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JULIE ANN PHILLIPS, A MINOR, BY AND THROUGH HER MOTHER AND NEXT FRIEND, DEBRA ANN PHILLIPS, JIMMY L. PHILLIPS, ET AL v. CALVIN T. HULL

DECEMBER 17, 1986

JULIE ANN PHILLIPS, A MINOR, BY AND THROUGH HER MOTHER AND NEXT FRIEND, DEBRA ANN PHILLIPS, JIMMY L. PHILLIPS, ET AL
v.
CALVIN T. HULL, M.D.



ON PETITION FOR REHEARING

EN BANC:

PRATHER, JUSTICE, FOR THE COURT:

This medical malpractice case questions whether, in claims for alleged negligently performed surgical procedures and for failure to obtain informed consent, a plaintiff must submit affidavits of medical experts concerning a physician's standard of care to survive a motion for summary judgment.

 On March 15, 1983, plaintiffs/appellants, Debra Ann Phillips, her husband Jimmy L. Phillips and daughter Julie Ann Phillips filed suit against Dr. Calvin T. Hull, a gynecologist and obstetrician, and Health Group of Flowood, Mississippi Inc. (Woman's Hospital), alleging that both defendants were guilty of medical malpractice. After a year of discovery, plaintiff's counsel filed answers indicating that no expert witness had been found to testify for plaintiff. Thereafter, both defendants filed motions for summary judgment submitting affidavits of experts stating that both defendants had conformed to the appropriate standards of care in this case. Plaintiffs, in opposition to the summary judgment motion filed affidavits of Debra Ann Phillips, counsel for plaintiff, and medical records pertinent to the care of Debra Ann Phillips. The trial court thereafter granted a motion for summary judgment to defendant Hull and the hospital. Defendant/hospital is not involved in this

 appeal. Appellants/plaintiffs appeal alleging that: in a medical malpractice case, a non-moving party under a summary judgment motion need not present the affidavit of an expert witness concerning a physician's standard of care in order to survive such motion.

 I.

 Plaintiffs allege that on January 17, 1980, Debra Ann Phillips gave birth by caesarean section followed by a tubal ligation sexual sterilization operation performed by Calvin T. Hull, M.D. Debra Ann Phillips is diabetic and future pregnancies indicated high risk pregnancy. In interrogatories plaintiff admits she was told about a tubal ligation operation by Dr. Hull's nurse, but alleges that the ordinary procedure requires that Dr. Hull (1) tell her that the tubal ligation was not 100 percent effective and (2) advise her to continue contraceptive measures. Thereafter Debra Ann Phillips became pregnant and gave birth to minor plaintiff Julie Ann Phillips on August 30, 1981. Plaintiffs allege that Julie Ann is abnormal and has cerebral palsy. Adult plaintiffs seek damages for alleged tort liability in the sum of $1,500,000 for failure to properly perform a tubal ligation, failure to provide reasonable medical care during the sexual sterilization operation and pregnancy, failure to advise Debra Ann Phillips of her situation and alternative methods of treatment, and failure to secure the proper informed consent of Debra Ann Phillips for the treatment rendered.

 Additionally, the husband seeks damages of loss of consortium. The minor plaintiff Julie Ann alleges that Dr. Hull failed to properly perform the tubal ligation, failed to provide proper treatment during pregnancy and delivery, failed to advise her mother of alternative methods, and failed to secure the proper informed consent of her mother. Minor plaintiff sought damages for alleged tort liability and for breach of warranty in the sum of $3,500,000.

 Appellee, Dr. Hull, filed answers denying any negligence or failure to obtain "informed consent" . As an affirmative defense, Hull alleged he exercised the degree of skill, care and diligence required of him in his profession. Dr. Hull stated that he informed Phillips that the tubal ligation was not 100 percent effective and that there are occasional failures but that in such event he would take care of Mrs. Phillips free of charge. Dr. Hull claims that records of such consent are on record in the offices of Woman's Hospital, Inc. The patient, Hull claims, was never billed for prenatal care, hospital admissions, a caesarean section,

 hysterectomy or post-partal care. Defendant Hull also asserts that the records applicable to Julie Ann Phillips reveal no conclusive medical opinion as to her having cerebral palsy or that Julie Ann Phillips has any medical condition or abnormality resulting from the alleged acts or omission on the part of defendant doctor.

 II.

 The trial court granted summary judgment under M.R.C.P. 56 to the defendant for the failure of the plaintiffs to submit affidavits of medical experts supporting their allegations.

 Mississippi Rule of Civil Procedure 56, Summary Judgment provides:

 The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

 Rule 56 has been interpreted by this Court beginning with Brown v. Credit Center, Inc., 444 So. 2d 358 (Miss. 1983). See also Bourn v. Tomlinson Interests, Inc., 456 So. 2d 747 (Miss. 1984); Biggers v. Fox, 456 So. 2d 761 (Miss. 1984); Dennis v. Searle, 457 So. 2d 941 (Miss. 1984).

 In the instant case, the plaintiffs' complaint rests on two causes of action:

 (A) That the doctor was negligent in performing the procedures of delivery and sterilization care; and

 (B) That the doctor failed to secure the informed consent of the patient notifying her fully about tubal ligation prior to the operative procedure or the need for contraceptive devices thereafter.

 The two theories are considered separately.

 A.

 The first theory of alleged tort liability for medical malpractice is negligent treatment in delivery and in performance of the tubal ligation. To recover under a negligence action, a plaintiff has the burden of proof to show by a

 preponderance of the evidence that the defendant had a legal duty, that the legal duty was breached by the defendant to conform to the required standard of care, that the defendant's breach proximately caused an injury to the plaintiff, and that damages to plaintiff have resulted. Latham v. Hayes, 4 ...


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