IN THE SUPREME COURT OF MISSISSIPPI

2015-CA-00334-COA

DR. RANDALL HINES,MISSISSIPPI REPRODUCTIVE MEDICINE, PLLC, andDR. PAUL SEAGO, PETITIONERS,

v.

LACY DODD and CHARLES DODD, RESPONDENTS.

On Petition for Writ of Certiorari tothe Mississippi Court of Appeals

PETITION FOR WRIT OF CERTIORARIOF DR. PAUL SEAGO

John B. Howell III (MSB# 102655)Walter T. Johnson (MSB# 8712)

WATKINS & EAGER PLLCPost Office Box 650

Jackson, Mississippi 39205601.965.1900

E-Filed Document Feb 17 2017 15:16:29 2015-CT-00334-SCT Pages: 49

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TABLE OF CONTENTS

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Reasons for Granting the Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. The Court of Appeals erred in holding Lacy Dodd did not consent to removal of herovaries when she entered the consent agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. The majority’s refusal to enforce the parties’ consent agreement is a significantdeparture from this Court’s interpretation and enforcement of written agreements . . . 4

2. Because only the Legislature has the power to make public policy, the majority’sdecision violates the separation-of-powers provision of the Mississippi Constitution . 7

3. The public policy decreed by the majority is a poor one . . . . . . . . . . . . . . . . . . . . . . . 8

B. The Courts of Appeals erred in concluding summary judgment was improper onPlaintiffs’ medical negligence claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

INDEX OF APPENDICES

Appendix A Opinion and Judgment of the Court of Appeals

Appendix B Motion for Rehearing

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TABLE OF AUTHORITIES

CONSTITUTIONS AND STATUTES

MISSISSIPPI CONSTITUTION OF 1890, Article 1, Section 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

MISSISSIPPI CONSTITUTION OF 1890, Article 7, Section 198 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CASES

Barner v. Gorman, 605 So. 2d 805 (Miss. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Blakeney v. McRee, 188 So. 3d 1154 (Miss. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Fox v. Smith, 594 So. 2d 596 (Miss. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

J.R. ex rel. R.R. v. Malley, 62 So. 3d 902 (Miss. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Jamison v. Kilgore, 903 So. 2d 45 (Miss. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Johnson v. Pace, 122 So. 3d 66 (Miss. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Keeton v. Morningstar, Inc., 667 F.3d 877 (7th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Kelly v. Mississippi Valley Gas Co., 397 So. 2d 874 (Miss. 1981) . . . . . . . . . . . . . . . . . . . . . . 7, 8

McMichael v. Howell, 919 So. 2d 18 (Miss. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Michigan Millers Mutual Insurance Co. v. Lindsey, 285 So. 2d 908 (Miss. 1973) . . . . . . . . . . 4, 5

Pinson v. Berkebile, 576 F. App’x 710 (10th Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

QBE Insurance Corp. v. Brown & Mitchell, Inc., 591 F.3d 439 (5th Cir. 2009) . . . . . . . . . . . . . . 9

Reynolds v. Allied Emergency Services, PC, 193 So. 3d 625 (Miss. 2016) . . . . . . . . . . . . . . . . . . 5

Robinson v. State Farm Mutual Automobile Insurance Co., 813 So. 2d 924(Ala. Civ. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Russell v. Performance Toyota, Inc., 826 So. 2d 719 (Miss. 2002) . . . . . . . . . . . . . . . . . . . . . . . 4

Smith v. Simon, 224 So. 2d 565 (Miss. 1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Stallworth v. Sanford, 921 So. 2d 340 (Miss. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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RULES

MISSISSIPPI RULE OF CIVIL PROCEDURE 56(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

OTHER AUTHORITIES

RESTATEMENT (THIRD) OF TORTS: INTENTIONAL TORTS TO PERSONS Section 101 . . . . . . . . . . . 4

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I. INTRODUCTION

This Court has recognized two kinds of consent claims a patient may assert against a

physician. One is a civil battery or “no consent” claim, where the physician did not have permission

to touch the patient at all. The other is an “informed consent” claim, where the physician obtained

permission to touch the patient but without disclosing the material known risks of the procedure.

This case involves a “no consent” claim and presents the following seeminglystraightforward

issue of first impression in Mississippi:

Where a patient signs an agreement authorizing a physician toperform any procedures deemed necessary in his professionaljudgment, has the patient consented to those procedures?

Remarkably, the Court of Appeals said “no” by a 5 to 3 vote. That answer is as profoundly

important as it is misplaced.

First, by refusing to enforce the terms of the parties’ consent agreement as written, the Court

of Appeals majorityhas misapplied this Court’s longstanding principles regarding interpretation and

enforcement of written agreements. In so doing, the majority has made Mississippi an outlier among

the states which have nearly unanimously concluded that such consent agreements foreclose battery

claims by the patients who sign them.

Second, by rewriting rather than enforcing the parties’ agreement, the majority has imposed

its view of what the State’s public policy should be with respect to the permissible breadth of consent

agreements. Yet this Court has unequivocally held that the Legislature alone possesses the power

to make public policy. As suggested by dissenting Judges Wilson, Griffis, and Carlton, the

majority’s opinion does not square with the separation-of-powers established by the Mississippi

Constitution, which is perhaps the most important core principle of our State Government.

Last, if not corrected, the public policy improperly pronounced by the majority will lead to

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untoward consequences. Physicians will be severely restricted in acting in their patients’ best

interests during operations. In turn, more medical procedures will be required, which will exact a

heavy toll—in the form of time, labor, cost, and health—on physicians, insurers, the State treasury,

and (most importantly) patients. Hence the wisdom of leaving public policy to lawmakers, not

judges.

As fully explained below, Petitioner Dr. Paul Seago respectfully requests this Honorable

Court to grant this Petition for Writ of Certiorari, reverse the judgment of the Court of Appeals, and

reinstate the judgment of the Rankin County Circuit Court.

II. STATEMENT OF THE CASE

Lacy Dodd had a long personal history of recurring ovarian cysts and severe pelvic pain, and

a family history of endometriosis and ovarian, cervical, uterine, and breast cancers. Desiring to

address her chronic infertility, she decided to undergo surgery to excise cysts on her ovaries and to

possibly remove her fallopian tubes. The consent agreement she signed authorized her physicians

to perform those procedures and “such additional surgeries and procedures . . . considered

necessary . . . in the judgment of” her physicians.

During the operation, Mrs. Dodd’s ovaries were found to be enlarged, completely covered

in what appeared to be cancerous lesions, and lacking any normal tissue from which she could ever

bear a child. Exercising their professional judgment as authorized by the consent agreement, Dr.

Randall Hines (an ob/gyn specializing in infertility treatment) and Dr. Paul Seago (an ob/gyn cancer

specialist Dr. Hines consulted intraoperatively) determined that removal of the diseased ovaries was

necessary for Mrs. Dodd’s health. Fortunately, neither ovary turned out to be cancerous. This

lawsuit nevertheless followed, in which Mr. and Mrs. Dodd assert two claims against Dr. Hines, his

clinic, and Dr. Seago: (1) a civil battery claim for removing Mrs. Dodd’s ovaries without her

1 Therefore, all of the cases the majority and Plaintiffs cite which address informed consent claims areentirely irrelevant. Likewise, the Plaintiffs’ dire prediction that enforcing the subject consent agreement willspell the death of informed consent in Mississippi is irrelevant hyperbole. (Pls. Resp. to M. for Reh’g. at 1.)

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consent, and (2) a medical negligence claim based on their decision to remove her ovaries.

The Rankin County Circuit Court granted summary judgment for the Defendants on both

claims. As to the battery claim, the court concluded Mrs. Dodd consented to the removal of her

ovaries by signing the consent agreement. And regarding the medical negligence claim, the court

effectively denied Plaintiffs’ request for time under Rule 56(f) to find an expert, which meant that

Plaintiffs could not establish causation (among other elements of the claim).

Plaintiffs appealed. Over a three-judge dissent, a five-judge majority of the Court of Appeals

reversed. Regarding the battery claim, the majority concluded Mrs. Dodd had not consented to

removal of her ovaries. The majority opinion did not address the medical negligence claim.

Dr. Seago now petitions this Court for a writ of certiorari to review the issues which divided

the Court of Appeals.

III. REASONS FOR GRANTING THE PETITION

A. The Court of Appeals erred in holding Lacy Dodd did not consent to removal of herovaries when she entered the consent agreement.

It is important to say what the central issue is not: “Was it was medically appropriate for Drs.

Hines and Seago to remove Lacy Dodd’s ovaries?” That is the essence of Plaintiffs’ separate

medical negligence claim, on which, as shown below in Section III.B, Defendants were correctly

awarded summary judgment by the circuit court.

Neither is this case about an “informed consent” claim, where a patient’s consent was

admittedly obtained but without the physician disclosing the material “known risks of the

procedure.” Jamison v. Kilgore, 903 So. 2d 45, 50 (Miss. 2005).1 Plaintiffs have not claimed (nor

2 A civil battery claim consists of intentionally making contact with another person without his consent.RESTATEMENT (THIRD) OF TORTS: INTENTIONAL TORTS TO PERSONS § 101DD (2014); see J.R. ex rel. R.R.v. Malley, 62 So. 3d 902, 906 (Miss. 2011); Fox v. Smith, 594 So. 2d 596, 604 (Miss. 1992).

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logically could they) that removal of Mrs. Dodd’s ovaries was a known risk—i.e., an “undesirable

symptom or condition”—of the operation she was scheduled to have. Id. Removal of her ovaries

was a different, albeit related, procedure.

Rather, the key issue here arises from Mrs. Dodd’s civil battery/no consent claim2 that the

Defendants did not have permission to remove her ovaries, which presents the question of first

impression that divided the Court of Appeals: “Where a patient signs an agreement authorizing a

physician to perform any procedures deemed necessary in his professional judgment, has the patient

consented to those procedures?” The answer is “yes,” and the majority’s contrary conclusion was

erroneous for the following reasons.

1. The majority’s refusal to enforce the parties’ consent agreement is a significantdeparture from this Court’s interpretation and enforcement of written agreements.

“The right to contract and have contracts enforced is a basic one guaranteed by the

Constitutions.” Smith v. Simon, 224 So. 2d 565, 566 (Miss. 1969). Here, as in most contracts, each

party “has important rights hinged to the terms agreed upon[,] and if not contrary to law or public

policy, the courts must enforce them as written. These rights are basic to a free business

community.” Michigan Millers Mut. Ins. Co. v. Lindsey, 285 So. 2d 908, 910 (Miss. 1973).

The consent agreement here is a contract like any other. Mrs. Dodd signed it and certified

she had read it, had it explained to her, and fully understood it. (R. 76.) As a matter of law, by

signing the document she was charged with knowing and understanding its contents. Russell v.

Performance Toyota, Inc., 826 So. 2d 719, 726 (Miss. 2002).

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The only relevant inquiry is whether the removal of Mrs. Dodd’s ovaries falls within the

scope of the consent agreement, which authorizes “the performance of such additional surgeries and

procedures . . . considered necessary . . . in the judgment of my doctor.” (R. 76.) The removal of

her ovaries is indisputably an additional “surgery” or “procedure.” And both Drs. Hines and Seago

submitted testimony that, in their professional judgment, they considered removal of Mrs. Dodd’s

ovaries to be necessary for her health. (R. 109–10, 214–15, 239–40, 245–46; R.E. 22–29.)

Therefore, Mrs. Dodd plainly consented to the removal of her ovaries. Because absence of consent

is an essential element of a civil battery claim, Defendants are entitled to summary judgment.

The Court of Appeals majority avoided that conclusion in three ways, all of which are

misplaced. First, it imported a common law rule of construction from New Jersey to limit the

permissible breadth of consent agreements in Mississippi to additional procedures which are

“substantially” similar to the planned procedures. (Op. ¶ 24.) In so doing, the majority ignored the

cardinal interpretive rule in Mississippi that agreements should be enforced “as written.” Michigan

Millers, 285 So. 2d at 910; accord Reynolds v. Allied Emergency Servs., PC, 193 So. 3d 625, 633

(Miss. 2016). Instead, the majority rewrote the parties’ agreement.

Beyond that, the majority does not even acknowledge the numerous cases from other states

cited in Defendants’ briefs which unflinchingly enforced materially indistinguishable consent

agreements. (Seago Br. at 6–8; Hines Br. at 11–13.) Mississippi will now find itself opposite the

overwhelming majority of other jurisdictions that have interpreted similar agreements.

Second, and likewise contrary to the plain language of the consent clause where Mrs. Dodd

left it to the “judgment of my doctor” to determine whether additional procedures were “necessary,”

the Court of Appeals majority said that “[d]etermination of whether the procedure would be

necessary or emergent should require expert testimony.” (Op. ¶ 21.) What authority did the majority

3 Unlike informed consent and medical negligence claims, Mississippi law does not require expert testimonyfor battery claims; it is purely a matter of consent, vel non.

4 But to the extent informed consent cases could be relevant, the majority totally ignored this Court’s morerecent holding in McMichael v. Howell, 919 So. 2d 18, 23 (Miss. 2005) that a signed agreement which recitedthat the plaintiff had been informed of the procedure’s material known risks negated her claim that she wasnot actually informed of those risks. If a signed agreement can be dispositive of informed consent underthose circumstances, how can a signed agreement not be dispositive of consent here?

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cite for that proposition? Absolutely none. And for good reason: as the dissenting judges suggested

(op. ¶ 42), no expert could possibly say whether Drs. Hines and Seago considered removal of Mrs.

Dodd’s ovaries to be necessary. The only evidence of that which could exist is possessed by the

doctors themselves, which they set forth in their affidavits. The majority simply read something into

the agreement—the requirement of an expert’s post-hoc opinion—which the parties did not agree

to.3

Third, the majority relied on Barner v. Gorman, 605 So. 2d 805 (Miss. 1992), for the notion

that consent agreements “are not necessarily dispositive of a patient’s consent.” (Op. ¶ 22.) But as

Dr. Seago argued (Br. at 13) and the dissenting judges rightly noted (op. ¶ 43), Barner was an

informed consent case rather than a no consent/battery case, so it simply has no bearing on whether

Mrs. Dodd in fact consented to removal of her ovaries.4 Regardless, the only evidence in the record

as to whether Mrs. Dodd in fact consented is the consent agreement. Because there is no other

evidence, there is no reason why the agreement is not dispositive of whether she consented.

Because “[t]he function of the courts is to enforce contracts rather than enable parties to

escape their obligation upon the pretext of public policy,” the consent agreement should be enforced

and summary judgment for Dr. Seago on this claim affirmed. Smith, 224 So. 2d at 566.

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2. Because only the Legislature has the power to make public policy, the majority’sdecision violates the separation-of-powers provision of the Mississippi Constitution.

Article 1 Section 2 of the Mississippi Constitution of 1890 forbids one branch of the State

Government from “exercis[ing] any power properly belonging to either of the others.” Per this

Court, “any public policy determinations of the law are vested exclusively in the legislative branch

of government.” Blakeney v. McRee, 188 So. 3d 1154, 1163 (Miss. 2016); accord Kelly v.

Mississippi Valley Gas Co., 397 So. 2d 874, 877 (Miss. 1981) (a “public policy decision is . . . an

exclusive [] subject for the Legislature to consider”). Indeed, the Mississippi Constitution

specifically instructs that “[t]he Legislature shall enact laws to prevent all . . . contracts [] and

agreements inimical to the public welfare.” MISS. CONST. art. 7, § 198. No such power is conferred

on the Judiciary.

Although the majority denies it, at the core its resolution of the central issue is a public policy

determination. Nowhere does the majority cite any legislative enactment which remotely suggests

that a patient’s signed agreement for a physician to conduct additional procedures that are necessary

in his judgment is impermissibly broad, invalid, or unenforceable. Rather, the majority opinion

borrows New Jersey common law to create out of thin air a “substantially similar” limitation on the

scope of the consent agreement. (Op. ¶ 24.) Our Legislature would be surprised to learn that New

Jersey common law is the origin of this State’s public policy regarding the acceptable scope of

consent agreements.

Distilled to its essence, the majority opinion is merely a pronouncement that broad consent

agreements are a bad idea for this State. Maybe they are, or maybe they are not. But that decision

rests with the Legislature, not the Judiciary. This Court has wisely observed, apropos here: “In

modern times the trend to turn to the judicial department for a solution to all of the real or imagined

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ills of our society has increased sometime to the point of requesting the courts to usurp the legislative

power of the legislative department. This, we must resist by the exercise of judicial self restraint and

limit our role to the judicial power granted the judicial department under our Constitution.” Kelly,

397 So. at 877.

3. The public policy decreed by the majority is a poor one.

If uncorrected, the consequences of the Court of Appeals’ improper public policy declaration

will be severe. Just think about it: any physicians who use consent agreements in the future will

have basically two options if they are to avoid being sued for a battery. The first requires them to

make complex legal judgments (for which they have no training) in the middle of their operations,

such as: “Is this additional, non-emergent procedure that my patient needs ‘substantially similar’ to

the procedures explicitly authorized in the consent agreement?” For the physicians who happen to

conclude the additional procedure is authorized, disgruntled or litigious patients can nevertheless

second-guess that conclusion by suing for battery under the amorphous “substantially similar”

standard adopted by the majority.

The second, and much more likely, alternative is that physicians will err on the side of

caution and not perform any additional procedure beyond those explicitly authorized, even if it

would be in their patients’ best interests. Consequently, patients will have to endure a second

procedure to address the maladies discovered during the first, which will result in more medical

expense, more time off work, more time to heal, more strain on their families/caretakers, and more

risk to their health. The second procedure will also impose significant time, labor, and cost burdens

on the State’s already overwhelmed physicians, health insurers, and fisc. The physicians themselves

may even be sued for medical negligence for not taking additional actions during the first operation.

Beyond that, patients’ rights to let their physicians help them will be severely diminished.

5 In the Court’s Order and Final Judgment, the Court stated that its ruling on the consent claim was not basedon “plaintiffs’ failure to submit an expert affidavit in response to” Drs. Hines’s and Seago’s affidavits, whichaddressed the consent claim only. (R. 248; R.E. 31.)

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Due to the majority’s edict, it will be truly impossible for a patient in this State to preoperatively

authorize a physician who encounters unanticipated, non-emergent conditions dissimilar to the

planned procedure to do whatever he believes is necessary and in the patient’s best interests. For

example, a patient having his gallbladder removed will have no way to give advance permission to

the surgeon to remove early-stage cancer, fix a slow GI bleed, or remove a slightly infected appendix

discovered during the procedure. Such repercussions of the majority’s public policy decree will be

profound, even if unintended.

B. The Courts of Appeals erred in concluding summary judgment was improper onPlaintiffs’ medical negligence claim.

Although the majority opinion did not squarely address the medical negligence claim, Dr.

Seago was nevertheless entitled to summary judgment on it because Plaintiffs did not come forward

with any expert testimony on the causation element, which is required under Mississippi law.

Johnson v. Pace, 122 So. 3d 66, 68 (Miss. 2013).

Drs. Hines and Seago moved for summary judgment on that very issue. (R. 71–72, 204; R.E.

17–18, 21.) Although the circuit court’s decision was not explicitly predicated on that ground (R.

247–48; R.E. 30–31), an appellate court “may affirm summary judgment on any basis raised below

and supported by the record.” QBE Ins. Corp. v. Brown & Mitchell, Inc., 591 F.3d 439, 443 (5th Cir.

2009); see Robinson v. State Farm Mut. Auto. Ins. Co., 813 So. 2d 924, 928 (Ala. Civ. App. 2001).

Plaintiffs may respond that they moved under Rule 56(f) for more time to locate an expert

and come forward with an affidavit to avoid summary judgment.5 (R. 117.) The circuit court’s entry

of final judgment effectively denied that motion, however. Pinson v. Berkebile, 576 F. App’x 710,

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711 (10th Cir. 2014) (entry of final judgment denies all pending motions); Keeton v. Morningstar,

Inc., 667 F.3d 877, 882 (7th Cir. 2012) (same). The circuit court “has sound discretion to grant or

deny a continuance under Rule 56(f)” and can only be reversed for an abuse of that discretion.

Stallworth v. Sanford, 921 So. 2d 340, 342–43 (Miss. 2006).

There was no abuse of discretion here. When the circuit court granted Defendants’ motions

and entered judgment on February 6, 2015, it had been just shy of three years since Plaintiffs’

original legal counsel had sent Defendants a notice of claim. (R. 155.) Further, this lawsuit had

been pending for almost 21 months, and Defendants’ motion for summary judgment had been

pending for over 13 months. (R. 17, 69, 204, 247; R.E. 15, 21, 30.) Moreover, Plaintiffs’ Rule 56(f)

motion had been pending for 10 months. (R. 117, 247.) Therefore, Plaintiffs were afforded ample

opportunity to come forward with an affidavit from an expert to defeat summary judgment on this

claim. Yet they failed to do so. The circuit court did not abuse its discretion in denying Plaintiffs’

Rule 56(f) motion. Summary judgment was thus appropriate for Dr. Seago due to the lack of expert

testimony on the causation element of Plaintiffs’ medical negligence claim.

IV. CONCLUSION

For the foregoing reasons, this Petition for Writ of Certiorari should be granted, the judgment

of the Court of Appeals reversed, and the judgment of the Rankin County Circuit Court reinstated.

This 17th day of February 2017. Respectfully submitted,

DR. PAUL SEAGO

By: /s/John B. Howell IIIJohn B. Howell III (MSB #102655)Walter T. Johnson (MSB #8712)WATKINS & EAGER PLLCPost Office Box 650Jackson, Mississippi 39205601.965.1900

APPENDIX A

OPINION AND JUDGMENT OF THE COURT OF APPEALS

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, MISSISSIPPIREPRODUCTIVE MEDICINE, PLLC AND DR.PAUL SEAGO

APPELLEES

DATE OF JUDGMENT: 02/06/2015TRIAL JUDGE: HON. WILLIAM E. CHAPMAN IIICOURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURTATTORNEYS FOR APPELLANTS: J. KEITH PEARSON

SARAH LYNN DICKEYATTORNEYS 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 MALPRACTICETRIAL COURT DISPOSITION: SUMMARY JUDGMENT FOR

DEFENDANTSDISPOSITION: REVERSED AND REMANDED - 09/06/2016MOTION 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 surgeriesand procedures (whether or not arising from presently unforeseen conditions)considered necessary or emergent in the judgment of my doctor or those of thehospital’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 toconfirm the presence of cancer because they reasoned that a biopsy would not havedefinitively excluded a diagnosis of cancer and, assuming the ovaries were cancerous, abiopsy could have potentially spread the cancer throughout the pelvis and abdomen.

3 A bilateral salpingo-oophorectomy is a procedure in which both ovaries areremoved.

4 The justification for the removal of Lacy’s ovaries was given in the affidavits ofHines and Seago. Neither Hines’s nor Seago’s affidavit was submitted as or considered asan expert opinion by the circuit court.

5 Serous cystadenofibroma is a condition in which a benign tumor appears cancerous.

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¶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 thedeep 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 thedefendant, 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 thebody cavity to allow for direct visualization of the ovaries, fallopian tubes, and uterus. It istypically done to diagnose and treat pelvic organ disorders, as well as to perform surgicalprocedures on the same organs.

9 Endometriosis is a disorder in which tissue that normally lines the inside of theuterus 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 theabdominal 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 ofconsent, 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. 2d1261 (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 thecase had gone to trial. In McMichael, the plaintiff provided answers to interrogatories andthe circuit court allowed the plaintiff additional time to depose the defendant and provideexpert-witness disclosures. McMichael, 919 So. 2d at 20 (¶3). In Whittington, a trial hadbeen conducted. Whittington, 905 So. 2d at 1263 (¶12). In Reikes, a trial had also beenconducted. 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 informedconsent. 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 ISREVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGSCONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL AREASSESSED TO THE APPELLEES.

IRVING, P.J., BARNES, ISHEE AND JAMES, JJ., CONCUR. CARLTON, J.,DISSENTS WITH SEPARATE WRITTEN OPINION. WILSON, J., DISSENTSWITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J., ANDCARLTON, 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 amedical-malpractice action based on the doctrine of informed consent, an objective standardapplies, and the question is whether a reasonably prudent patient, fully advised of materialknown 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 informedconsent and acknowledging that the plaintiff bears the burden of proof to establish theprofessional 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 surgeriesand procedures (whether or not arising from presently unforseen conditions)considered necessary or emergent in the judgment of my doctor or those of thehospital’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, Iwould not rely on the Dodds’ lack of expert testimony as a basis for granting summaryjudgment. While issues of causation or lack of expert testimony may eventually provedispositive on remand, I cannot help but conclude that the circuit court’s orders in this casewere intended to—or at least were reasonably interpreted to—hold those issues in abeyance.

23

APPENDIX B

MOTION FOR REHEARING

E-Filed Document Sep 19 2016 10:25:11 2015-CA-00334-COA Pages: 9

COURT OF APPEALS OF THE STATE OF MISSISSIPPI

2015-CA-00334-COA

LACY D ODD and CHARLES DODD

V.

DR. RANDALL HINES,

MISSISSIPPI REPRODUCTIVE MEDICINE, P LLC,

and DR. PAUL SEAGO

APPELLANTS

APPELLEES

Appeal from the Circuit Court of Rankin County

Motion for Rehearing of Appellee Dr. Paul Seago

Walter T . Johnson (MSB #8712) John B. Howell, III (MSB #102655)

WATKINS & EAGER PLLC

Post Office Box 650 Jackson, Mississippi 39205

Telephone: 601.965.1900

I. INTRODUCTION

The seemingly straightforward issue of first impression which divides this Court is whether

a patient can consent to an unanticipated medical procedure by signing an agreement which

authorizes "such additional surgeries and procedures ... considered necessary ... in the judgment

of my doctor." The answer the majority gives-"no"-is not rooted in Mississippi law nor is it

consistent with the dominant view of the states which have considered the question. Rather, as the

dissentingjudges acknowledge, the majority's opinion is nothing more than a raw declaration ofill­

advised public policy by a branch of government which has no power to make public policy.

Although motions for rehearing like this are infrequently granted where, as here, the Court

has considered and divided on the central issue before it, Dr. Paul Seago respectfully requests the

majority reconsider its decision in light of the following points.

First, by refusing to enforce the terms of the parties' consent agreement as written, the

majority severely undermines the basic right of contract in this State. In so doing, the majority

simultaneously relegates Mississippi to an outlier among the states which have nearly unanimously

concluded that broad consent agreements (like the one at issue here) foreclose battery claims by the

patients who signed them.

Second, by rewriting rather than enforcing the parties' agreement, the majority imposes its

view of what the State' s public policy should be with respect to the permissible breadth of consent

agreements. Yet the Mississippi Supreme Court has unequivocally held that the Legislature alone

possesses the power to make public policy. The majority thus breaches the Mississippi

Constitution's separation-of-powers provision, which is perhaps the most important core principle

of our State Government.

2

Last, the public policy pronounced by the majority is a bad one because of its significant

untoward consequences. Physicians will now be severely limited in acting in their patients' best

interests during operations. In tum, more medical procedures will be required, which will exact a

heavy toll-in the form of time, labor, cost, and health-on physicians, insurers, the State treasury,

and (most importantly) patients. Hence the wisdom of leaving public policy to lawmakers, not

judges.

For these reasons, Dr. Seago requests the Court withdraw its majority opinion and issue a

new opinion affirming the judgment of the circuit court.

II. ARGUMENT FOR REHEARING

It bears mentioning what the central issue is not: "Was it was medically appropriate for Drs.

Hines and Seago to remove Lacy Dodd's ovaries?" That is the essence of Appellants' medical

negligence claim, on which Appellees were correctly awarded summary judgment by the circuit

court. (Seago Br. at 16- 18; Hines Br. at 23-27.)

Rather, Mrs. Dodd' s "consent" claim (which is a mislabeled claim for civil battery1) presents

the question which divides the Court: "Did she authorize the removal of her ovaries by signing the

consent agreement?" The answer is "yes," and the majority's contrary conclusion is erroneous for

the following reasons.

A. The majority's refusal to enfor~e the parties' consent agreement is a significant diminishment of the right of contract in Mississippi.

"The right to contract and have contracts enforced is a basic one guaranteed by the

1 A civil batte1y claim consists of intentionally making contact with another person without his consent. RESTATEMENT(THIRD) OF TORTS: INTENTIONAL TORTS TO PERSONS§ 101DD (2014); seeJ.R. ex rel. R.R. v. Malley, 62 So. 3d 902,906 (Miss. 20 11).

3

Constitutions." Smith v. Simon, 224 So. 2d 565,566 (Miss. 1969). Here, as in most contracts, each

party "has important rights hinged to the terms agreed upon[,] and if not contrary to law or public

policy, the courts must enforce them as written. These rights are basic to a free business

community." Michigan Millers Mut. Ins. Co. v. Lindsey, 285 So. 2d 908, 910 (Miss. 1973).

The consent agreement here is a contract like any other. Mrs. Dodd signed it and certified

she had read it, had it explained to her, and fully understood it. (R. 76.) As a matter of law, by

signing the document she was charged with knowing and understanding its contents. Russell v.

Performance Toyota, Inc., 826 So. 2d 719, 726 (Miss. 2002).

The only relevant inquiry for the Court is whether the removal of Mrs. Dodd's ovaries falls

within the scope of the consent agreement, which authorizes "the performance of such additional

surgeries and procedures ... considered necessary ... in the judgment of my doctor." (R. 76.) The

removal of her ovaries is indisputably an additional " surgery" or "procedure." And both Drs. Hines

and Seago submitted testimony that, in their professional judgment, they considered removal of Mrs.

Dodd' s ovaries to be necessary for her health. (R. 109- 10, 214-15, 239-40, 245-46; R.E. 22-29.)

Therefore, Mrs. Dodd plainly consented to the removal of her ovaries, which entitles Appellees to

judgment as a matter of law.

The majority resists that conclusion in three ways, all of which are misplaced. First, it

imports a common law rule of construction from New Jersey to limit the permissible breadth of

consent agreements in Mississippi to additional procedures which are "substantially" similar to the

planned procedures. (Op. ,i 24.) In so doing, the majority ignores the cardinal interpretive rule that

contracts should be enforced "as written." Michigan Millers, 285 So. 2d at 910; accord Reynolds

v. Allied Emergency Servs., PC, 193 So. 3d 625,633 (Miss. 2016.) Instead, the majority re-writes

4

the parties' agreement. Beyond that, the majority does not even acknowledge the numerous cases

from other states cited in Appellees' briefs which unflinchingly enforced materially indistinguishable

consent agreements. (Seago Br. at 6- 8; Hines Br. at 11-13.) Mississippi will now find itself

opposite the overwhelming majority of other jurisdictions that have interpreted similar contracts.

Second, and likewise contrary to the plain language of the consent clause where Mrs. Dodd

left it to the "judgment of my doctor" to determine whether additional procedures were "necessary,"

the majority says that " [d]etermination of whether the procedure would be necessary or emergent

should require expert testimony." (Op. ~ 21.) What authority does the majority cite for that

proposition? Absolutely none. And for good reason: as the dissenting judges suggest (op. 1 42), no

expert could possibly say whether Drs. Hines and Seago considered removal of Mrs. Dodd's ovaries

to be necessary. The only evidence of that which could exist is possessed by the doctors themselves,

which they set forth in their affidavits. Again, the majority reads something into the contract- the

requirement of an expert' s post-hoc opinion- which the parties did not agree to.

Third, the majority relies on Barner v. Gorman, 605 So. 2d 805 (Miss. 1992), for the notion

that consent agreements "are not necessarily dispositive of a patient's consent." (Op. 122.) But as

Dr. Seago argued (Br. at 13) and the dissenting judges rightly note (op. 1 43), Barner was an

informed consent case rather than a lack of consent/battery case, so it simply has no bearing on

whether Mrs. Dodd in fact consented to removal of her ovaries. Regardless, the only evidence in the

record as to whether Mrs. Dodd in fact consented is the consent agreement; she did not, for example,

testify that she specifically forbade the procedure as did the patient in Fox v. Smith, 594 So. 2d 596

(Miss. 1992). Therefore, because there is no other record evidence besides the consent agreement,

there is no reason why it is not dispositive of whether consent was given.

5

Because "[t]he function of the courts is to enforce contracts rather than enable parties to

escape their obligation upon the pretext of public policy," the consent agreement should be enforced

and summary judgment for Appellees affirmed. Smith, 224 So. 2d at 566.

B. Because only the St~te Legislature has the power to make public policy, the majority's decision violates the separation-of-powers provision of the Mississippi Constitution.

Article 1 Section 2 of the Mississippi Constitution of 1890 forbids one branch of the State

Government from "exercis[ing] any power properly belonging to either of the others." Per the

Mississippi Supreme Court, "any public policy determinations of the law are vested exclusively in

the legislative branch of government." Blakeney v. McRee, 188 So. 3d 1154, 1163 (Miss. 2016);

accord Kelly v. Mississippi Valley Gas Co., 397 So. 2d 874, 877 (Miss. 1981) (a "public policy

decision is ... an exclusive [] subject for the Legislature to consider").2

Although the majority denies it, at the core its resolution of the central issue is a public policy

determination. Nowhere does the majority cite any legislative enactment which remotely suggests

that a patient's signed authorization for a physician to conduct additional procedures that are

necessary in his judgment is impermissibly broad, invalid, or unenforceable. Rather, the majority

opinion borrows New Jersey common law to create out of thin air a "substantially similar" limitation

on the scope of the consent agreement. (Op. 124.) The Mississippi Legislature would be surprised

to learn that New Jersey common law is the origin of this State's public policy regarding the

acceptable scope of consent agreements.

Distilled to its essence, the majority opinion is merely a pronouncement that broad consent

2 Indeed, the Mississippi Constitution specifically instructs that " [t]he Legislature shall enact laws to prevent all ... contracts [] and agreements inimical to the public welfare." MISS. CONST. art. 7 § 198.

6

agreements are a bad idea for this State. Maybe they are, or maybe they are not. But that decision

rests with the Legislature, not with the Courts. The Mississippi Supreme Court has wisely observed,

apropos here: "In modern times the trend to turn to the judicial department for a solution to all of the

real or imagined ills of our society has increased sometime to the point ofrequesting the courts to

usurp the legislative power of the legislative department. This, we must resist by the exercise of

judicial self restraint and limit our role to the judicial power granted the judicial department under

our Constitution." Kelly, 397 So. at 877.

C. The public policy decreed by the majority is a poor one.

The consequences of the majority's public policy declaration will be severe. Just think about

it: any physicians who use consent agreements in the future will have basically two options if they

are to avoid liability for a battery. The first is that they can make complex legal judgments (for

which they have no training) in the middle of their operations, such as: "Is this additional procedure

that my patient needs 'substantially similar' to the procedures explicitly authorized in the consent

agreement." For the physicians who happen to conclude the additional procedure is authorized,

disgruntled or litigious patients will be enabled to second-guess the physicians' conclusion under the

amorphous "substantially similar" standard.

The second, and much more likely, alternative is that physicians will err on the side of

caution and not perform any additional procedure beyond those explicitly authorized, even if it is

necessary and in their patients ' best interests. Hence, patients will have to endure a second

procedure to address the maladies discovered during the first, which will result in more expense,

more time off work, more time to recover, more strain on their families/caretakers, and more risk to

their health. The second procedure will also impose significant time, labor, and cost burdens on the

7

State's already overwhelmed physicians, health insurers, and fisc.

Beyond that, patients' ability to let their physicians help them will be severely hampered.

Due to the majority's edict, it will be truly impossible for a patient in this State to preoperatively

authorize a physician who encounters unanticipated conditions during an operation dissimilar to the

planned procedure to do whatever he believes is necessary and in the best interests of the patient.

For example, a patient having his gallbladder removed will have no way to give advance permission

to the surgeon to remove early-stage cancer, fix a slow GI bleed, or remove a slightly infected

appendix discovered during the procedure.

Such repercussions of the majority's public policy will be profound. If patients are to endure

such wounds, at the very least it should be their lawmakers, not their judges, who inflict them.

III. CONCLUSION

For the foregoing reasons, this Motion for Rehearing should be granted, the majority opinion

withdrawn, and a new opinion affirming the judgment of the circuit court entered.

This 19th day of September 2016. Respectfully submitted,

OR. PAUL SEAGO

By: ls/John B. Howell, III

8

Walter T. Johnson (MSB #8712) John B. Howell, III (MSB # 102655) WATKINS & EAGER PLLC Post Office Box 650 Jackson, Mississippi 39205 Telephone: 601.965.1900 Email: wjohnson@watkinseager.com

jhowell@watkinseager.com

CERTIFICATE OF SERVICE

I certify that today I served a true and correct copy of the foregoing document upon the

following in the manner indicated:

VIA MISSISSIPPI ELECTRONIC COURTS SYSTEM J. Keith Pearson - keith@keithpearsonlaw.com Sarah L. Dickey - sarahldickey@gmail.com

Counsel for Appellants

Whitman B. Johnson, III - wjohnson@curriejohnson.com Michael F. Myers - mmyers@curriejohnson.com Ben C. Lewis -blewis@curriejohnson.com

Counsel for Appellees Dr. Randall Hines and Mississippi Reproductive Medicine, PLLC

Ms. Muriel B. Ellis -sctclerk@mssc.state.ms.us Clerk of Court

VIA UNITED STATES POSTAL SERVICE The Honorable William E. Chapman, III Rankin County Circuit Court Judge Post Office Box 1626 Canton, Mississippi 39046

This 19th day of September 2016.

9

ls/John B. Howell, III John B. Howell, III

CERTIFICATE OF SERVICE

I certify that today I served a true and correct copy of the foregoing document upon thefollowing in the manner indicated:

VIA MISSISSIPPI ELECTRONIC COURTS SYSTEMJ. Keith Pearson – keith@keithpearsonlaw.comSarah L. Dickey – sarahldickey@gmail.com

Counsel for Respondents

Whitman B. Johnson, III – wjohnson@curriejohnson.comMichael F. Myers – mmyers@curriejohnson.comBen C. Lewis – blewis@curriejohnson.com

Counsel for Petitioners Dr. Randall Hines andMississippi Reproductive Medicine, PLLC

Ms. Muriel B. Ellis – sctclerk@mssc.state.ms.usClerk of Court

VIA UNITED STATES POSTAL SERVICEThe Honorable William E. Chapman, IIIRankin County Circuit Court JudgePost Office Box 1626Canton, Mississippi 39046

This 17th day of February 2017. /s/John B. Howell IIIJohn B. Howell III