McMichael v. Howell
| Docket Number: | 2004-CA-01525-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 06-02-2005 Opinion Author: Smith, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Medical malpractice - Informed consent - Expert testimony Judge(s) Concurring: Waller and Cobb, P.JJ., Easley, Carlson and Dickinson, JJ. Non Participating Judge(s): Diaz and Randolph, 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: 06-29-2004 Appealed from: Lamar County Circuit Court Judge: R. I. Prichard, III Disposition: Granted summary judgment in favor of Appellee. Case Number: 2001-332 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Beth McMichael |
ORVIS A. SHIYOU |
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| Appellee: | Eli Howell, M.D. | MATTHEW D. MILLER, STEPHEN PAUL WILSON |
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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 |
| Summary of the Facts: | Beth McMichael brought an action alleging that Dr. Eli Howell failed to inform her of the risks involved with facial skin laser surgery, failed to perform the services agreed upon and as a result departed from the standard of care. The court granted summary judgment in favor of Dr. Howell because McMichael failed to present expert medical testimony in support of her claim. McMichael appeals. |
| Summary of Opinion Analysis: | McMichael argues that her claim does not require expert medical testimony because she has not claimed mere inadequacy of being informed of the risks associated with the procedure, but has claimed that no such warning of the risks were given at all. If there is a physician-patient relationship, the doctor automatically has the duty to inform and procure the consent of the patient as it relates to the proposed treatment. However, the individual claiming a breach of this duty must make more than mere allegations to substantiate that a breach has occurred. 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, and this requires an expert opinion. Dr. Howell asserts that he did warn McMichael of the risks involved with the full facial laser. In support of this assertion, Dr. Howell produced an authorization and consent form signed by McMichael. The fact that McMichael signed the statement on the consent form which contained the acknowledgment that she had been informed of the risks and complications negate her claim that Dr. Howell failed to inform her of any risks associated with the full facial laser. McMichael’s mere allegation to the contrary is insufficient rebuttal. McMichael also argues that the court erred in granting summary judgment as to the entire complaint because the court only addressed two of her three claims, medical negligence and informed consent. McMichael argues that her allegation that defendant failed to perform the services which he agreed to perform, i.e., he only performed a partial facial as opposed to a full facial, does not require expert medical testimony and was not addressed in the court’s opinion. This claim that Dr. Howell failed to perform the full facial, which was agreed upon, and whether he should not have performed any surgery at all is a claim for medical negligence and not a breach of contract claim as argued by McMichael. Because this is a medical malpractice claim, expert testimony is needed to establish that Dr. Howell failed to use ordinary skill and care. |
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