                        IN THE SUPREME COURT OF MISSISSIPPI

                                    NO. 2003-CT-00700-SCT

BENNIE SCOTT WHITTINGTON AND TINA S.
WHITTINGTON

v.

WOODIE L. MASON, M.D. AND HINDS UROLOGY
CLINIC, P.A.

                                  ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                              12/03/2002
TRIAL JUDGE:                                   HON. W. SWAN YERGER
COURT FROM WHICH APPEALED:                     HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                       DOUGLAS G. MERCIER
                                               WILLIE T. ABSTON
ATTORNEYS FOR APPELLEES:                       GEORGE QUINN EVANS
                                               LYNDA CLOWER CARTER
NATURE OF THE CASE:                            CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                                   AFFIRMED - 06/16/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       DICKINSON, JUSTICE, FOR THE COURT:

¶1.    The narrow question presented in this medical negligence case is whether expert

testimony is required to establish the material risks which must be disclosed to a patient in

order to obtain informed consent to a medical procedure.

                                         BACKGROUND

¶2.    Because the trial court directed a verdict for the defendants, we begin by setting forth

the facts in the light most favorable to the plaintiffs. After fathering six children, Bennie Scott
Whittington considered having a vasectomy.          He and his wife, Tina, visited Dr. Woodie L.

Mason at the Hinds Urology Clinic, P.A. (the “Clinic”), on May 19, 1998, to discuss the

procedure.       A nursing assistant directed the Whittingtons to a room where they watched an

informational videotape about the vasectomy procedure.             After watching the videotape, the

Whittingtons met with Dr. Mason to discuss the procedure. At some point prior to leaving the

clinic, the Whittingtons were presented with a consent form for the procedure which disclosed

certain risks.     The Whittingtons signed the consent form just below the following language

printed on the form: “we have been informed of alternatives and complications.”

¶3.     Mr. Whittington returned on May 29, 1998, for the vasectomy, which Dr. Mason

performed as an out-patient procedure.         Following the procedure, Mr. Whittington returned

home. Within a few hours, he began to experience severe pain and swelling in his scrotal area.

Mrs. Whittington called Dr. Mason who instructed Mr. Whittington to return to the clinic. Dr.

Mason advised Mr. Whittington to stay off his feet for the remainder of the day, but advised

him that the pain should resolve within a few hours, and he should be able to return to work

within 72 hours.

¶4.     Mr. Whittington continued to experience severe pain, bruising and swelling.              He

returned to see Dr. Mason on June 2 and again on June 8. During the latter visit, Dr. Mason

released Mr. Whittington to return to work. The next day at work, Mr. Whittington and another

worker were lifting a tire from an “18 wheeler” when Mr. Whittington experienced an episode

of extreme pain on the right side of his scrotum. He was also bleeding in the scrotal area. He

called Dr. Mason who instructed him to return to the clinic the next day.




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¶5.     Dr. Mason applied silver nitrate to the scrotal area and then informed Mr. Whittington

that he required a second surgery to remove a granuloma that had developed following the

vasectomy.

¶6.     After Dr. Mason removed the granuloma on July 15, Mr. Whittington continued to

experience pain, severe swelling and bruising for six to eight weeks.          An open, draining hole

remained at the surgical site, and he was unable to return to work for several weeks.

¶7.     When Dr. Mason saw Mr. Whittington again on July 24, he advised that the pain should

subside.   On August 3, Dr. Mason released Mr. Whittington to return to work.               However,

because he still experienced pain, Mr. Whittington decided to seek a second opinion.

¶8.     Sometime around the middle of August, Mr. Whittington scheduled an appointment with

Dr. Bruce Shingleton, who recommended another surgery to remove a granuloma.                     The

procedure was performed at the end of August. Mr. Whittington continued to experience pain

and severe swelling for several weeks.       He remained under Dr. Shingleton’s care for several

months because the pain continued.

¶9.     On November 30, Dr. Shingleton released Mr. Whittington. However, because he still

suffered abdominal cramps and pain following sexual activity, Mr. Whittington decided to get

a third opinion.

¶10.    On January 29, 1999, Mr. Whittington saw Dr. Lionel Fraser who prescribed a course

of pain therapy and treatment which included a scrotal injection to alleviate the pain.         When

these measures did not end the pain, Dr. Fraser removed Mr. Whittington’s right testicle, and

approximately one week later the pain subsided.




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¶11.     The Whittingtons filed suit against Dr. Mason and the Clinic, alleging various causes

of action. However, an Agreed Order of Partial Summary Judgment was entered, leaving as the

only relevant issue before the trial court the question of whether Dr. Mason obtained informed

consent to perform the vasectomy.

¶12.     At trial, the Whittingtons did not call an expert to establish the material risks which

should have been disclosed in order to obtain informed consent. After the jury failed to reach

a verdict, the trial court directed a verdict for the defendants.   The Whittingtons timely filed

an appeal which was assigned to the Court of Appeals.

¶13.     In affirming the trial court’s directed verdict for the defendants, the Court of Appeals

stated that “[e]xpert testimony is necessary to determine whether or not the loss of a testicle

is a known risk in a procedure such as a vasectomy.” 2004 WL 2163388 at *3 (Miss. Ct. App.

2004).     Because the Whittingtons presented no expert testimony, the Court of Appeals

concluded that the defendants could not be held liable for failure to disclose the loss of a

testicle as a risk of the procedure. The Court of Appeals provided no further analysis of the

Whittingtons’ claim that Dr. Mason failed to adequately inform them of other risks of the

vasectomy including severe, chronic pain and bruising, sperm granuloma, and additional

medical procedures.

¶14.     In a motion for rehearing, the Whittingtons directed the Court of Appeals to Dr.

Mason’s own testimony in which he admitted the existence of multiple “known risks” of a

vasectomy. In their brief, the Whittingtons state:

                 Mr. Whittington suffered an orchiectomy, and the decision of the Court
         of Appeals holds that there was no expert testimony at trial to establish that the
         “orchiectomy” was a “known risk” of Dr. Mason’s vasectomy. But accepting the


                                                     4
       holding of the Court of Appeals, according to the transcript of the trial
       testimony, the same holding cannot be applied to the other “known risks” to
       which Dr. Mason testified while being cross-examined in the Plaintiffs’ case-in-
       chief at the trial of this civil action. Those other “known risks” of chronic pain,
       sperm granuloma and additional surgical procedures represent painful and
       compensable complications which were suffered by Scott Whittington as a
       result of Dr. Mason’s vasectomy procedure, and those other post-vasectomy
       complications are matters on which Scott Whittington presented evidence at
       trial.

¶15.   We granted the Whittingtons’ petition for writ of certiorari and now proceed to finally

decide the matter.

                                          ANALYSIS

¶16.   Every medical procedure involves risks. As discussed infra, no court has ever required

a physician to disclose to a patient every possible risk of a medical procedure. Instead, from

among all possible risks of a procedure, only those which are material must be disclosed in

order to obtain informed consent to the procedure. This begs the question: What must be done

(in the legal sense) to establish what are – and are not – the material risks of a particular

procedure?

¶17.   It is apparent from the excellent briefs submitted by both parties that our jurisprudence

regarding “informed consent” is not crystal clear on this point.   We shall therefore review in

some detail the prior decisions of this Court which discuss the requirements for informed

consent.

       Professional community standard

¶18.   Prior to 1985, Mississippi followed the “professional community” standard for a

determination of the material risks which must be disclosed in order to obtain conformed

consent.   This professional community standard, in turn, required medical experts to establish


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the acceptable standard within the medical community. For instance, in Ross v. Hodges, 234

So. 2d 905 (Miss. 1970), a patient charged her physician with failure to disclose the risk of

neurological deficit associated with cranial surgery.       In affirming the trial court’s directed

verdict on the issue of informed consent, this Court held, “Plaintiff had the burden of proving,

in this respect, the professional standard according to the customs of medical practice of

neurosurgeons in this area.”1 Id. at 909.

        Reikes v. Martin

¶19.    In 1985, this Court decided Reikes v. Martin, 471 So.2d 385 (Miss. 1985), wherein

the plaintiff claimed inter alia, that her doctors failed to obtain her informed consent to cobalt

therapy for uterine cancer. In their appeal of a jury verdict of $543,750, the doctors assigned

as error the granting of a jury instruction which provided that “the defendants could be found

liable for failing to fully inform [the plaintiff] of the risk of cobalt therapy, where no evidence

in the record showed she would have elected not to undergo the therapy had she been so

informed.” Id. at 391. In briefly discussing a physician’s duty to inform a patient of risks, the

Reikes Court recognized and cited the authority of Ross v. Hodges. It is important to note at

this juncture that, as to the test for material risks, the Reikes Court neither questioned nor

overruled Ross v. Hodges.




        1
         In Hall v. Hilbun, 466 So. 2d 856, 874-75 (Miss. 1985), the requirement that medical
experts base their opinions on local standards of care was changed to allow testimony based upon the
standard of care of “minimally knowledgeable and competent physicians in the same specialty or
general field of practice. . . .” This change, however, has no bearing on the case before us today.

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¶20.    As to the issue of causation (which was the only “informed consent” issue raised on

appeal and discussed in Reikes), this Court began by setting forth the jury instruction at issue,

which stated:

                  The court instructs the jury that a physician must obtain consent from a
        patient to perform the procedure or treatment performed on the patient. To
        obtain the required consent, the physician must explain the procedure to the
        patient and warn the patient of all material risks or dangers in the procedure or
        treatment. The purpose of the explanation is to enable the patient such as [the
        plaintiff] to make an intelligent and informed choice about whether to undergo
        the treatment or procedure, in this case, cobalt therapy. The physician is
        negligent if he fails to disclose to the patient . . . all material information, risks
        and warnings.
                  A risk or danger is material if it would be important to a reasonable
        person in the patient’s position in making the decision whether or not to undergo
        the procedure or treatment, in this case, cobalt therapy.
                  The physician is not required to disclose all possible information. The
        physician need only disclose information for a reasonable person to make an
        intelligent decision.

Reikes, 471 So. 2d at 392. Commenting on the instruction, the Reikes Court then stated:

                 Although not referred to by name, this instruction applied2 the so-called
        prudent patient or materiality of the risk standard in determining what risks must
        be revealed to the patient. Under this standard, a physician must disclose those
        known risks which would be material to a prudent patient in determining whether
        or not to undergo the suggested treatment.
                 The appellants contend that the above jury instruction was erroneous as
        it allowed recovery upon proof that informed consent was not given and without
        any showing of causation, i.e., that Mrs. Martin would not have elected to
        undergo the treatment if she had been informed of the known risks.

Id. The Reikes Court then addressed the causation issue:

               To recover under the doctrine of informed consent, as in all negligence
        cases, there must be a causal connection between the breach of duty by the



        2
         Although the instruction applied the “prudent patient or materiality of the risk standard”
for the determination of which risks must be disclosed, the Reikes Court neither approved nor
adopted the standard.

                                                    7
        defendant and the injuries suffered by the plaintiff. Some states have adopted
        a subjective standard, requiring the plaintiff to testify or otherwise prove that
        she would not have consented to the proposed treatment if she had been fully
        informed. [citations omitted]. A second test, and the one used by the vast
        majority of the states, is based upon an objective standard. Under this test, the
        question becomes whether or not a reasonably prudent patient, fully advised of
        the material known risks, would have consented to the suggested treatment.

Id. The Reikes Court then stated: “[W]e think an objective test is the more desirable and adopt

that test as the one to be applied in this State.” Id. at 393. Critical to an understanding of the

holding in Reikes is that the Court adopted the objective test for causation, but did not make

any finding with respect to the duty to disclose.

¶21.    Nevertheless, the Reikes decision would be credited in later cases with adopting the

objective patient-need standard for determining the materiality of a risk. See, e.g., Herrington

v. Spell, 692 So. 2d 93, 98 (Miss. 1997) (“We have adopted [in Reikes] an objective test to

determine what information a physician must disclose. . . .”); Hudson v. Parvin, 582 So. 2d

403, 410 (Miss. 1991) (“We have adopted an objective test [in Reikes] to determine what

information a physician must disclose. . . .”); Phillips ex rel. Phillips v. Hull, 516 So. 2d 488,

493 (Miss. 1987) (“However, recently the Court [in Reikes] recognized the objective patient-

need standard. . . .”).

¶22.    Thus, the perceived change from the “professional community” standard to the

“objective patient need” standard for determining material risks, springs from a misapplication

of Reikes. It bears repeating that the adoption by the Reikes Court of the objective standard

for purposes of determining causation is unrelated to the obligation of the plaintiff to




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produce expert testimony to establish the material risks of a medical procedure which should

be disclosed.

¶23.    The use of the objective (as opposed to subjective) standard for establishing causation,

as announced in Reikes, is not before us.

¶24.    As recognized by the Reikes Court, no doctor could comply with a requirement to

disclose every possible risk to every procedure. 471 So. 2d at 392.              Doctors must, however,

disclose material risks associated with a particular procedure.        Among the many factors which

could weigh on the question of materiality are frequency of occurrence, potential severity or

danger associated with the risk, and the cost and availability of an alternative procedure. These

factors cannot be established absent expert testimony.

        This Court’s holding

¶25.    Thus, we hold today that expert 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.       In the event of conflicting expert testimony, the finder of fact must

evaluate the basis for each expert opinion and decide which is more credible.                      This

determination is no different from other issues requiring expert testimony.

¶26.    The record in the case sub judice indicates that there were several “risks” of the

vasectomy which the Whittingtons claim were not disclosed.                    However, the Whittingtons

produced no expert testimony to establish that these risks were material and should have been

disclosed. Thus, the Whittingtons’ claim of lack of informed consent must fail.

¶27.    Our review of the record in this case leads us to the conclusion that the jury had no

reasonable basis to determine that material risks of a vasectomy included any of the undesired


                                                    9
results of the procedure which the Whittingtons claim were not disclosed.             Any such

determination by the jury would have been pure speculation.

                                          CONCLUSION

¶28.   We hold that a plaintiff must produce expert testimony to establish the material risks

and available alternatives of a medical procedure.      Absent such expert testimony, a jury may

not consider whether a physician conducted a medical procedure without informed consent.

To the extent this Court’s prior cases – including the cases cited herein – conflict with our

decision today, they are hereby overruled.        Because the Whittingtons produced no expert

testimony to assist the jury in determining which complications of the vasectomy were

material risks requiring disclosure or further explanation prior to the procedure, we affirm the

trial court’s grant of judgment in favor of the defendants and the judgment of the Court of

Appeals.

¶29.   AFFIRMED.

    SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND RANDOLPH, JJ.,
CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. EASLEY, J., DISSENTS
WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.




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