        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2015-CA-00334-COA

LACY DODD AND CHARLES DODD                                               APPELLANTS

v.

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

DATE OF JUDGMENT:                         02/06/2015
TRIAL JUDGE:                              HON. WILLIAM E. CHAPMAN III
COURT FROM WHICH APPEALED:                RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                 J. KEITH PEARSON
                                          SARAH LYNN DICKEY
ATTORNEYS FOR APPELLEES:                  WHITMAN B. JOHNSON III
                                          JOHN BURLEY HOWELL III
                                          MICHAEL F. MYERS
                                          BENJAMIN COLLIER LEWIS
                                          WALTER T. JOHNSON
NATURE OF THE CASE:                       CIVIL - MEDICAL MALPRACTICE
TRIAL COURT DISPOSITION:                  SUMMARY JUDGMENT FOR
                                          DEFENDANTS
DISPOSITION:                              REVERSED AND REMANDED - 09/06/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       GREENLEE, J., FOR THE COURT:

¶1.    This is an appeal from the Rankin County Circuit Court’s grant of summary judgment

in favor of Dr. Randall Hines (Hines), Reproductive Medicine PLLC (RM), and Dr. Paul

Seago (Seago), on the basis that Hines, RM, and Seago had Lacy Dodd’s (Lacy) consent to

remove both of her ovaries. The circuit court’s grant of summary judgment was based on a

document signed by Lacy authorizing the removal of ovarian cyst(s), possible removal of one
fallopian tube, and other procedures considered “necessary or emergent” to the medical staff.

We reverse and remand for further proceedings consistent with this opinion.

                                   PROCEDURAL NOTE

¶2.    On May 17, 2013, Lacy and Charles Dodd (Charles), Lacy’s husband, filed a

complaint in Rankin County Circuit Court. Shortly after, the defendants filed an answer and

quickly moved for summary judgment before discovery was conducted. Numerous exhibits

were submitted in support in the form of affidavits, medical records, lab results, and more.

Our discussion is limited to the filings before the circuit court filed in support or response

to the motion for summary judgment.

                                FACTUAL BACKGROUND

¶3.    In 2011 Lacy was concerned over fertility issues. She consulted Hines, an obstetrician

and gynecologist specializing in infertility.1 On March 25, 2011, in order to increase her

chances of conception, Lacy authorized Hines to remove an ovarian cyst or cysts (ovarian

cystectomy) and possibly remove one of her fallopian tubes (salpingectomy). Prior to the

procedure, Lacy signed a document that provided in part:

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

¶4.    Hines’s affidavit states that, after commencing surgery, he observed that both of



       1
           At the time of Lacy’s initial visit, she was twenty-seven years old.

                                                2
Lacy’s ovaries lacked any normal tissue and appeared clinically cancerous. Hines stated that

he consulted intraoperatively with Seago, an obstetrician and gynecologist specializing in

gynecological cancers. Both doctors’ affidavits stated that they agreed that “the ovaries were

clearly not going to be sufficient to allow any reasonable possibility of [Lacy] having her

own genetic children[.]” Hines and Seago agreed that it was “medically necessary” and in

the “best interests” of Lacy’s “long-term health” to remove both ovaries by conducting a

bilateral salpingo-oophorectomy.2 3 4

¶5.    A biopsy of Lacy’s ovaries conducted shortly after their removal reported that Lacy’s

ovaries were found not to be cancerous. They tested positive for non-cancerous, serous

cystadenofibroma.5 Hines asserted that he had the report forwarded to a doctor at the Mayo

Clinic the same day and that doctor later concurred with the findings. Lacy asserts that even

if her ovaries were cancerous, she would have wanted to explore any and all methods to

preserve her ability to conceive her own genetic children.



       2
         Hines and Seago’s affidavits stated that they ruled out the possibility of a biopsy to
confirm the presence of cancer because they reasoned that a biopsy would not have
definitively excluded a diagnosis of cancer and, assuming the ovaries were cancerous, a
biopsy could have potentially spread the cancer throughout the pelvis and abdomen.
       3
       A bilateral salpingo-oophorectomy is a procedure in which both ovaries are
removed.
       4
        The justification for the removal of Lacy’s ovaries was given in the affidavits of
Hines and Seago. Neither Hines’s nor Seago’s affidavit was submitted as or considered as
an expert opinion by the circuit court.
       5
           Serous cystadenofibroma is a condition in which a benign tumor appears cancerous.

                                              3
¶6.    Following the removal of her ovaries, Lacy began hormone replacement therapy

(HRT), but was forced to stop treatment due to various blood clots as well as deep vein

thrombosis.6 No longer able to receive HRT, Lacy went into early menopause at

approximately thirty years of age. Lacy is unable to conceive her own genetic children.

                              PROCEDURAL HISTORY

¶7.    On May 17, 2013, Charles and Lacy filed a pro se complaint against Hines, RM, and

Seago in Rankin County Circuit Court asserting that the defendants were negligent in: (1)

failing to obtain informed consent to remove Lacy’s ovaries; (2) removing Lacy’s ovaries;

(3) failing to conduct a biopsy of Lacy’s ovaries prior to removal; (4) misdiagnosing Lacy’s

condition; and (5) “other.” Hines and RM—later joined by Seago—filed a motion for

summary judgment. Charles and Lacy subsequently obtained counsel.

¶8.    On May 22, 2014, the parties entered an agreed order, signed by the circuit court,

which stated all outstanding motions “save for the causation part” of the motion for summary

judgment would be heard before the court. This included Lacy and Charles’s Mississippi

Rule of Civil Procedure 56(f) motion, which requested more time to conduct discovery. On

October 1, 2014, the circuit court ordered the motion for summary judgment be held in

abeyance “except regarding the consent issue.” The circuit court also instructed Hines, RM,

and Seago “to file either a supplement to the motion [for summary judgment] or a separate



       6
        Deep vein thrombosis is a condition where a blood clot forms in one or more of the
deep veins in the body obstructing the flow of blood through the circulatory system.

                                             4
motion for summary judgment specifically addressing the consent issue[.]”

¶9.    Pursuant to the circuit court’s order, Hines and RM—joined by Seago—filed a

supplemental motion, addressing the consent issue—including causation. The parties entered

an agreed order granting Charles and Lacy an extension of time to respond. Charles and

Lacy, “out of an abundance of caution,” responded to all arguments raised in the

supplemental motion—including causation.

¶10.   On February 6, 2015, the circuit court granted summary judgment in favor of Hines,

RM, and Seago. The circuit court noted that its ruling was not based on Charles and Lacy’s

failure to come forward with expert testimony. Rather, the circuit court based its decision on

the fact that the document Lacy signed “specifically included a provision which allowed the

doctors to perform any procedure in their judgment necessary that arose during surgery.” The

circuit court concluded that its judgment on the consent issue was dispositive of all claims

raised in Charles and Lacy’s complaint. Thus, no other issue was addressed by the circuit

court. On February 23, 2015, Charles and Lacy appealed the circuit court’s grant of summary

judgment to this Court.

                                       DISCUSSION

¶11.   The grant of a motion for summary judgment is reviewed de novo. Karpinsky v. Am.

Nat’l Ins., 109 So. 3d 84, 88 (¶9) (Miss. 2013). The issue before us is whether Lacy provided

appropriate consent for the removal of her ovaries, eliminating her ability to conceive.

       I.     Consent


                                              5
¶12.   Two different analyses of consent exist: a consent analysis based on assault and

battery, and an informed-consent analysis based on medical negligence.

              A.     Battery-Based Consent Analysis

¶13.   Mississippi recognizes the requirement that consent be given for medical procedures.

As early as 1914, courts have addressed consent based on the law of assault and battery as

described by Justice Cardozo in Schloendorff v. Society of New York Hospital, 105 N.E. 92,

93 (N.Y. 1914) (abrogated on other grounds). As cited in Fox v. Smith, 594 So. 2d 596, 604

(Miss. 1992): “Every human being of adult years and sound mind has a right to determine

what shall be done with his [or her] own body, and a surgeon who performs an operation

without his [or her] patient’s consent commits an assault [and battery] for which he [or she]

is liable for damages.” Id. (quoting Schloendorff 105 N.E. at 93) (further citation omitted).

              B.     Medical-Negligence-Based Consent Analysis

¶14.   Mississippi also recognizes an informed-consent analysis based around a theory of

medical negligence, which is analyzed under the critical question of “whether or not a

reasonably prudent patient, fully advised of the material known risks, would have consented

to the suggested treatment.” Jamison v. Kilgore, 903 So. 2d 45, 48-49 (¶10) (Miss. 2005)

(quoting Reikes v. Martin, 471 So. 2d 385, 392 (Miss. 1985)). “[W]here a plaintiff charges

that a doctor performed a procedure without first obtaining informed consent, the plaintiff’s

first task is to establish what are known risks of the procedure. This requires an expert




                                             6
opinion.” Id. at 50 (¶17).7 It is not until after the known risks are enumerated that they can

be evaluated as to which are material. Id. at (¶16).

              C.      When to Apply Which Analysis

¶15.   Mississippi has not directly addressed when it is appropriate to apply the battery-based

analysis or the medical-negligence-based analysis. However, other jurisdictions have. The

Rhode Island Superior Court in Spaight v. Shah-Hosseini, No. C.A. PC 04-6802 (R.I. Super.

Ct. Dec. 30, 2009), addressed the application of these two analyses.

¶16.   In Spaight, the patient consented to a laparoscopic pelviscopy8 to remove a suspected

endometriosis,9 but the procedure instead resulted in the unanticipated removal of her ovary

and fallopian tube, as well as other complications. The Spaight court noted that a “majority

of jurisdictions have characterized a failure to disclose material risks and alternatives to

treatment as a negligence action, while permitting the application of battery law to remain

in the more limited category of cases where the procedure was unauthorized.” Id. (emphasis

added). They noted that there are some instances where applying the medical-negligence-



       7
       “Such expert testimony may be developed from expert witnesses, admissions by the
defendant, or other authoritative sources as allowed by the Mississippi Rules of Evidence.”
Jamison, 903 So. 2d at 50 n.2.
       8
         A laparoscopic pelviscopy is a procedure where carbon dioxide is blown into the
body cavity to allow for direct visualization of the ovaries, fallopian tubes, and uterus. It is
typically done to diagnose and treat pelvic organ disorders, as well as to perform surgical
procedures on the same organs.
       9
         Endometriosis is a disorder in which tissue that normally lines the inside of the
uterus grows on the outside of the uterus.

                                               7
based analysis as opposed to battery-based analysis would be “illogical.” Id. One such

instance is when a procedure is performed that was not considered beforehand, as 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.

¶17.   The Louisiana Supreme Court has also found the application of the battery-based

analysis to be appropriate when a procedure completely lacked consent. Pizzalotto v. Wilson,

437 So. 2d 859, 862-64 (La. 1983).10 In Pizzalotto, the patient consented to a laparoscopy.11

Id at 862. Upon observing the patient’s reproductive organs, the doctor believed they were

too damaged and performed a hysterectomy,12 claiming “failure to remove the reproductive

organs would result in pain and infection.” Id. The court applied the battery-based analysis

because the removal of the patient’s ovary and other reproductive organs could not logically

be considered a “risk” of the laparoscopic procedure that was disclosed. Id at 863.

       II.      Lack of Expert Testimony

¶18.   As stated above, a medical-negligence-based complaint requires expert testimony to

establish the known or material risks associated with a procedure. Jamison, 903 So. 2d at 49

(¶¶15-17). Here, no expert testimony was submitted. Hines’s and Seago’s affidavits were



       10
         Louisiana later abrogated this decision by statute as noted in Thibodeaux v.
Jurgelsky, 898 So. 2d 299, 303-04 (La. 2005).
       11
       A laparoscopy is a procedure where a fiber-optic instrument is inserted through the
abdominal wall to view organs or to allow for a surgical procedure.
       12
            Removal of all or part of the uterus.

                                                8
taken by the court only as lay descriptions of what happened, not expert testimony. Even if

their affidavits were taken as expert testimony, they do not state whether removal of Lacy’s

ovaries was a known or material risk of the procedure. Further, there is no indication from

the record that Lacy was told that loss of her ovaries was a risk of the procedure, nor do the

parties dispute that she was not told that loss of her ovaries was a risk. Thus, without expert

testimony, the battery-based analysis is the only analysis under which this complaint could

have been examined, unless the written authorization signed by Lacy would control.

¶19.   Judge Carlton’s dissent highlights the status of the law using what we describe as the

medical-negligence-based analysis of consent.13 Our opinion does not arrive at the

application of that analysis. Judge Carlton’s position that the trial court should be affirmed

due to the lack of expert testimony is not properly before the Court. The circuit court

explicitly stated in its order granting summary judgment that its decision was not based on

the absence of expert affidavits from Lacy, nor did it consider the affidavits of Hines or

Seago as expert testimony. By its October 1, 2014 order, the circuit court narrowed the issue

for its consideration, which is before us, to consent. It held in abeyance all issues raised in

Hines’s, RM’s, and Seago’s motion for summary judgment, Lacy’s motion to file an

amended answer, and Lacy’s motion for additional time to respond under Rule 56(f), which



       13
         The cases cited by Judge Carlton rely on the medical-negligence-based analysis of
consent, not the battery-based analysis. See McMichael v. Howell, 919 So. 2d 18 (Miss.
2005); Jamison v. Kilgore, 903 So. 2d 45 (Miss. 2005); Whittington v. Mason, 905 So. 2d
1261 (Miss. 2005); Reikes v. Martin, 471 So. 2d 385 (Miss. 1985).

                                              9
included Lacy’s request for more time to conduct discovery. The circuit court’s instructions

and ruling were based solely on the consent form signed by Lacy provided by Hines and RM.

¶20.   The circuit court was appropriate in so limiting its review, as discovery had not yet

even begun. Lacy had not been able, through discovery, to ascertain if Hines, RM, or Seago

considered removal of Lacy’s ovary(ies) a known or material risk of the procedure.14 If they

did, there is no indication in the record before the Court that Lacy was advised of such. It is

not controverted that Lacy did not give express consent or give permission for her ovaries

to be removed. The analysis based on her lack of consent under the longstanding battery

theory of consent controls at this early stage of the proceeding below where no expert

testimony was going to be and none was considered by the circuit judge. Judge Carlton’s use

of the medical-negligence consent analysis is premature given the early stage of the litigation

at which the trial court made the decision before us.

¶21.   Judge Wilson’s dissent relies on the doctors’ affidavit statements to determine that the

signed consent form was sufficient. The form limits consent to medical procedures that

would be necessary or emergent. Determination of whether the procedure would be necessary

or emergent should require expert testimony. As the circuit court considered nothing before



       14
          Judge Carlton’s dissent relies on cases in which discovery had proceeded or the
case had gone to trial. In McMichael, the plaintiff provided answers to interrogatories and
the circuit court allowed the plaintiff additional time to depose the defendant and provide
expert-witness disclosures. McMichael, 919 So. 2d at 20 (¶3). In Whittington, a trial had
been conducted. Whittington, 905 So. 2d at 1263 (¶12). In Reikes, a trial had also been
conducted. Reikes, 471 So. 2d at 385.

                                              10
it as expert testimony, on appeal Judge Wilson’s analysis is premature.

       III.   Waiver Form

¶22.   Though waivers executed by a patient “can be helpful,” they are not necessarily

dispositive of a patient’s consent. Barner v. Gorman, 605 So. 2d 805, 808 (Miss. 1992).15 “A

simple waiver form with boilerplate language applicable to any surgical procedure may not

be adequate.” Id. “[D]isclosure to a patient should be specific to that patient’s treatment.” Id.

Barner is factually instructive as well on the case before us. In Barner, the doctor suggested

that consent to the procedure involved in that case was evidenced by a consent form signed

by the patient authorizing “other medical services.” The Barner court did agree that the form

was evidence of the patient’s consent, but noted that it was not conclusive evidence of the

patient’s consent. Similar language was at issue in Spaight and Pizzalotto. In those cases, as

in Barner, the language was rejected as not indicative of consent for the procedure at issue

before the respective courts.

¶23.   Here, the section of the form at issue authorized “necessary or emergent” medical

procedures. Though this does go toward evidence of Lacy’s consent to the procedures done,

we cannot say that it is conclusive of consent to the removal of her ovaries or to what the

known or material risks were of her surgery. Nowhere in the record is there any indication

that Lacy was told that the removal of her ovaries was a risk. Neither Lacy nor the defendants


       15
         Judge Wilson’s dissent criticizes our use of Barner, a case dealing with informed
consent. However, Barner’s logic concerning written waivers would apply to both battery-
based consent analyses and informed-consent analyses.

                                               11
assert that she was informed that removal of her ovaries was a possible risk of the procedure.

Thus, we find that the document signed by Lacy is not presently dispositive of whether or not

she gave consent to the removal of her ovaries. We do not decide whether the document

should be construed against the writer based on its alleged imperfection or whether Lacy

could have been deemed to have made an informed decision under the medical-negligence-

based analysis after expert testimony and other evidence.

       IV.    Application of Law

¶24.   In the case at hand, Lacy sought Hines’s services for the purpose of increasing her

ability to bear her own children, and agreed to the removal of ovarian cysts and one fallopian

tube in pursuit of that goal. Instead of removing any cysts or the fallopian tube, Hines

removed both ovaries, which was a “substantially different” procedure than that to which she

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

battery analysis is appropriate when the performed procedure was “substantially different”

from that to which consent was given.). The removal of her ovaries was a procedure that

foreclosed her ability to produce her own eggs for conception, whereas the procedures

anticipated and authorized were authorized in order to increase her ability to bear her own

children. Without question, the procedure performed was “substantially different” than that

authorized. Further, and similar to the situation in Pizzalotto, the destroying of Lacy’s ability

to naturally conceive by the removal of her ovaries was not logically a perceived risk of the

procedure meant to increase her fertility, as it was antithetical to the purpose of the surgery.


                                               12
Clearly, Lacy did not expressly authorize the removal of her ovaries.

¶25.   In dissent, Judge Wilson characterizes our opinion as a declaration of public policy.

However, our decision is merely based upon application of Mississippi law in existence.

Marchbanks v. Borum, 806 So. 2d 278, 288 (¶28) (Miss. Ct. App. 2001) (reaffirming that a

medical procedure involving a touching requires consent as stated in Fox, 594 So. 2d at 604,

and established in Phillips ex rel. Phillips v. Hull, 516 So. 2d 488 (Miss. 1987) (overruled

on other grounds)).

¶26.   The case before the Court is a review of the summary judgment granted below under

Mississippi Rule Civil Procedure 56(c). We are not reviewing or making a declaratory

judgment. M.R.C.P. 57. Based upon the limited scope of the judgment and limited facts

before us, we find that there are genuine issues as to material facts and that the moving

parties are not entitled to a judgment as a matter of law.

¶27.   Thus, we 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.

                                      CONCLUSION

¶28.   We reverse and remand the Rankin County Circuit Court’s grant of summary


                                             13
judgment for further proceedings consistent with this opinion.

¶29. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS
REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLEES.

     IRVING, P.J., BARNES, ISHEE AND JAMES, JJ., CONCUR. CARLTON, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION. WILSON, J., DISSENTS
WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J., AND
CARLTON, J. LEE, C.J., AND FAIR, J., NOT PARTICIPATING.

       CARLTON, J., DISSENTING:

¶30.   I respectfully dissent. I would affirm the circuit court’s grant of summary judgment

to Hines, RM, and Seago because Lacy failed to raise a genuine issue of disputed material

fact as required to survive summary judgment. The record reflects that Lacy signed a consent

document agreeing that Hines, as well as other physicians he might consult with, could

perform a laparoscopic ovarian cystectomy to remove cysts on her ovaries and to possibly

remove a fallopian tube. Lacy also consented to such additional surgeries and procedures

(whether or not arising from presently unforeseen conditions) that the medical staff

considered necessary or emergent.

¶31.   Lacy presented no expert testimony to dispute the summary-judgment evidence

submitted by Hines, RM, and Seago that Hines and Seago consulted during Lacy’s surgery

and determined, in their opinion, that removal of Lacy’s ovaries was necessary and/or

emergent. The undisputed facts show that, once the laparoscopy began, Hines discovered

Lacy’s right ovary was enlarged and covered in cysts and that no normal ovary tissue was


                                            14
present. The left ovary was also enlarged, surrounded by similar abnormal tissue, and

completely lacking normal tissue. Concerned that both ovaries were cancerous, Hines

consulted intraoperatively with Seago, an obstetrician/gynecologist specializing in

gynecological cancers. Seago confirmed Hines’s findings that both ovaries were enlarged,

diseased, and lacking any normal tissue. The undisputed facts also show that Seago

concurred with Hines’s opinion that both ovaries were highly suspicious for cancer.

¶32.   In light of Lacy’s medical history of severe pelvic pain and recurrent ovarian cysts;

her family history of ovarian, uterine, cervical, and breast cancer; and the absence of any

normal ovarian tissue to allow her to bear a child from her own eggs, Hines and Seago

consulted and agreed during surgery that it was medically necessary for Lacy’s health for her

ovaries to be removed. The record reflects that a biopsy was contraindicated for fear of

spreading cancer elsewhere in her pelvis and abdomen and that even a negative biopsy would

not have ruled out cancer since benign lesions can develop into cancer.

¶33.   In response to the summary-judgment motion, Lacy presented no evidence or expert

testimony. In failing to present expert testimony to rebut the summary-judgment evidence

submitted by Hines, RM, and Seago, Lacy failed to rebut their evidence and arguments that

no dispute of material fact existed as to their medical opinion that the removal of Lacy’s

ovaries was a necessary and emergent procedure and that Lacy’s consent to such procedures

applied to the removal of her ovaries. As our caselaw establishes, a party opposing summary

judgment must be diligent and may not rest on mere allegations or denials in the pleadings.


                                             15
McMichael v. Howell, 919 So. 2d 18, 21 (¶5) (Miss. 2005). The Mississippi Supreme Court

explained in McMichael that, where a plaintiff claims a physician has breached the duty to

obtain the patient’s informed consent, the familiar elements of duty, breach, causation, and

damage apply. Id. at 22 (¶8). The supreme court stated that the individual claiming a breach

of the duty to inform and procure patient consent must make more than mere allegations to

show that a breach has occurred. Id. The McMichael court further stated that, “where a

plaintiff charges that a doctor performed a procedure without first obtaining informed

consent, the plaintiff’s first task is to establish what are known risks of the procedure, and

this requires an expert opinion.” Id. at (¶9) (citing Jamison v. Kilgore, 903 So. 2d 45, 50

(¶17) (Miss. 2005)).

¶34.   The record here reflects that the circuit court held all matters in abeyance except for

the consent issue on summary judgment. The circuit court did not relieve Lacy of her burden

to rebut or to respond to the summary-judgment issue of informed consent. However, the

only evidence that Lacy submitted to counter the evidence submitted by Hines, RM, and

Seago was her own affidavit. The circuit court properly held that Lacy’s response was

insufficient to support her claim that a genuine issue of disputed material fact existed.

¶35.   As the record reflects, Lacy presented no expert testimony by physicians in the

relevant field of medicine as to what additional surgeries or procedures were necessary or

urgent due to the condition of her ovaries and relative to the laparoscopic ovarian cystectomy

to remove the cysts on her ovaries and to possibly remove a fallopian tube. See Whittington


                                             16
v. Mason, 905 So. 2d 1261, 1266 (¶25) (Miss. 2005) (“[E]xpert testimony is required to assist

the finder of fact in determining whether a particular risk is material, requiring disclosure to

the patient prior to a medical procedure[.]”). Lacy also provided no expert testimony as to

what risks were material or required disclosure to her as a patient prior to this medical

procedure. She failed to present expert testimony to support her claim of a lack of informed

consent, and she failed to raise a dispute of material fact to support her claims. See id. at

(¶21) (recognizing that an objective standard applies to determine what information a

physician must disclose).16

¶36.   Based on the foregoing, I would affirm the circuit court’s grant of summary judgment

to Hines, Seago, and RM. I therefore dissent from the majority’s opinion.

       WILSON, J., DISSENTING:

¶37.   Under Mississippi law, a patient may assert two types of “consent” claims against a

physician. First, “a surgeon who performs an operation without his patient’s consent

commits an assault [and battery] for which he is liable for damages.” Fox v. Smith, 594 So.

2d 596, 604 (Miss. 1992). Second, even if the physician obtains the patient’s consent in fact,

the physician may still be liable if that consent was not “informed.” Jamison v. Kilgore, 903


       16
          See Reikes v. Martin, 471 So. 2d 385, 392-93 (Miss. 1985) (holding that, in a
medical-malpractice action based on the doctrine of informed consent, an objective standard
applies, and the question is whether a reasonably prudent patient, fully advised of material
known risks, would have consented to the suggested treatment). See also Latham v. Hayes,
495 So. 2d 453, 458 (Miss. 1986) (applying the objective standard from Reikes to informed
consent and acknowledging that the plaintiff bears the burden of proof to establish the
professional standards of the medical profession for informed consent to the particular risk).

                                              17
So. 2d 45, 49-50 (¶15) (Miss. 2005). For consent to be informed, the patient must be advised

of the material and “known risks of the procedure.” Id. at 50 (¶17) (emphasis added).

¶38.   The Dodds’ claim is a no-consent claim, not an informed-consent claim. Logically,

it cannot be an informed-consent claim because the injury about which they complain—the

removal of Lacy’s ovaries—was not a risk of the procedures to which she admits she

consented. The removal of her ovaries was not an “undesirable symptom or condition”

caused by the procedures to which she consented, id., nor was it a response to complications

of those procedures. It was a different procedure (a bilateral salpingo-oophorectomy) that

Dr. Hines deemed necessary and performed once he found that Lacy’s ovaries appeared to

be cancerous. The only issue in this case is whether Lacy consented to that procedure in fact.

¶39.   Whether Lacy gave consent turns on whether the procedure was covered by the

following provision of the consent agreement that she signed:

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

¶40.   The undisputed material facts establish that Lacy’s bilateral salpingo-oophorectomy

was covered by her consent. Dr. Dodd was treating Lacy for infertility, a history of ovarian

cysts, and pelvic pain. After other treatments were unsuccessful, Lacy consented to a

laparoscopy with an ovarian cystectomy and a possible salpingectomy (removal of a fallopian

tube). In the course her surgery, Dr. Hines found that both of Lacy’s ovaries had an

“extremely abnormal appearance” and “appeared to be cancerous.” Dr. Hines knew that

                                             18
Lacy “had a family history of ovarian cancer, which is a disease with a high mortality rate.”

Dr. Hines therefore asked for an intraoperative consult with Dr. Seago, a gynecologic

oncologist. Dr. Seago examined Lacy and concurred that both ovaries appeared cancerous.

Dr. Seago and Dr. Hines agreed that “removal of the ovaries was necessary for [Lacy’s] long-

term health” and “in [her] best interest.” The tumors that they observed had “taken over both

ovaries to such an extent that normal ovarian tissue was essentially unrecognizable.” For this

reason, they concluded that “the likelihood that [Lacy] would ever have a child from one of

her own eggs was practically nonexistent.”17 Therefore, based on his professional judgment

as a gynecologic oncologist, Dr. Seago recommended the removal of Lacy’s ovaries. And,

exercising his professional judgment, Dr. Hines concurred and performed the procedure.

¶41.   Although Lacy now maintains that her doctors could have taken a biopsy and awaited

the results rather than removing her ovaries, neither doctor considered that to be appropriate

medical care under the circumstances. Both explained that they believed that a biopsy would

have risked spreading the cancer that they believed existed and reduced Lacy’s chances of

survival. Furthermore, a biopsy could not have ruled out cancer definitively, and in the

doctors’ judgment, even non-cancerous lesions such as those covering Lacy’s ovaries would

have been a continuing health risk because they “can degenerate into cancer if not removed.”

Thus, a biopsy would have been contrary to Dr. Hines’s and Dr. Seago’s medical judgment.

¶42.   Based on these undisputed facts, there is no question that Dr. Hines performed a


       17
            Lacy subsequently carried and gave birth to two children from donor eggs.

                                             19
procedure that he and Dr. Seago “considered necessary . . . in [their] judgment.” There is no

evidence or suggestion that their stated reasons for performing the procedure were pretextual

and that they actually removed Lacy’s ovaries for some other reason. Nor is there any basis

for speculating that a doctor whose practice is dedicated to treating infertility would

undertake such a procedure against his own best judgment. The majority asserts that the

“[d]etermination of whether the procedure would be necessary or emergent should require

expert testimony,” and the majority apparently believes that it was the doctors’ burden to

come forward with such testimony. Ante at (¶21). But this simply rewrites the actual terms

of Lacy’s consent. Lacy expressly consented to “such additional procedures . . . considered

necessary . . . in the judgment of [Dr. Hines] or [Dr. Seago]” (emphasis added). The

affidavits of Dr. Hines and Dr. Seago establish that they considered the procedure necessary

in their medical judgment. They do not need an expert to testify about what they considered

necessary in their own judgment. Therefore, based on the terms of the consent agreement

that Lacy signed, there is no genuine issue of material fact as to whether she consented to the

procedure. She did, and the defendants are entitled to judgment as a matter of law.

¶43.   Rather than simply applying the terms of Lacy’s consent agreement to the undisputed

facts, the majority cites Barner v. Gorman, 605 So. 2d 805, 808 (Miss. 1992), for the

proposition that a consent form is only evidence of a patient’s consent and is not conclusive.

However, Barner was an informed-consent case, and the Court held only that the form’s

general statement that the risks of a procedure had been explained to the patient was not


                                              20
conclusive given the patient’s testimony that a specific risk was never explained. See id. at

806-08. The Court did not hold that the form was anything less than conclusive as to

whether the patient had consented in fact—only that it was not dispositive as to whether her

consent was informed. As discussed above, this case involves a no-consent claim, not an

informed-consent claim, so Barner is inapposite. Lacy’s signed consent demonstrates that

she consented in fact to additional procedures deemed necessary in her doctor’s medical

judgment, and the circuit court properly granted summary judgment.

¶44.   By refusing to enforce Lacy’s consent agreement, the majority effectively holds that

such an agreement—i.e., one in which a patient gives preoperative consent to additional

procedures deemed necessary in his or her doctor’s judgment—is void as against public

policy. This becomes clear when the majority declares that Lacy’s consent was ineffective

because Dr. Hines performed a procedure that, in the majority’s estimation, was

“substantially different” than the procedures originally contemplated. Ante at (¶24) (quoting

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

case from which the majority borrows this standard articulated a common law rule of

construction—a default rule—that when a “patient consented to the performance of one kind

of operation,” her consent will be understood, “in the absence of proof to the contrary,” to

extend to such other procedures as her physician, “in the exercise of . . . sound professional

judgment, determines are reasonably necessary to treat [her] condition.” Samoilov, 536 A.2d

at 280-81. Apparently, the majority has transformed this default rule of New Jersey common


                                             21
law into a mandatory limitation on every medical consent form signed in the State of

Mississippi. In effect, the majority declares that any consent that is not so limited is void as

against public policy.

¶45.   The actual terms of Lacy’s consent contain no such limitation. Lacy authorized her

doctor to perform such additional procedures as he concluded, in the course of surgery, were

necessary in his medical judgment—not just procedures deemed “substantially” similar in

hindsight by lawyers. The procedure at issue was covered by Lacy’s consent, as Dr. Hines

not only relied on his own judgment but also took the added precaution of an intraoperative

consult with a subject matter expert. Clearly, the majority disapproves of the breadth of

Lacy’s preoperative consent, but that is not a basis for invalidating it. See Estate of Reaves

v. Owen, 744 So. 2d 799, 802 (¶9) (Miss. Ct. App. 1999) (“The function of the courts is to

enforce contracts rather than enable parties to escape their obligation upon the pretext of

public policy.” (quoting Smith v. Simon, 224 So. 2d 565, 566 (Miss. 1969))). Whether a

patient should be able to grant such consent to his or her physician prior to an operation is

an issue on which reasonable minds may differ. But in the absence of a clear public policy

prohibiting such an agreement, we should enforce the consent to surgery, which Lacy signed

voluntarily, according to its terms. See Barbour v. State ex rel. Hood, 974 So. 2d 232, 244

n.19 (Miss. 2008) (“Our constitutional duty . . . is to apply the law, and leave matters of

public policy to the other branches.”).

¶46.   In addition to my basic disagreement with the majority’s view of this case, I fear that


                                              22
the majority opinion leaves the status of the Dodds’ claim unclear. At one point, the majority

seems to conclude that the Dodds’ claim is a no-consent claim because it would be “illogical”

to treat it as an informed-consent claim (see ante at (¶¶15-17)), which is my own conclusion.

Yet in the next sections, the majority seems to imply that the Dodds may pursue an informed-

consent claim on remand if they obtain expert testimony to support it. See ante at (¶¶18-20,

23). A clear holding on this issue is necessary to guide the circuit court and the parties on

remand. In addition, the majority seems to indicate at one point that Lacy’s consent is

“evidence of [her] consent to the procedures done,” just not “conclusive evidence.” Ante at

(¶22). This suggests that whether Lacy consented to the procedure remains a genuine issue

of fact to be litigated on remand. Yet in the next section, the majority states that “[c]learly,

Lacy did not expressly authorize the removal of her ovaries.” Ante at (¶24) (emphasis

added). This implies that the majority has concluded that Lacy is entitled to judgment as a

matter of law on her no-consent (i.e., battery) claim. The Court’s holding on this issue

should also be clarified for the circuit court and the parties.

¶47.   For the foregoing reasons, I would affirm the circuit court’s order granting summary

judgment in favor of all defendants. Accordingly, I respectfully dissent.18

       GRIFFIS, P.J., AND CARLTON, J., JOIN THIS OPINION.


       18
          I agree with parts of Judge Carlton’s dissent; however, like the circuit court, I
would not rely on the Dodds’ lack of expert testimony as a basis for granting summary
judgment. While issues of causation or lack of expert testimony may eventually prove
dispositive on remand, I cannot help but conclude that the circuit court’s orders in this case
were intended to—or at least were reasonably interpreted to—hold those issues in abeyance.

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