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Dodd v. Hines

Supreme Court of Mississippi, En Banc

September 14, 2017

LACY DODD AND CHARLES DODD
v.
DR. RANDALL HINES, MISSISSIPPI REPRODUCTIVE MEDICINE, PLLC AND DR. PAUL SEAGO

          DATE OF JUDGMENT: 02/06/2015

         RANKIN COUNTY CIRCUIT COURT HON. WILLIAM E. CHAPMAN, III JUDGE

         ON WRIT OF CERTIORARI

          ATTORNEYS FOR APPELLANTS: SARAH LYNN DICKEY J. KEITH PEARSON

          ATTORNEYS FOR APPELLEES: MICHAEL F. MYERS

          COLEMAN, JUSTICE

         ¶1. 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.

         ¶2. 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.[1] 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.

         ¶3. 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).

         ¶4. 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.

         FACTS AND PROCEDURAL HISTORY

         ¶5. 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.

         ¶6. 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.

         ¶7. 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.

         ¶8. 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.

         ¶9. 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.

         ¶10. 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.[2] 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.

         ¶11. 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.

         ¶12. 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.

         ¶13. 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.

         ¶14. 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."

         ¶15. 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 ...


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