Withdrawn Consent Mid-Procedure: Mississippi Adopts the “Medical Feasibility” Expert-Testimony Requirement for Medical Battery

1. Introduction

This medical-malpractice appeal arose from an obstetrical delivery in which Shani M. Brown alleged that her obstetrician, Dr. Barbara Davey-Sullivan, performed an episiotomy after Brown verbally objected during labor. Brown framed the episode as a battery (an unconsented touching), contending she did not need medical expert testimony. Dr. Davey-Sullivan responded that the claims were, in substance, medical-negligence claims requiring expert proof—especially because Brown had signed a written consent form before the delivery.

The case presented two central issues: (1) whether Mississippi appellate jurisdiction existed despite a notice-of-appeal designation dispute (raised by dissent, not by appellees), and (2) whether a patient who withdraws consent in the midst of an ongoing procedure may proceed on a medical-battery theory without expert testimony.

2. Summary of the Opinion

The Mississippi Supreme Court affirmed summary judgment for Dr. Davey-Sullivan. On the informed-consent claim, the Court held expert testimony was plainly required and Brown produced none.

On the battery claim, the Court recognized that truly unconsented-to procedures can constitute battery without expert proof. But this was not a “no consent” case: Brown had given written consent pre-delivery and allegedly withdrew it at the moment of crowning. In that scenario, Mississippi adopted a rule drawn from other jurisdictions: it is not enough to show consent was revoked; the patient must also show it was medically feasible to stop or desist without endangering the patient (and here, the infant). Proof of medical feasibility is a medical question requiring expert testimony. Because Brown offered no expert evidence that an episiotomy could have been safely avoided, summary judgment was proper.

The Court also held that because expert testimony was required, Mississippi Code Section 11-1-58’s certificate-of-expert-consultation requirement applied, and Brown’s noncompliance provided an alternative basis supporting summary judgment.

3. Analysis

3.1. The New Rule / Precedent Established

Mississippi thus aligned itself with jurisdictions applying a “withdrawn-consent battery” framework that is narrower than a pure “no consent” battery theory and that protects clinicians from liability when immediate cessation could jeopardize patient safety.

3.2. Appellate Jurisdiction: Designating Interlocutory Orders After Final Judgment

Before reaching the merits, the majority rejected the dissent’s claim that the Court lacked jurisdiction because Brown’s notice of appeal did not explicitly designate the final May 15, 2024 dismissal order. The Court emphasized:

• Brown filed within the thirty-day deadline of Miss. R. App. P. 4(a) after the case became final, avoiding the classic jurisdictional defect identified in Pruett v. Malone.
• Under Miss. R. Civ. P. 54(b), interlocutory rulings (like the 2022 summary judgment on two of several claims) become reviewable after final judgment; the Court relied on Radco Fishing & Rental Tools, Inc. v. Com. Res., Inc. and Creel v. Bridgestone/Firestone N. Am. Tire, LLC for that merger principle.
• Miss. R. App. P. 3(c) permits partial designation of the “judgment or order appealed from,” and any defect here was treated as one of form, not a jurisdictional bar—particularly because Brown’s intent to appeal the summary judgment was evident and appellees were not misled.

To reinforce a practical approach, the Court cited federal authorities including Jones v. Chaney & James Constr. Co. and Chaka v. Lane, distinguishing the Fifth Circuit’s “premature notice of appeal” cases (e.g., United States v. Cooper, United States v. Taylor, Jetco Elec. Indus., Inc. v. Gardiner) from Brown’s situation, where the notice was filed after final judgment but designated earlier dispositive orders.

Practical takeaway: In Mississippi, a notice filed on time after final judgment may validly target specific earlier orders for review even if it does not also list the final order—at least where the appellant’s intent is clear and the appellee is not prejudiced.

3.3. Informed Consent: Expert Testimony as a Core Element

The Court treated Brown’s informed-consent claim as conventional malpractice—duty, breach, causation, damages—requiring expert testimony. It anchored this in:

• Dodd v. Hines (and its quotation of Cole v. Wiggins) for the proposition that expert medical testimony is needed to establish negligence in malpractice actions.
• Phillips ex rel. Phillips v. Hull (overruled on other grounds by Whittington v. Mason) for the framing of informed consent within negligence doctrine.

Because Brown produced no expert evidence during discovery, in opposition to summary judgment, or even after judgment when seeking reconsideration, the claim failed as a matter of law.

3.4. Battery in the Medical Setting: Mississippi Draws a Functional Line

The opinion is careful not to collapse all consent disputes into informed-consent negligence. It acknowledges the conceptual difference some jurisdictions draw between:

• “No consent at all” claims—often treated as classic battery where standard-of-care is irrelevant; and
• “Not fully informed” claims—treated as malpractice requiring expert testimony.

The Court referenced examples of that distinction in Humboldt Gen. Hosp. v. Sixth Jud. Dist. Ct. and Piedra v. Dugan, while noting Mississippi had not previously drawn such a “clear distinction,” referencing Dodd v. Hines (Miss. Ct. App. 2016) (affirmed).

But rather than adopt a broad battery route for any stated objection, the Court focused on the timing and clinical context: Brown signed written consent authorizing “vaginal delivery with possible laceration/episiotomy repairs,” and her complaint located the objection at the moment of crowning during a painful, medically induced labor. That framing implicated medical judgment—whether an episiotomy was medically necessary and whether stopping would risk harm.

3.5. Adoption of the Mims Framework (Withdrawn Consent Mid-Procedure)

The Court adopted the approach articulated in Mims v. Boland and reaffirmed in subsequent Georgia authority (King v. Dodge Cnty. Hosp. Auth.). It also noted multiple jurisdictions that have adopted or applied similar reasoning, including:

• Zaleskas v. Brigham & Women's Hosp.
• Levin v. United States
• Pallacovitch v. Waterbury Hosp.
• Yoder v. Cotton
• Coulter v. Thomas
• Hartman v. Le Corps

Under this framework, two ideas matter:

1. Autonomy persists: a patient can withdraw consent even after treatment begins (reflecting the “right of freedom from unwanted contacts”).
2. Safety constrains immediacy: continued contact is battery only if the physician could have desisted without endangering life or health; that feasibility is a medical question requiring medical evidence (i.e., expert testimony).

Applying that test, the Court held Brown could testify to her withdrawal of consent (“don’t cut me”) without expert help; but she could not, without expert evidence, establish that Dr. Davey-Sullivan could safely deliver the infant without the episiotomy at that moment.

3.6. The “Two-Patient” Obstetrics Context

A notable feature of the Court’s reasoning is its express recognition that the physician’s duties encompassed both mother and infant. Citing Weber v. Est. of Hill, the Court underscored that the feasibility of desisting must be assessed against potential harm to “the patients,” plural. This reinforces that obstetrical decision-making will rarely be judged solely from the mother’s immediate preference when emergent fetal risk is in play; the litigation burden includes addressing fetal safety with competent expert proof.

3.7. The Certificate of Expert Consultation (Miss. Code Ann. § 11-1-58)

Because the Court categorized both the informed-consent claim and the withdrawn-consent battery claim as requiring expert testimony, it concluded Section 11-1-58 applied. Brown’s failure to attach the required certificate provided an alternative basis supporting judgment for the defendants. The opinion thereby ties the pleading-stage statutory gatekeeping mechanism to the substantive expert-proof requirement: if the theory ultimately depends on medical feasibility/necessity, the statutory certificate requirement follows.

3.8. Precedents Cited: How They Shaped the Decision

• Johnson v. Pace: supplied the de novo summary-judgment standard and the requirement that a malpractice plaintiff produce evidence on essential elements when facing Rule 56.
• Dodd v. Hines and Cole v. Wiggins: grounded the general Mississippi rule that malpractice negligence requires expert testimony; the Court extended this logic to the “medical feasibility” element embedded in withdrawn-consent battery.
• Phillips ex rel. Phillips v. Hull (overruled on other grounds by Whittington v. Mason): supported classifying informed-consent claims within negligence doctrine.
• Fox v. Smith: illustrated Mississippi’s historical blending of “battery” and “informed consent” language, which the Court clarified does not eliminate true no-consent battery in principle but does not rescue Brown’s withdrawn-consent theory without expert proof.
• Mims v. Boland: provided the operative test adopted by Mississippi for mid-procedure consent withdrawal and the expert-testimony necessity.
• Weber v. Est. of Hill: reinforced the obstetrical reality that the infant’s interests are legally cognizable within malpractice analysis.
• Radco Fishing & Rental Tools, Inc. v. Com. Res., Inc. and Creel v. Bridgestone/Firestone N. Am. Tire, LLC: supported reviewability of interlocutory orders after final judgment.
• Pruett v. Malone, Ivy v. Gen. Motors Acceptance Corp., Tandy Elecs., Inc. v. Fletcher: framed the strictness of the thirty-day jurisdictional deadline, which the majority found satisfied.

3.9. Impact

The opinion will likely shape Mississippi medical tort litigation in four ways:

• Constraining “battery” end-runs around malpractice proof: Plaintiffs cannot avoid expert requirements by labeling a claim “battery” when the dispute turns on medical necessity or feasibility at a critical moment.
• Clarifying withdrawn-consent doctrine: Mississippi now has an articulated test for consent revoked mid-procedure, particularly important in emergency medicine and obstetrics.
• Elevating the role of expert testimony in autonomy disputes with safety implications: Even where patient refusal is clear, liability depends on whether immediate cessation was medically safe—an expert-driven inquiry.
• Strengthening Section 11-1-58’s reach: When the theory requires expert proof, failure to attach the certificate of expert consultation remains a potent early dispositive defense.

4. Complex Concepts Simplified

• Battery (medical context): an intentional, unpermitted touching. In medicine, that can mean performing a procedure without consent.
• Informed consent (negligence): not about whether the patient said “yes” or “no” in the abstract, but whether the physician breached a duty to disclose material risks/alternatives such that the patient’s consent was not meaningfully informed.
• Withdrawn consent mid-procedure: the patient may revoke consent during treatment, but whether the doctor must immediately stop depends on whether stopping is medically safe. That medical-safety question usually requires expert testimony.
• Summary judgment: a pretrial judgment entered when the nonmoving party lacks evidence on an essential element that would be required at trial.
• Rule 54(b) (finality): when multiple claims/parties exist, an order resolving fewer than all claims is interlocutory and typically not appealable until final judgment resolves the entire case.
• Section 11-1-58 certificate: a statutory requirement in Mississippi medical-malpractice cases intended to ensure an expert has been consulted before filing suit when expert testimony is necessary.

5. Conclusion

This decision establishes a consequential Mississippi rule for consent disputes in ongoing procedures: when consent is withdrawn mid-procedure, a plaintiff pursuing medical battery must prove—through medical expert testimony—that stopping was medically feasible without endangering the patient (and, in obstetrics, the infant). The Court simultaneously reaffirmed orthodox informed-consent doctrine as malpractice requiring expert proof and reinforced Section 11-1-58’s certificate requirement when expert testimony is necessary.

In effect, the opinion balances patient autonomy with clinical exigency: a verbal “stop” matters, but liability turns on whether immediate compliance was medically safe—an inquiry that must be supported by competent medical evidence.