.   On April 25, 2014, Dr. Hines and Reproductive Medicine filed a rebuttal

memorandum in support of their motion for summary judgment. Dr. Hines and Reproductive

Medicine argued that Lacy’s failure to submit sworn expert testimony to support her

allegations of negligence and causation warranted the entry of summary judgment.

¶13.   On May 5, 2014, the trial court entered an agreed order continuing the hearing on the

motion for summary judgment as well as Lacy’s motion to hold the motion for summary

judgment in abeyance. On May 22, 2014, the trial court entered another agreed order

continuing the hearings. The order provided that the parties had agreed that the motions

“save for the causation part” of Dr. Hines’s and Reproductive Medicine’s motion for

summary judgment would be heard on September 15, 2014. The September 15 hearing did

not occur.

¶14.   On October 1, 2014, the trial court entered an order holding “[a]ll matters with regard

to” Dr. Hines’s and Reproductive Medicine’s motion for summary judgment “in abeyance

except regarding the consent issue.” The trial court instructed Dr. Hines and Reproductive

Medicine to file either a supplement to their motion or a separate motion for summary

judgment “specifically addressing the consent issue, which will then be set for hearing.” The



                                               6
trial court ordered Lacy’s motion for additional time to respond to Dr. Hines’s and

Reproductive Medicine’s pending motion for summary judgment to be held in abeyance,

while reserving that Lacy be allowed to respond to the supplemental motion on the consent

issue. The trial court instructed the parties “to obtain a hearing date on the supplemental

motion for summary judgment on the consent issue once it is filed.”

¶15.   On October 16, 2014, Dr. Hines and Reproductive Medicine filed a supplemental

motion for summary judgment arguing that Lacy gave her consent for Dr. Hines to perform

any surgery or additional procedure that was considered necessary based on the consent form.

Alternatively, Dr. Hines and Reproductive Medicine argued that Lacy was unable to meet

the requirements of causation. Specifically, Dr. Hines and Reproductive Medicine argued

that Lacy “cannot show that a reasonable patient would have withheld consent had she been

informed of the risks of not removing the ovaries, which is required for her to make out a

claim for informed consent.” On October 16, 2014, Dr. Seago filed a joinder in Dr. Hines’s

and Reproductive Medicine’s supplemental motion for summary judgment.3 On October 30,

2014, Dr. Seago submitted an affidavit stating that he believed the removal of Lacy’s ovaries

was necessary for her long term health and in her best interest.

¶16.   Lacy filed a response to the supplemental motion pointing out that, although the trial

court had held all issues relating to causation in abeyance, the defendants had raised new

arguments charging Lacy with the task of proving the requirements of causation for informed

consent before the parties had engaged in discovery. “Out of an abundance of caution,” Lacy

       3
       Dr. Seago also joined in Dr. Hines’s and Reproductive Medicine’s pending motion
for summary judgment that had been held in abeyance.

                                             7
responded to the defendants’ causation arguments.

¶17.   On November 20, 2014, Lacy submitted an affidavit asserting that, prior to consenting

to the laparoscopic procedure, she never was informed that removal of her ovaries was a

known or potential risk. Lacy stated that neither Dr. Hines nor the staff at Reproductive

Medicine “mentioned or even hinted that [her] ovaries might be removed during the

laparoscopic procedure, either in writing or in [her] pre-surgical consultation with Dr.

Hines.” Lacy stated that her ovaries were removed without her consent while she was

unconscious and under anesthesia. Lacy stated that had she been informed that Dr. Hines and

Dr. Seago believed her ovaries were cancerous and had she been given a choice as to whether

to allow the removal of her ovaries, she would have elected to wait for the results of the

biopsy of her ovarian tissue and requested a second opinion so she could make a fully

informed decision. Lacy emphasized that, even if her ovaries had contained cancerous

tumors, she would not have authorized removal of her ovaries without exploring any and all

methods to preserve her ability to bear her own genetic children.

¶18.   On November 21, 2014, Dr. Hines and Dr. Seago submitted additional affidavits. Dr.

Hines stated that the consent form did not require him to conclude the surgery and awaken

Lacy to obtain specific consent prior to performing the oophorectomy when he and Dr. Seago

discovered what appeared to be ovarian cancer. Dr. Seago’s affidavit echoed Dr. Hines’s

affidavit. A notice of hearing indicated that the supplemental motion for summary judgment

was heard on November 24, 2014, but no transcript of the hearing is in the record. On

February 6, 2015, the trial court entered an order granting summary judgment in favor of the



                                             8
defendants. The pertinent portion of the trial court’s detailed order is set out below

demonstrating the exact basis for the trial court’s decision:

       [The trial court] finds that there is no genuine issue of material fact and that
       the defendants are are entitled to judgment as a matter of law on the grounds
       that the removal of the plaintiff Lacy Dodd’s ovaries was consented to and
       authorized by Mrs. Dodd in the consent form which she signed which
       specifically granted to the operating physicians the authority to perform “such
       additional surgeries and procedures (whether or not arising from presently
       unforeseen conditions) considered necessary or emergent in the judgment of
       my doctor.” Both the operating physician, Dr. Hines, and the assisting
       physician, Dr. Seago, have stated in Affidavits that the removal of Mrs.
       Dodd’s ovaries was necessary in their judgment and have explained the
       thought process behind their conclusion. The Affidavits of Dr. Hines and Dr.
       Seago were accepted by the [trial c]ourt for the purposes of explaining the
       subjective basis for the exercise of these doctors’ judgment and were not
       submitted by the defendants and not accepted by the [trial c]ourt as expert
       affidavits. The [trial c]ourt’s ruling is not based upon expert opinion, and the
       [trial c]ourt specifically notes that this Order is not based upon plaintiffs’
       failure to submit an expert affidavit in response to the [defendants’ affidavits.]
       Rather, the [trial c]ourt finds that the signed consent form at issue specifically
       included a provision which allowed the doctors to perform any procedure in
       their judgment necessary that arose during the surgery. There is no genuine
       issue of material fact that their judgment was that the procedure was necessary.
       Consequently, the procedure performed by Dr. Hines and assisted by Dr.
       Seago was consented to and authorized by Mrs. Dodd, such that she can have
       no complaint arising from the performance of the procedure. Having
       concluded that defendants are entitled to judgment as a matter of law on this
       ground, the [trial c]ourt does not reach the other grounds for summary
       judgment raised in various pleadings by the defendants. The [trial c]ourt finds
       that the defendants’ entitlement to judgment as a matter of law on this ground
       is dispositive of all claims raised in this matter.

       The Opinion of the Mississippi Court of Appeals

¶19.   On appeal, the Court of Appeals framed the sole issue before it, “The issue before us

is whether Lacy provided appropriate consent for the removal of her ovaries, eliminating her

ability to conceive.” Dodd, 2016 WL 4615034, at *2 (¶ 11). The Court of Appeals



                                               9
proceeded by stating, “[t]wo different analyses of consent exist: a consent analysis based on

assault and battery, and an informed-consent analysis based on medical negligence.” Id. at

*3 (¶ 12). The Court of Appeals continued: “Mississippi has not directly addressed when

it is appropriate to apply the battery-based analysis or the medical-negligence-based

analysis.” Id. at *2 (¶ 12).

¶20.   The Court of Appeals cited an unreported Rhode Island case for the proposition that

“there are some instances where applying the medical-negligence-based analysis as opposed

to battery-based analysis would be ‘illogical.’” Dodd, 2016 WL 4615034, at *3 (¶ 16) (citing

Spaight v. Shah-Hosseini, No. C.A. PC 04-6802 (R.I. Super. Ct. Dec. 30, 2009)). For

example, when a procedure is performed that was not considered beforehand, it would make

no logical sense to require the plaintiff to prove the doctor had a duty to disclose a material

or known risk of an uncontemplated procedure. Id. The Court of Appeals looked to a

Louisiana case for the proposition that a “battery-based” analysis is appropriate when a

procedure completely lacked consent. Id. at *4 (¶ 17) (citing Pizzalotto v. Wilson, 437 So.

2d 859, 862–64 (La. 1983)). In Pizzalotto, the Louisiana court applied the battery-based

analysis because the removal of the patient’s ovary and other reproductive organs logically

could not be considered a risk of the laparoscopic procedure that was disclosed. Id.

¶21.   Proceeding under the “battery-based analysis,” the Court of Appeals turned to the

consent form signed by Lacy and applied Barner v. Gorman, 605 So. 2d 805 (Miss. 1992).

In applying Barner, it held that Lacy’s consent form was not conclusive evidence of her

consent to remove both ovaries. Dodd, 2016 WL 4615034, at *5 (¶ ¶ 22-23). Applying a



                                              10
New Jersey case, the Court of Appeals determined that the removal of Lacy’s ovaries was

“substantially different” from the procedure Lacy had authorized. Id. at *5 (¶ 24) (citing

Samoilov v. Raz, 536 A.2d 275, 280-81 (N.J. Super. Ct. App. Div. 1987)). The Court of

Appeals went further and determined that the removal of Lacy’s ovaries was not only

substantially different from the authorized procedure, but it was “antithetical to the purpose

of the surgery.” Dodd, 2016 WL 4615034, at *5 (¶ 24). The Court of Appeals concluded:

“Clearly, Lacy did not expressly authorize the removal of her ovaries.” Id. The Court of

Appeals ultimately held:

       [W]e find that, under the battery-based analysis of consent, Lacy did not give
       express consent for the removal of her ovaries and that the consent form
       signed by Lacy did not summarily provide consent to remove her ovaries. As
       the circuit court’s decision did not reach whether or not the removal of her
       ovaries became necessary or emergent during the medical procedure that was
       consented to by Lacy, nor did the judgment address any other analysis of
       consent pertinent to theories of medical liability, we reverse and remand.

Id. at *6 (¶ 27).

¶22.   After the Court of Appeals denied their motions for rehearing, the defendants filed

petitions for writ of certiorari. Dr. Seago argues that the Court of Appeals erred by holding

Lacy did not consent to removal of her ovaries when she entered the consent agreement and

by holding summary judgment was improper on Lacy’s medical negligence claim. Dr. Seago

argues the Court of Appeals’ refusal to enforce the consent agreement is a significant

departure from the Court’s interpretation and enforcement of written agreements. Dr. Seago

also argues that only the Legislature has the power to make public policy, and the Court of

Appeals decision violates the separation of powers provision of the Mississippi Constitution.



                                             11
Dr. Seago then proceeds to argue that the “public policy decreed by the [Court of Appeals]

is a poor one.”

¶23.   Dr. Hines and Reproductive Medicine argue that the Court of Appeals interfered with

the patient/physician relationship by rewriting the consent form, shifted the burden of proof

to the defendants, and hopelessly confused battery claims with informed consent claims. Dr.

Hines and Reproductive Medicine also argue that the Court of Appeals decision will have

a profound impact on the practice of medicine, to the detriment of the patient.

                                STANDARD OF REVIEW

¶24.    “When evaluating a trial court’s grant or denial of summary judgment, this Court

applies a de novo standard of review.” City of Tupelo v. Patterson, 208 So. 3d 556, 561 (¶

15) (Miss. 2017). Summary judgment shall be rendered if “the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” Miss. R. Civ. P. (56)(c). “The evidence must be viewed in

the light most favorable to the party against whom the motion has been made, and the moving

party bears the burden of demonstrating that no genuine issue of fact exists.” Young v.

Meacham, 999 So. 2d 368, 371 (¶ 13) (Miss. 2008). “[I]f there is doubt as to whether or not

a fact issue exists, it should be resolved in favor of the non-moving party.” Id.

                                       DISCUSSION

       Whether the trial court erred by granting summary judgment based
       solely on the executed consent form.

¶25.   Most importantly, the only issue before the trial court and Court of Appeals was


                                              12
whether Lacy consented to the removal of her ovaries. At the present juncture, any analysis

as to causation or elements of Lacy’s claims that require expert testimony is premature and

not properly before the Court. No discovery has occurred, and the trial court specifically had

held all other issues, including issues as to causation, in abeyance. Moreover, the trial court

had refused to accept any expert testimony and expressly stated in its order that it did not

accept Dr. Hines’s and Dr. Seago’s affidavits as expert affidavits. Based on the record

before the Court, it is unnecessary to look to other jurisdictions for guidance.

¶26.   The case of Fox v. Smith, 594 So. 2d 596 (Miss. 1992), is factually similar to the case

sub judice. Lana Fox filed a complaint against Dr. Perrin Smith, alleging that Dr. Smith had

committed a battery to her person by the unauthorized removal of her intrauterine device

(IUD). Id. at 596. Fox sought treatment from Dr. Smith for severe low abdominal pain. Id.

at 597. Dr. Smith recommended laparoscopic surgery to determine a diagnosis. Id.

According to Dr. Smith, the two discussed possible removal of her IUD as part of the

surgery. Id. at 601. Conversely, Fox testified that they did not discuss removing the IUD

during pre-op appointments and that she insisted immediately prior to the surgery that he not

remove the device. Id. at 599. During surgery, Dr. Smith discovered that Fox’s IUD had

broken into several pieces. Id. at 602. Dr. Smith testified that the fragmented device would

present various health risks to Fox and that he removed the device in good medical judgment.

Id. at 602-03. The trial court granted a directed verdict in favor of the physician. Id. at 597.

¶27.   Even though the Fox Court stated that Fox had brought a battery claim against Dr.

Smith, the Court discussed the informed consent doctrine recognized in Mississippi. The



                                              13
Court explained “Mississippi follows the fundamental notion that the patient is master of

his/her own body.” Fox v. Smith, 594 So. 2d 596, 604 (Miss. 1992). “The foundation for

the consent requirement applicable to medical practitioners is the tort law of assault and

battery--the legal doctrine protecting the right of each individual to be touched only when and

in the way authorized by that individual.” Id. “Every human being of adult years and sound

mind has a right to determine what shall be done with his own body, and a surgeon who

performs an operation without his patient’s consent commits an assault for which he is liable

for damages.” Id. The Court continued:

       Medical and surgical procedures that involve touching a patient’s person, even
       the simplest manipulation of a limb, must be properly authorized or the person
       performing the procedures will be subject to an action for battery. The
       obvious corollary is that, absent special circumstances, a competent individual
       has a right to refuse to authorize a procedure, whether the refusal is grounded
       on doubt that the contemplated procedure will be successful, concern about
       probable risks or consequences, lack of confidence in the physician
       recommending the procedure, religious belief, or mere whim.

       ...

       The informed consent rule has been referred to as the “bedrock of this state’s
       respect for the individual’s right to be free from unwanted bodily intrusions no
       matter how well intentioned.” In re Brown, 478 So. 2d 1033, 1040 (Miss.
       1985). In Brown, we noted that the fundamental right to be left alone is rooted
       in the right to privacy recognized by the common law of this state and Article
       3, § 32 of the Mississippi Constitution of 1890. In re Brown, 478 So. 2d
       1033, 1040 (Miss. 1985), citing Deaton v. Delta Democrat Publishing
       Company, 326 So. 2d 471, 473 (Miss. 1976).

Fox, 594 So. 2d at 604.

¶28.   After explaining the origin of the informed consent rule, the Fox Court stated the

general rule: “Concisely stated in one sentence, no physician may perform any procedure on



                                              14
a patient no matter how slight or well intentioned without that patient’s informed consent,

and violation of this rule constitutes a battery[.]” Id.

¶29.   The Fox Court then squarely framed the sole issue before it: “The only issue in this

case is consent, or not, to remove the IUD. In this regard, this case presented the classic jury

question. Who should the jury believe, Mrs. Fox or Dr. Smith? The stories which both parties

told at trial cannot be reconciled.” Id. at 605.

¶30.   Dr. Smith rested his entire argument on one paragraph in the consent form signed by

Fox, purportedly authorizing him to remove the IUD in the exercise of sound medical

judgment:

       I recognize that, during the course of the operation, unforeseen conditions may
       necessitate additional or different procedures than those set forth above. I,
       therefore, further authorize and request that the above named surgeon, his
       assistants or his designees perform such procedures as are, in his professional
       judgment, necessary and desirable, including but not limited to procedures
       involving pathology and radiology.

Fox, 594 So. 2d at 605.

¶31.   Dr. Smith urged the Court to follow cases from other jurisdictions for the proposition

that no battery was committed when a similar provision existed in a hospital consent form,

but the Court rejected Dr. Smith’s argument. Id. The Court reversed the judgment of

directed verdict for two reasons: (1) it refused to ignore Fox’s testimony that she specifically

forbade the doctor from removing her IUD; and (2) it was unclear if removal of the device

was a necessary and unforeseen procedure when the patient consented to a laparoscopy. Id.

at 605-06.

¶32.   Like Fox, the sole issue before the Court is whether Lacy consented, or not, to the

                                              15
removal of both ovaries. Fox is instructive in determining whether the consent form signed

by Lacy is a basis for summary judgment. In Fox, the Court rejected the physician’s

argument that a patient consented to a different procedure by signing a consent form

containing virtually the identical language as the form in the present case. Id. at 606.

Moreover, as in Fox, it is unclear that the removal of her ovaries was necessary or emergent

when she consented to a laparoscopy, cystectomy, and the possible removal of one fallopian

tube. Notably, the consent form was not dispositive even though it simply required that the

additional or different procedures be considered necessary and desirable based on the

subjective belief of the treating physician.

¶33.   The case sub judice is distinguishable from Fox in that Lacy does not assert she

expressly told Dr. Hines not to remove her ovaries prior to surgery. Fox testified that she

expressly forbade the physician from performing the procedure. Id. at 599. However, as the

Court of Appeals reasoned, the result of the surgery – removal of Lacy’s ovaries – was

“antithetical” to the purpose of the surgery – to determine the cause of Lacy’s infertility.

Dodd, 2016 WL 4615034, at *5 (¶ 24). The antithetical nature of Lacy’s surgery is

comparable to the express forbiddance present in Fox.

¶34.   The Court’s decision in the likewise factually similar Cole v. Wiggins, 487 So. 2d 203

(Miss. 1986), ultimately controls the case sub judice because it dealt with a similarly

developed record on appeal. James A. Cole suffered a severe injury to his left index finger

at work. Id. at 204. Cole was taken to the hospital, where he was treated by orthopedic

surgeon Dr. Christopher E. Wiggins. Id. Cole signed two authorization forms and was taken



                                               16
into surgery in which his entire left index finger was amputated. Id. Cole filed a complaint

against Dr. Wiggins, alleging that the actions taken by Dr. Wiggins in amputating his entire

finger constituted medical malpractice. Id. Cole asserted two theories of liability: “(1) he

was never informed that his entire finger might be amputated and (2) that he never gave his

informed consent thereto.” Id.

¶35.   Cole claimed “that Dr. Wiggins informed him that if the partially severed portion of

his finger could not be salvaged, the finger would be amputated at the middle joint.” Id.

“Conversely, Dr. Wiggins contend[ed] Mr. Cole was completely informed of the possible

results of the surgery[,]” and “it was impossible to salvage the severed portion of the finger

and, in order to avoid future pain and complication, it was necessary to amputate the entire

finger.” Id. The trial court entered a protective order preventing Cole from deposing or

cross examining Dr. Wiggins because Cole had not retained an expert witness to substantiate

his claims. Id. at 205. The trial court granted summary judgment in favor of Dr. Wiggins

prior to Cole retaining an expert witness. Id. at 204.

¶36.   On appeal, the Court took issue with the trial court’s entry of a protective order to

prevent Dr. Wiggins from being annoyed.           Id. at 205-06.     The Court stated that,

“[o]verlooked in that ruling was the fact that [Cole] was also alleging Dr. Wiggins never

received [Cole’s] informed consent to amputate his entire finger.” Id. at 205. The Court

acknowledged that “[a] physician is under a duty under some circumstances to warn his

patient of the known risks of proposed treatment or surgery, so that the patient will be in a

position to make an intelligent decision as to whether he will submit to such treatment or



                                             17
surgery.” Id. Moreover, “[m]atters which are within the common knowledge of laymen are

exceptions to the rule that expert medical testimony is required.” Id. The Court held

that“[n]o expert testimony was required to establish what communication transpired between

Mr. Cole and Dr. Wiggins.” Id. at 206.

¶37.   In addressing the trial court’s grant of summary judgment in favor of Dr. Wiggins, the

Court again emphasized that “expert medical testimony is needed to establish negligence in

a malpractice action[;] [h]owever, no expert testimony is needed to prove what

communications transpired between the doctor and the patient. Id. at 206. The Court

continued:

       The absence of an expert witness to testify that Dr. Wiggins was negligent
       clearly led to the summary judgment on the negligence question. But what
       about the question of informed consent? In his affidavit, Dr. Wiggins stated
       he fully informed the plaintiff of the procedures to be performed and that the
       plaintiff fully understood them. In contrast, the plaintiff stated in his affidavit
       that amputation of the entire left index finger was never mentioned to him and
       that he never consented thereto. Mississippi case law holds, “Issues of fact
       sufficient to require denial of a motion for summary judgment obviously are
       present where one party swears to one version of the matter in issue and
       another says just the opposite.” Those facts are exactly what is presented in
       the instant case.

Id. at 207 (internal citations omitted).

¶38.   The Court also noted: “Additionally, the plaintiff alleges he did not give an informed

consent, although the record shows his signature.” Id. Notwithstanding the signed consent

form, the Court held that the trial court erred by granting summary judgment because Dr.

Wiggins swore to one version of the matter and Cole swore to just the opposite. Id. As a

result, the Court reversed and remanded for further proceedings. Id.



                                               18
¶39.   As in Fox, the signed consent form was not dispositive in Cole. Moreover, Cole

brought separate theories of liability, i.e, that he was never informed his entire finger might

be amputated and that he never gave his informed consent thereto. Cole, 487 So. 2d at 204.

The Court also said that Cole had stated two issues in his complaint: (1) whether the doctor

received the informed consent of the patient for the entire procedure performed and (2)

whether the doctor was negligent in performing the procedures.

¶40.   Like Cole, Lacy brought separate theories of liability. According to Lacy’s complaint,

she alleged that she never gave consent for the removal of her ovaries and that Dr. Hines

removed both of her ovaries without her consent. Additionally, Lacy alleged that the

defendants were negligent in the following ways: failing to obtain her informed consent;

failing to wait until a frozen section analysis of biopsies was available; misdiagnosing her

condition; and removing her ovaries.

¶41.   Pursuant to the Court’s decisions in Fox and Cole, we reverse and remand for further

proceedings as to Lacy’s lack of informed consent claim because a genuine issue of material

fact prevents summary judgment on the issue. Moreover, as in Cole, any analysis relating

to the defendants’ alleged negligence is premature because the trial court entered an order

limiting the issue before it to consent and did not accept expert testimony.

¶42. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE
JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT IS REVERSED AND
REMANDED.

    RANDOLPH, P.J., KITCHENS, KING, MAXWELL, BEAM AND
CHAMBERLIN, JJ., CONCUR. DICKINSON, P.J., CONCURS IN RESULT ONLY
WITH SEPARATE WRITTEN OPINION. WALLER, C.J., NOT PARTICIPATING.



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       DICKINSON, PRESIDING JUSTICE, CONCURRING IN RESULT ONLY:

¶43.   The circuit judge granted summary judgment for one reason: he found that Lacy gave

informed consent for the removal of her ovaries. The majority reverses, finding that a

material issue of fact exists as to whether Lacy gave that consent. I disagree.

¶44.   The facts which gave rise to a triable issue of fact on consent in Fox v. Smith—the

authority upon which the majority primarily relies—are not present here. That case

concerned a patient who claimed her doctor removed her IUD without consent.4 There, the

patient testified she expressly told her doctor not to remove the IUD.5 And, while that patient

signed a form consenting to other necessary medical procedures similar to the one at issue

here, she also testified that she questioned a nurse about that provision and was told it only

consented to life-saving measures employed in response to an emergency during the surgery.6

¶45.   Lacy has put forth no similar evidence. She does not dispute that she signed the

consent form authorizing “such additional surgeries and procedures (whether or not presently

unforseen conditions) considered necessary or emergent in the judgment of my doctor or

those of the hospital’s medical staff who serve me.” She does not contend anyone misled her

as to the meaning of this provision. And she does not contend she forbade the removal of

her ovaries.

¶46.   Rather, Lacy argues only that she did not give informed consent because no one told



       4
           Fox v. Smith, 594 So. 2d 596 (Miss. 1992).
       5
           Id. at 605.
       6
           Id. at 600.

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her that her ovaries might be removed. But the consent’s plain, unambiguous terms included

procedures based on “unforseen conditions.” So I do not agree a material issue of fact exists

as to whether Lacy consented to procedures—like the removal of her ovaries—deemed

necessary by her physicians.

¶47.   That said, I agree we must reverse the grant of summary judgment. Lacy’s claim is

not simply lack of consent. Instead, she alleges medical malpractice in her physicians’

judgment that it was necessary to remove her ovaries. While Lacy consented to the

performance of procedures deemed necessary by her physicians, she did not waive her claim

the physicians negligently concluded the procedure was necessary.




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