## Facts

- Debra Ann Phillips, a diabetic whose future pregnancies posed heightened risk, delivered by caesarean section on January 17, 1980.
- During the same hospitalization, Dr. Calvin T. Hull performed a tubal ligation intended as sterilization.
- Debra later became pregnant and gave birth to Julie Ann Phillips on August 30, 1981.
- The family alleged Julie Ann was abnormal and had cerebral palsy and sought damages for:
  - negligent performance of the tubal ligation and failure to meet the applicable standard of care, and
  - failure to obtain informed consent, including failure to disclose that tubal ligation is not completely effective and that contraception should continue.
- In discovery, plaintiffs indicated they had not found an expert witness to testify as to medical negligence standards.
- Dr. Hull supported summary judgment with expert affidavits opining that he met the applicable standard of care; plaintiffs opposed with lay affidavits and medical records.

## Issues

1. Whether a plaintiff alleging negligent performance of a surgical procedure must produce expert medical testimony on the standard of care and breach to survive a physician’s motion for summary judgment.
2. Whether an informed-consent claim concerning disclosure of procedure effectiveness and need for continued contraception can survive summary judgment without expert testimony when the parties dispute what was communicated.

## Decision

- Summary judgment for Dr. Hull was affirmed on the negligent-performance/standard-of-care malpractice claim.
- Summary judgment was reversed on the informed-consent claim.
- The case was remanded for trial on informed consent because a genuine dispute of material fact existed regarding the content and source of disclosures to the patient.

## Legal Principles

- In Mississippi medical-malpractice claims alleging breach of professional standard of care, expert medical testimony is generally required to establish the standard and breach, unless the asserted negligence is within common lay knowledge.
- When a defendant supports summary judgment with competent expert affidavits on compliance with the standard of care, the plaintiff must respond with evidence sufficient to show a genuine dispute; lay assertions and medical records alone ordinarily do not create a triable issue on technical negligence.
- Informed consent is analytically distinct from technical negligence; where the dispute centers on what information was disclosed to the patient and whether consent was adequately informed, the factfinder may resolve the issue without expert testimony if it turns on lay-understandable communications.
- Summary judgment is inappropriate where the nonmovant’s evidence creates a genuine dispute over material facts concerning physician-patient disclosures bearing on consent.

## Conclusion

The court held that the plaintiffs could not proceed on a claim that the tubal ligation was negligently performed without expert proof of the applicable medical standard of care, but could proceed to trial on informed consent because conflicting evidence about what warnings were given created a triable factual dispute.


Phillips by & Through Phillips v. Hull, 516 So. 2d 488 (Miss. 1987)