APPELLANTS' RESPONSE TO THE PETITION FOR WRIT OF CERTIORARI OF DR. RANDALL HINES AND MISSISSIPPI REPRODUCTIVE MEDICINE, PLLC

E-Filed Document Feb 28 2017 23:37:10 2015-CT-00334-SCT Pages: 8 CASE NO. 2015-CA-00334-COA IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI LACY DODD AND CHARLES DODD, APPELLANTS v. DR. RANDALL HINES; MISSISSIPPI REPRODUCTIVE MEDICINE, PLLC; AND DR. PAUL SEAGO, APPELLEES (On appeal from the Circuit Court of Rankin County, Mississippi, Civil Action No.: 2013-124-C) APPELLANTS' RESPONSE TO THE PETITION FOR WRIT OF CERTIORARI OF DR. RANDALL HINES AND MISSISSIPPI REPRODUCTIVE MEDICINE, PLLC J. KEITH PEARSON (MSB # 9753) SARAH L. DICKEY (MSB # 104354) The Pearson Law Firm, PLLC 428 North Lamar Blvd, Suite 108 Oxford, MS 38655 Telephone: 662-238-3339 Facsimile: 662-513-0073 Attorneys for LACY DODD AND CHARLES DODD

INTRODUCTION The Court of Appeals' opinion in this matter correctly recognizes the fundamental right of a competent adult to control his or her body and to make an informed decision as to whether to authorize a specific medical procedure, and further properly decided the matter at hand in accordance with this Court's established precedent. (Op. 13, 24-27)(citing Fox v. Smith, 594 So.2d 596, 604 (Miss. 1992)). However, by petitioning for certiorari review, Dr. Hines and Mississippi Reproductive Medicine, PLLC ( RM ) seek to have this Court dispense with decades of established precedent regarding the doctrine of informed consent in favor of the Appellees' novel argument that Mississippi physicians should be provided with completely unfettered discretion to perform any procedure subjectively deemed by the physician as being in the patient's best interests via a boilerplate clause in a surgical consent form. This case presents a prime example of the dangers of the Appellees' theory, as the physicians' erroneous belief that they were vested with such unfettered discretion in this matter resulted in the removal of a twenty-eight year old woman's reproductive organs without her knowledge or consent during a surgical procedure which was initially undertaken to aid her in conceiving her own biological child. It would not be hyperbolic to state that the Appellees' proposed theory of unfettered discretion for physicians would be such a radical departure from established precedent that the doctrine of informed consent would be dead in Mississippi. BACKGROUND Plaintiff Lacy Dodd began treating with Dr. Randall Hines at Mississippi Reproductive Medicine, PLLC in January of 2011 for fertility problems in an effort to bring about a viable 1

pregnancy. R. Vol. 2, p. 241. On March 25, 2011, Mrs. Dodd consented to Dr. Hines's performance of a laparoscopy with ovarian cystectomy and possible removal of one fallopian tube. 1 R. Vol. 2, p. 241. Lacy Dodd and Dr. Hines understood that Mrs. Dodd's intention in undergoing this surgery was to increase her chances for conception of a biological child with her husband, Charles Dodd. R. Vol. 2, p. 241. While Mrs. Dodd was unconscious and under anesthesia, Dr. Hines, after an intraoperative consultation with Dr. Seago, removed and discarded Ms. Dodd's ovaries by performing a bilateral salpingo-oopherectomy, instead of performing the authorized cystectomy. R. Vol. 2, p. 241; R. Vol. 1, p. 109-110. Mrs. Dodd never gave her informed consent for the removal of her ovaries, and the possible removal of Mrs. Dodd's ovaries was not disclosed to Mrs. Dodd prior to her consent to the cystectomy. R. Vol. 2, p. 241. Dr. Hines and Dr. Seago allege that Mrs. Dodd's ovaries were removed because they believed it to be in the best interest of her long-term health, as they believed Mrs. Dodd's ovaries to be cancerous. R. Vol. 1, p. 109. However, a biopsy, performed after Mrs. Dodd's ovaries had been removed and discarded without her consent, revealed that Mrs. Dodd's ovaries showed no evidence of malignancy. R. Vol. 1, p. 88. Whether or not Mrs. Dodd's ovaries had been determined to contain malignant tumors, however, Mrs. Dodd would not have authorized the removal of her ovaries without first exploring any and all available methods to preserve her ability to bear her own children, including embryo or oocyte cryopreservation. R. Vol. 2, p. 241-42. Mrs. Dodd, who was only 28 years old when 1 Dr. Seago's Petition for Writ of Certiorari, which Dr. Hines and RM joined, erroneously states that Mrs. Dodd's original surgery was to "excise cysts on her ovaries and to possibly remove her fallopian tubes." Dr. Seago's Petition for Writ of Certiorari, at p. 2. This is an incorrect recitation of the facts, as the potential removal of only one of Ms. Dodd's fallopian tubes was contemplated as part of the ovarian cystectomy to which Mrs. Dodd had originally consented. R. Vol. 2, p. 241. 2

her ovaries were removed, is now unable to give birth to her own genetic progeny, and the removal of Mrs. Dodd's ovaries at such a young age have further caused her to develop significant additional health complications. R. Vol. 2, p. 241-42. Mrs. Dodd and her husband brought suit against the defendants based upon the removal of Mrs. Dodd's ovaries without obtaining Mrs. Dodd's informed consent and for medical negligence based upon the misdiagnosis of Mrs. Dodd's condition and failing to wait until a frozen section analysis of the biopsy was available before removing Mrs. Dodd's ovaries, as well as removing Mrs. Dodd's non-cancerous ovaries, among other issues. R. Vol. 1, p. 17-20. Soon after the Dodds filed suit, the Appellees filed numerous dispositive motions before discovery could be conducted. Op. 20. Following a summary judgment hearing on the single, narrow legal issue of whether the general surgical consent form signed by plaintiff Lacy Dodd with regard to an ovarian cyst removal procedure constituted her informed consent for the removal of her ovaries. R. Vol. 2, p. 194-95; 248; and Op. 19. Following the summary judgment hearing, the circuit court erroneously found that the signed general surgical consent form precluded Plaintiffs claims against Defendants and granted summary judgment. The Court of Appeals reversed and remanded the circuit court s decision, finding that the consent form signed by Lacy did not summarily provide consent to remove her ovaries. Op. 27. ARGUMENT Under M.R.A.P. 17(a), successive review of a decision of the Court of Appeals by this Court is ordinarily limited to matters involving a "substantial question of law of general significance", such as the resolution of conflicts with prior Court of Appeals or Supreme Court decisions; cases in which controlling constitutional provisions have not been considered; or 3

cases involving fundamental issues of broad public importance. M.R.A.P. 17(a). Dr. Hines and RM s Petition for Writ of Certiorari fails to provide any ground which would warrant review by this Court of the Court of Appeals' decision in this matter, and their Petition must be denied. The Appellees first argue, without citation to any relevant authority, that the Court of Appeals decision in this matter interfered in the patient/physician relationship by rewriting the consent form leading to a result which the Appellees deem as absurd. Dr. Hines and RM s Petition for Writ of Certiorari, at p. 3-4. This argument, even if true, hardly constitutes grounds for review of the Court of Appeals decision. However, the Court of Appeals did not rewrite the consent form in question. Rather, the Court of Appeals simply held that, at this early stage of litigation and for purposes of summary judgment, the consent form signed by Mrs. Dodd authorizing her ovarian cystectomy did not summarily provide consent to remove her ovaries. Op. 27. Next, the Appellees argue that the Court of Appeals decision somehow shifted the burden of proof to Defendants. Dr. Hines and RM s Petition for Writ of Certiorari, at p. 4. The Appellees further argue, again without citing any relevant authority, that this alleged burden-shifting marks an astounding change in Mississippi law. Dr. Hines and RM s Petition for Writ of Certiorari, at p. 5. Appellees arguments, however, are utterly misguided. Again, it must be emphasized that the Court of Appeals was reviewing the narrow legal issue of whether, for purposes of summary judgment, the general surgical consent form signed by plaintiff Lacy Dodd with regard to an ovarian cyst removal procedure constituted consent for the removal of her ovaries. Op. 19. The Court of Appeals decision does not shift any burden of proof to the Defendants in reviewing this limited issue. Rather, the Court of 4

Appeals simply indicated that a determination of whether the removal of Mrs. Dodd s ovaries was necessary or emergent would require expert testimony and that any analysis of that issue would be premature at this time, as well as outside the scope of the narrow issue which was before the court at this early, pre-discovery stage of the litigation. Op. 20-21. Nowhere does the Court of Appeals decision in any way decree that doctors acting pursuant to authorization language... now bear the burden of proof, through expert testimony, that their actions fell within the scope of the agreed-to consent, as the Appellees hyperbolically allege. The Appellees contentions regarding burden-shifting are wholly inaccurate, and certiorari review must not be granted on this basis. The Appellees further argue that the Court of Appeals erred in failing to provide any examination as to causation in its decision. Dr. Hines and RM s Petition for Writ of Certiorari, at p. 7. It must be emphasized that the Court of Appeals acted properly in not making any determinations regarding causation in this matter, as causation issues are, again, outside the scope of the narrow issue on appeal. Op. 19. The circuit court in this matter expressly held in abeyance all arguments relating to causation, and limited the summary judgment hearing in this matter to the single issue of whether Mrs. Dodd s signed general surgical consent form was dispositive of whether she consented to the removal of her ovaries. See R. Vol. 2, at 157 and 194; and Op. 19. There is simply no basis for the Appellees continued arguments that summary judgment should have been granted due to Plaintiffs failure to offer expert testimony as to the causation element of their claims, and this meritless argument certainly presents no basis for certiorari review of the Court of Appeals decision. Finally, Dr. Hines and RM further argue that the people of Mississippi are not wellserved by the Court of Appeals decision in this matter. Dr. Hines and RM s Petition for Writ 5

of Certiorari, at p. 8. As discussed in Appellants Response to Dr. Seago s Petition for Writ of Certiorari, the Appellees have argued that the Court of Appeals engaged in an improper public policy determination in their decision in this matter, yet the Appellees also ask this Court to overturn decades of Mississippi precedent regarding the doctrine of informed consent in order to make a public policy determination in favor of the Appellees. The Appellees hyperbolic and unsupported public policy arguments do not provide grounds for certiorari review of the Court of Appeals decision in this matter. CONCLUSION The Court of Appeals' decision in this matter contains no errors of fact or law or "substantial question of law of general significance" which would warrant certiorari review by this Court. Appellants therefore respectfully request that Dr. Hines and RM's Petition for Writ of Certiorari be denied. Appellants further request any additional relief to which they may be entitled. This, the 28th day of February, 2017. Respectfully submitted, LACY DODD AND CHARLES DODD BY: _/s/ _Sarah L. Dickey OF COUNSEL J. KEITH PEARSON (MSB # 9753) SARAH L. DICKEY (MSB #104354) The Pearson Law Firm, PLLC 428 North Lamar Blvd, Suite 108 Oxford, MS 38655 Telephone: 662-238-3339 Facsimile: 662-513-0073 Attorney for LACY DODD AND CHARLES DODD 6

CERTIFICATE OF SERVICE I do hereby certify that I have this day served via electronic means, a true and correct copy of the above and foregoing Response to Dr. Hines and Mississippi Reproductive Medicine, PLLC's Petition for Writ of Certiorari upon the following: John B. Howell, Esq. Walter T. Johnson, Esq. Watkins & Eager, PLLC P.O. Box 650 Jackson, MS 39205 jhowell@watkinseager.com wjohnson@watkinseager.com Whitman B. Johnson, III, Esq. Michael F. Myers, Esq. Ben C. Lewis, Esq. Currie Johnson Griffin & Myers, P.A. P.O. Box 750 Jackson, MS 39205-0750 wjohnson@curriejohnson.com mmeyers@curriejohnson.com blewis@curriejohnson.com and a copy has been forwarded via U.S. mail, postage prepaid to the following: Hon. William E. Chapman Rankin County Circuit Judge P.O. Box 1626 Canton, MS 39046 This, the 28th day of February, 2017. _/s/ Sarah L. Dickey Sarah L. Dickey 7