Phillips v. Hull

516 So. 2d 488 (Miss. 1987)



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's failure 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.


Plaintiffs claimed that the doctor negligently performed the surgical procedure on the mother and failed to obtain her informed consent prior to the surgery. Subsequently the child was born with alleged injuries. The doctor sought summary judgment, which the trial court granted. On appeal, the court affirmed in part, reversed in part, and remanded for trial. The court found that summary judgment was proper on the first claim based on the negligent surgical procedure because negligence was not established without medical testimony that the doctor failed to use ordinary skill and care. Plaintiffs failed to provide any medical expert support for their allegations. The court reversed and remanded on the second claim that the doctor breached his duty to obtain informed consent.


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?




It appears in this case that on plaintiff's informed consent claim there exists a genuine issue of material fact which, on documents presented, renders the claim one improper for disposition via summary judgment. The affidavits of appellant Debra Phillips and appellee Dr. Hull are in direct contradiction and are matters not beyond the purview of a juror. "Matters which are within the common knowledge of laymen are exceptions to the rule that expert medical testimony is required." 

In conclusion, the trial court properly granted summary judgment to the defendant doctor on the tort liability claims of the mother, father, and child and his summary judgment should be affirmed in part. The breach of warranty claim of the child was properly dismissed. However, the wife and husband's claim of medical malpractice for lack of informed consent is reversed and remanded to the trial court for further proceedings not inconsistent with this opinion.

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