In it opinion filed on September 14, 2017, the Supreme Court of Mississippi (“Mississippi Supreme Court”) reversed summary judgment that was granted to the defendant physicians in a Mississippi medical malpractice case where the lack of the plaintiff’s consent to a surgical procedure was alleged, thereby remanding the case for further proceedings because a genuine issue of material fact prevents summary judgment on that issue. Moreover, the Mississippi Supreme Court said any analysis relating to the defendants’ alleged medical negligence is premature because the trial court had entered an order limiting the issue before it to the consent issue and did not accept expert testimony.
The Underlying Facts
The plaintiff began treatment for fertility issues with the defendant obstetrician/gynecologist, who had a subspeciality in infertility medicine, beginning in January 2011. The plaintiff had a history of ovarian cysts and pelvic pain, as well as a family history of ovarian, uterine, and cervical cancer. The defendant OBGYN recommended that the plaintiff undergo a laparoscopic procedure to remove her ovarian cysts as a way to resolve her fertility issues and to increase her chances of bringing about a viable pregnancy.
The plaintiff authorized the defendant OBGYN to perform a laparoscopy with ovarian cystectomy with possible salpingectomy, i.e., removal of ovarian cysts or cysts and possible removal of one of her fallopian tubes. The plaintiff executed a consent form prior to the surgery authorizing the procedure.
The consent form provided, in pertinent part: “I further consent and authorize the performance of such additional surgeries and procedures (whether or not presently unforseen conditions) considered necessary or emergent in the judgment of my doctor or those of the hospital’s medical staff who serve me.”
The plaintiff had the surgery on March 25, 2011 to remove ovarian cysts and, potentially, one fallopian tube. During the surgery, the defendant surgeon discovered that both of the plaintiff’s ovaries appeared abnormal to the extent that they seemed cancerous. The defendant surgeon consulted intraoperatively with his colleague, who was also named in the plaintiff’s Mississippi medical malpractice lawsuit as a defendant, who concluded that both ovaries lacked any appreciable amount of normal tissue and were highly suspicious for malignancy and recommended that it was in the plaintiff’s best interest to remove both ovaries. The defendant surgeon removed both of the plaintiff’s ovaries and a subsequent biopsy revealed that the plaintiff’s ovaries were not cancerous.
The plaintiff and her husband subsequently filed their pro se Mississippi medical malpractice lawsuit against the defendants, alleging that her ovaries were removed without consent and that the defendants were negligent in failing to obtain informed consent from the patient and/or her family to proceed with the bilateral salpingo-oophorectomy; failing to wait until a frozen section analysis of the biopsies was available; misdiagnosing the wife’s condition as malignant; removing the wife’s ovaries; and other matters to be proven at trial.
The wife claimed that as a direct and proximate result of the negligence of the defendants, she sustained the following damages: the complete inability to conceive her own child; mental and emotional distress; physical pain and suffering; medical expenses and other expenses incurred in travel to other medical facilities, implanting an egg from another female, and bearing a child of her husband’s, but not her biological child; and other matters sought to be proven at trial.
The defendants’ motion for summary judgment regarding the plaintiffs’ informed consent claim was granted by the trial court, which stated, in part: “[The trial court] finds that there is no genuine issue of material fact and that the defendants are entitled to judgment as a matter of law on the grounds that the removal of the plaintiff (wife’s) ovaries was consented to and authorized by [the wife] in the consent form which she signed which specifically granted to the operating physicians the authority to perform “such additional surgeries and procedures (whether or not arising from presently unforeseen conditions) considered necessary or emergent in the judgment of my doctor” … The [trial c]ourt’s ruling is not based upon expert opinion, and the [trial c]ourt specifically notes that this Order is not based upon plaintiffs’ failure to submit an expert affidavit in response to the [defendants’ affidavits.] Rather, the [trial c]ourt finds that the signed consent form at issue specifically included a provision which allowed the doctors to perform any procedure in their judgment necessary that arose during the surgery. There is no genuine issue of material fact that their judgment was that the procedure was necessary.”
The Mississippi Supreme Court Opinion
The Mississippi Supreme Court stated that the only issue before the trial court and the Mississippi Court of Appeals was whether the wife consented to the removal of her ovaries. At the present juncture, any analysis as to causation or elements of the wife’s claims that require expert testimony is premature and not properly before the Court: no discovery has occurred, and the trial court specifically had held all other issues, including issues as to causation, in abeyance. Moreover, the trial court had refused to accept any expert testimony and expressly stated in its order that it did not accept the defendants’ affidavits as expert affidavits.
In a prior Mississippi Supreme Court informed consent case, the Court had rejected the physician’s argument that a patient consented to a different procedure by signing a consent form containing virtually the identical language as the form in the present case. Moreover, it is unclear that the removal of the wife’s ovaries was necessary or emergent when she consented to a laparoscopy, cystectomy, and the possible removal of one fallopian tube: notably, the consent form was not dispositive even though it simply required that the additional or different procedures be considered necessary and desirable based on the subjective belief of the treating physician.
The Mississippi Supreme Court noted that the result of the surgery – removal of the wife’s ovaries – was “antithetical” to the purpose of the surgery – to determine the cause of her infertility.
Therefore, the Mississippi Supreme Court held that there is a genuine issue of material fact that prevents summary judgment on the lack of consent issue.
Source Dodd v. Hines, No. 2015-CT-00334-SCT
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