Jamison v. Kilgore
| Docket Number: | 2003-CT-00599-SCT Linked Case(s): 2003-CA-00599-COA ; 2003-CT-00599-SCT ; 2003-CA-00599-COA |
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| Supreme Court: | Opinion Link Opinion Date: 01-27-2005 Opinion Author: Dickinson, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Medical malpractice - Informed consent - Expert testimony - Known risk Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., and Randolph, J. Non Participating Judge(s): Diaz, Easley and Carlson, JJ. Concurs in Result Only: Graves, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 02-26-2003 Appealed from: Lowndes County Circuit Court Judge: James T. Kitchens, Jr. Disposition: Granted summary judgment to Dr. James Kilgore for claims brought by Eartha Jamison. Case Number: 1999-0057-CV1 |
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| Party Name: | Attorney Name: | |||
| Appellant: | EARTHA JAMISON |
WILLIAM L. BAMBACH |
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| Appellee: | DR. JAMES KILGORE d/b/a FOOT CLINIC OF COLUMBUS | JOHN G. WHEELER L. BRADLEY DILLARD |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Medical malpractice - Informed consent - Expert testimony - Known risk |
| Summary of the Facts: | Eartha Jamison filed a complaint against Dr. James Kilgore, claiming that Dr. Kilgore failed to obtain her informed consent prior to performing bunion removal. Dr. Kilgore moved for summary judgment, claiming Jamison’s failure to produce an expert witness was fatal to her claim. The court granted the motion. Jamison appealed, and the Court of Appeals affirmed. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | When a physician-patient relationship exists, the physician owes the patient a duty to inform and obtain consent with regard to the proposed treatment. Proving breach of duty requires more than mere allegation that the physician did not obtain informed consent. The plaintiff must show that a reasonable patient would have withheld consent had she been properly informed of the risks, alternatives, and so forth. The plaintiff must also show that the treatment was the proximate cause of the worsened condition, i.e., she would not have been injured had the appropriate standard of care been exercised. Both the trial court and the Court of Appeals focused on whether expert testimony was necessary to establish breach, proximate cause and injury. The resolution of this appeal turns – not on breach, proximate cause or injury – but rather on the need for expert testimony to establish the duty owed by a doctor to the patient. Where a plaintiff charges that a doctor performed a procedure without first obtaining informed consent, the plaintiff’s first task is to establish what are known risks of the procedure. This requires an expert opinion. An undesirable symptom or condition following a medical procedure may or may not be a known risk of the procedure. Jamison charges that Dr. Kilgore did not inform her of the known risk daily pain long beyond the four to six weeks predicted by Dr. Kilgore. In order to establish that such continuing pain is a known risk of the procedure, Jamison was required to produce expert testimony which she did not. If she had, she then could have proceeded to the question of whether Dr. Kilgore had a duty to disclose it. It is then that the question of materiality of the risk is addressed. If a known risk is found to be material, the question of causation must then be addressed. |
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