OF JUDGMENT: 02/06/2015
COUNTY CIRCUIT COURT HON. WILLIAM E. CHAPMAN, III JUDGE
ATTORNEYS FOR APPELLANTS: SARAH LYNN DICKEY J. KEITH PEARSON
ATTORNEYS FOR APPELLEES: MICHAEL F. MYERS
On March 25, 2011, in an effort to increase chances of
conception, Lacy Dodd underwent surgery to remove ovarian
cysts and, potentially, one fallopian tube. During the
surgery, Lacy's physician, Dr. Randall Hines, discovered
that both of Lacy's ovaries appeared abnormal to the
extent that they seemed cancerous. Dr. Hines consulted,
intraoperatively, with his colleague, Dr. Paul Seago. Dr.
Seago concluded that both ovaries lacked any appreciable
amount of normal tissue and were highly suspicious for
malignancy; he recommended that it was in Lacy's best
interest to remove both ovaries. Dr. Hines agreed and removed
both ovaries. A biopsy later revealed that Lacy's ovaries
were not cancerous.
On May 17, 2013, Lacy and her husband, Charles Dodd, filed a
pro se complaint against Dr. Hines, Dr. Seago, and
Mississippi Reproductive Medicine, PLLC (collectively
"the defendants"), claiming that her ovaries were
removed without consent. Lacy also alleged 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
Lacy's condition as malignant; removing Lacy's
ovaries; and other matters to be proven at trial.
Prior to discovery, the defendants moved for summary
judgment. The trial court entered an order limiting the issue
to be argued to consent. The trial court found that Lacy had
consented to the removal of her ovaries based on a consent
form executed by Lacy prior to the surgery and granted
summary judgment in favor of the defendants. Despite the sole
issue of consent before the trial court, it entered a final
judgment with respect to all of Lacy's claims alleged in
her complaint. On appeal, the Court of Appeals determined
that Lacy's claim was "battery-based" and held
that Lacy did not give express consent for the removal of her
ovaries and the consent form did not summarily provide
consent to remove her ovaries. Dodd v. Hines, No.
2015- CA-00334-COA, 2016 WL 4615034, at **5-6 (¶¶
24, 27-28) (Miss. Ct. App. Sep. 6, 2016).
We agree with the result reached by the Court of Appeals.
Rather than reaching a definitive conclusion on the issue of
consent, we hold that there is a genuine issue of material
fact precluding summary judgment as to whether Lacy consented
to the removal of her ovaries in accordance with the
Court's decisions in Cole v. Wiggins, 487 So.2d
203 (Miss. 1986), and Fox v. Smith, 594 So.2d 596
(Miss. 1992). As more fully explained below, we reverse the
trial court's judgment and remand for further proceedings
for reasons different than those of the Court of Appeals.
AND PROCEDURAL HISTORY
In January 2011, Lacy began treatment for fertility issues
with Dr. Hines, a physician practicing in the field of
obstetrics and gynecology with a subspeciality in infertility
medicine. Lacy had a history of ovarian cysts and pelvic
pain, as well as a family history of ovarian, uterine, and
cervical cancer. Dr. Hines recommended Lacy undergo a
laparoscopic procedure to remove her ovarian cysts as a way
to resolve her fertility issues and increase her chances of
bringing about a viable pregnancy.
Lacy authorized Dr. Hines 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. Lacy executed a consent form prior to the
surgery authorizing the procedure. The consent form also
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.
During the laparosocpy, Dr. Hines discovered that Lacy's
ovaries were extremely abnormal to the extent that they
appeared cancerous. Considering Lacy's family history of
ovarian cancer, Dr. Hines consulted intraoperatively with Dr.
Seago, a physician in the field of gynecology and obstetrics
with a subspeciality in gynecological oncology. Dr. Seago
examined Lacy's ovaries and found that both ovaries
lacked any appreciable amount of normal ovarian tissue and
were highly suspicious for malignancy. Dr. Seago believed the
removal of both ovaries to be necessary for her long term
health and in her best interest and recommended removing both
ovaries. Dr. Hines agreed and removed both ovaries.
After Lacy awoke from surgery, she learned that Dr. Hines had
removed both of her ovaries. Lacy's caregivers sent both
ovaries to a pathology lab, and a pathologist determined that
her ovaries were not cancerous; rather, she had suffered from
"serous cystadenofibroma, " a condition where a
benign tumor appears cancerous.
On May 17, 2013, Lacy and Charles Dodd filed a complaint
against Dr. Hines, Dr. Seago, and Reproductive Medicine,
alleging that the ovaries were removed without consent and
that the defendants were negligent in failing to obtain her
informed consent to proceed with the removal of her ovaries,
failing to wait until a biopsy could be completed,
misdiagnosing her condition, and removing her ovaries. Lacy
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, 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.
Before discovery commenced, Dr. Hines and Reproductive
Medicine filed a motion for summary judgment on December 23,
2013. Dr. Hines and Reproductive Medicine mentioned the
consent form in their motion but argued that they were
entitled to judgment as a matter of law based on the lack of
causation and the statute of limitations. Dr. Hines's
affidavit attached to the motion stated that the likelihood
Lacy would ever have had a child from one of her own eggs was
practically nonexistent given the near total absence of
recognizable ovarian tissue. Dr. Hines stated that neither
ovary had sufficiently normal ovarian tissue to have
permitted her ever to bear a child from one of her own eggs.
Dr. Hines and Dr. Seago ruled out a biopsy during the surgery
because of their strong belief of the presence of ovarian
cancer, and obtaining a biopsy potentially could have spread
the presumed cancer throughout the pelvis and abdomen. Dr.
Hines and Dr. Seago both agreed that they believed it was
"medically necessary" and in Lacy's "best
interests" to remove both ovaries.
On February 3, 2014, counsel entered an appearance on
Lacy's behalf. On April 17, 2014, Lacy filed a motion to
hold Dr. Hines's and Reproductive Medicine's motion
for summary judgment in abeyance pending discovery.
Lacy's counsel explained that Lacy had proceeded pro
se until she had retained counsel in late January 2014.
Lacy's counsel also explained that the law firm that
represented Lacy prior to her filing a complaint had
consulted an expert prior to filing suit who believed there
was a reasonable basis to initiate a cause of action.
Lacy's counsel stated that a determination had not been
made whether to use the consulting expert or to retain a new
expert or whether the consulting expert would be willing to
serve as a testifying expert in the case.
On April 25, 2014, Dr. Hines and Reproductive Medicine filed
a rebuttal memorandum in support of their motion for summary
judgment. Dr. Hines and Reproductive Medicine argued that
Lacy's failure to submit sworn expert testimony to
support her allegations of negligence and causation warranted
the entry of summary judgment.
On May 5, 2014, the trial court entered an agreed order
continuing the hearing on the motion for summary judgment as
well as Lacy's motion to hold the motion for summary
judgment in abeyance. On May 22, 2014, the trial court
entered another agreed order continuing the hearings. The
order provided that the parties had agreed that the motions
"save for the causation part" of Dr. Hines's
and Reproductive Medicine's motion for summary judgment
would be heard on September 15, 2014. The September 15
hearing did not occur.
On October 1, 2014, the trial court entered an order holding
"[a]ll matters with regard to" Dr. Hines's and
Reproductive Medicine's motion for summary judgment
"in abeyance except regarding the consent issue."
The trial court instructed Dr. Hines and Reproductive
Medicine to file either a supplement to their motion or a
separate motion for summary judgment "specifically
addressing the consent issue, which will then be set for
hearing." The trial court ordered Lacy's motion for
additional time to respond to Dr. Hines's and
Reproductive Medicine's pending motion for summary
judgment to be held in abeyance, while reserving that Lacy be
allowed to respond to the supplemental motion on the consent
issue. The trial court instructed the parties "to obtain
a hearing date on the supplemental motion for summary
judgment on the consent issue once it is filed."
On October 16, 2014, Dr. Hines and Reproductive Medicine
filed a supplemental motion for summary judgment arguing that
Lacy gave her consent for Dr. Hines to perform any surgery or
additional procedure that was considered necessary based on
the consent form. Alternatively, Dr. Hines and Reproductive
Medicine argued that Lacy was unable to meet the requirements
of causation. Specifically, Dr. Hines and Reproductive
Medicine argued that Lacy "cannot show that a reasonable
patient would have withheld consent had she been informed of
the risks of not removing the ovaries, which is required for
her to make out a claim for informed consent." On
October 16, 2014, Dr. Seago filed a joinder in Dr.
Hines's and Reproductive Medicine's supplemental
motion for ...