Shani M. Brown v. Dr. Barbara Davey-Sullivan and The Woman's Clinic of Mississippi, PLLC

Opinion

IN THE SUPREME COURT OF MISSISSIPPI NO. 2024-CA-00693-SCT

SHANI M. BROWN v.

DR. BARBARA DAVEY-SULLIVAN AND THE WOMAN’S CLINIC OF MISSISSIPPI, PLLC

DATE OF JUDGMENT: 05/15/2024 TRIAL JUDGE: HON. ELEANOR JOHNSON PETERSON TRIAL COURT ATTORNEYS: JACQUELINE KAYE HAMMACK D. COLLIER GRAHAM, JR.

MALLORY MILLER STREET

SIDNEY ELAINE LAMPTON

STEPHEN P. KRUGER

HANNAH KATHERINE HERRIN

MILDRED M. MORRIS

TIMOTHY LEE SENSING

JOSEPH GEORGE BALADI

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: DANIEL M. WAIDE ATTORNEYS FOR APPELLEES: STEPHEN P. KRUGER T.L. “SMITH” BOYKIN, III

NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE DISPOSITION: AFFIRMED - 08/06/2026 MOTION FOR REHEARING FILED:

EN BANC.

GRIFFIS, JUSTICE, FOR THE COURT:

¶1. Shani Brown sued her obstetrician, Dr. Barbara Davey-Sullivan, for performing an episiotomy during the delivery of Brown’s third child. But when faced with Dr. Davey- Sullivan’s motion for summary judgment, Brown failed to produce the required expert testimony to establish a triable medical-negligence claim. In Brown’s view, she did not need

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an expert. That is because she suggests she brought a battery claim, not a medical-negligence claim. But Brown’s own sworn allegations say otherwise.

¶2. The record shows, prior to delivery, Brown gave written consent to an episiotomy. But according to Brown’s complaint, during her painful, medically induced labor, Brown begged her doctor not to cut her as her child’s head was crowning. Dr. Davey-Sullivan believed an episiotomy was medically necessary and performed the procedure. Brown says she suffered a battery because the procedure was both against her consent and was not medically necessary.

¶3. We recognize an un-consented-to medical procedure may constitute a battery for which no medical expert testimony is needed. But this is not a case in which no consent was given. Instead, Brown gave consent prior to delivery and then withdrew consent during labor. In such cases, it is not enough to establish that consent was revoked. The patient also has to show that stopping the unwanted procedure was medically feasible without causing harm to the patient—or in this case, the patients, as Dr. Davey-Sullivan also had to consider the infant’s health and safety. And proof that a doctor could have stopped a medical procedure without causing harm requires medical expert testimony.

¶4. While Brown did not need an expert to establish her claim that she withdrew consent when she yelled, “don’t cut me,” Brown did need an expert to establish Dr. Davey-Sullivan could have safely delivered the child without performing an episiotomy. Because Brown produced no medical expert testimony to show that the episiotomy was not medically

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necessary, the trial court properly granted summary judgment in Dr. Davey-Sullivan’s favor. We affirm.

Background Fact & Procedural History I. Brown’s Sworn Complaint

¶5. Brown’s third pregnancy was difficult. In her sworn complaint, she admits the pregnancy “was complicated by fetal umbilical vein varix, gestational diabetes, and hypothyroidism, such that an early term delivery was warranted.” So at thirty-seven weeks’ gestation, labor was medically induced. Before the induced labor, Brown signed a consent form. She authorized Dr. Davey-Sullivan to perform “vaginal delivery with possible laceration/episiotomy repairs” and “possible cesarean section.” An episiotomy is a “surgical incision of the perineum to enlarge the vaginal opening for obstetrical purposes during the birth process.”1

¶6. According to her complaint, delivery “proceeded rapidly”—“so rapidly that [Brown] was unable to obtain adequate pain relief from the epidural anesthetic.” “As the infant was crowning, Dr. Davey-Sullivan indicated that she was going to perform an episiotomy.” “Brown said ‘no’ and pleaded ‘please don’t cut me’ but Dr. Davey-Sullivan performed the episiotomy with neither consent nor explanation of any medical necessity.”

¶7. Brown alleges the episiotomy has led to issues with her perineum and pelvic floor,

1 Episiotomy, Merriam-Webster, https://www.merriam-webster.com/dictionary/ episiotomy (last visited July 12, 2026).

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including the need for reconstructive surgery.

¶8. In 2019, Brown sued Dr. Davey-Sullivan and Dr. Davey-Sullivan’s medical group, The Woman’s Clinic of Mississippi, PLLC (collectively, Dr. Davey-Sullivan). She also named as defendants the University of Mississippi Medical Center School of Nursing (UMMC Nursing) and Mississippi Baptist Medical Center (Baptist), the hospital where the delivery occurred.2 Two of her claims were lodged solely against Dr. Davey-Sullivan based on the episiotomy—a claim for lack of informed consent and a claim for battery. She brought a third claim of invasion of privacy/intrusion upon seclusion against all the defendants. This claim centered on the presence of UMMC Nursing students during delivery. Finally, Brown brought two more claims, neither of which involved Dr. Davey- Sullivan. Instead, she aimed those two claims—infliction of emotional distress and negligent supervision—at UMMC Nursing and Baptist.

¶9. Brown’s case never went to trial. Instead, the trial court disposed of her claims in a series of orders until no claims or defendants were left.

II. Voluntary-Dismissal Order

¶10. In 2021, the trial court entered its first dispositive order—a voluntary order dismissing all claims against UMMC Nursing.

2 In her original and first amended complaints, Brown failed to correctly identify Baptist but instead named the wrong entities. Those entities were dismissed with prejudice. And the trial judge permitted Brown to file a second amended complaint properly naming Baptist as codefendant.

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III. Summary-Judgment Order

¶11. The following year, the trial court entered its second dispositive order—a summary judgment granted in Dr. Davey-Sullivan’s favor on the two episiotomy-related claims. It is this order—and the trial court’s later denial of reconsideration—that Brown challenges.

¶12. In early 2022, Dr. Davey-Sullivan filed a motion for summary judgment on Brown’s lack-of-informed-consent and battery claims. Dr. Davey-Sullivan argued both claims were medical-negligence claims. So they must be established by expert testimony. The trial court agreed. The trial judge found both claims failed as a matter of law because Brown produced no expert testimony. Alternatively, the judge found the two claims failed for two other reasons: (1) because Brown had signed a form expressly consenting to the procedure, and (2) because Brown had not attached to her complaint a certificate of expert consultation as mandated by Mississippi Code Section 11-1-58 (Rev. 2019). The trial court granted Dr. Davey-Sullivan’s motion without a hearing.

¶13. Brown’s intrusion-upon-seclusion claim against Dr. Davey-Sullivan and Baptist was still pending. So were Brown’s other claims against Baptist. Because of these lingering claims, the summary judgment granted in Dr. Davey-Sullivan’s favor was not yet a final appealable order when entered. See M.R.C.P. 54(b) (specifying that an order “adjudicat[ing] fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties”).

¶14. At this point, Brown—who had been representing herself—retained counsel. And her

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new lawyer asked the court to vacate, set aside, and/or reconsider the summary-judgment order. See id. (providing that a nonfinal order under Rule 54(b) “is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties”). In her motion, Brown insisted that no expert was required because she based her claim on lack of consent. The trial court denied Brown’s motion.

IV. Stipulated Partial Dismissal of Baptist

¶15. Six months later, Baptist filed a motion to dismiss, prompting a third dispositive order. Brown stipulated to dismissing with prejudice all her claims against Baptist except for the intrusion claim.

V. Final Dismissal Order

¶16. Finally, a year later, in 2024, the trial court entered its fourth and final dispositive order. This order dismissed the intrusion-upon-seclusion claim against Baptist and, by implication, Dr. Davey-Sullivan. The dismissal order ruled that “there are no remaining claims against any other party.” The order explicitly provided that “final judgment is ordered and adjudged as to all claims and all parties . . . .”

¶17. This meant that, upon entry of this final order, the previously interlocutory order granting summary judgment to Dr. Davey-Sullivan on Brown’s lack-of-informed-consent and battery claims became final and appealable. Miss. R. Civ. P. 54(b).

¶18. Brown timely appealed. Specifically, she challenges the grant of summary judgment on her lack-of-informed-consent claim and her battery claim, as well as the trial court’s

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denial of her motion to vacate the grant of summary judgment on those claims.

Discussion

I. This Court’s Appellate Jurisdiction

¶19. Before we consider the merits of Brown’s appeal, we first address the dissent’s accusation that this Court lacks appellate jurisdiction. According to the dissent, because Brown did not specifically designate in her notice of appeal the fourth and final dispositive order—the one in which the trial court asserted no claims remained and ordered final judgment—she has failed to appeal a final judgment.

¶20. We disagree. This Court clearly does have jurisdiction over Brown’s appeal, which she timely filed as soon as the summary-judgment order became final.

¶21. The “hard-edged, mandatory” jurisdictional rule the dissent mentions is Rule 4(a)’s thirty-day time limit. Pruett v. Malone, 767 So. 2d 983, 985 (Miss. 2000) (internal quotation marks omitted) (quoting Ivy v. Gen. Motors Acceptance Corp., 612 So. 2d 1108, 1116 (Miss. 1992)); see also id. (“Appeals not perfected within 30 days will be dismissed, period.” (citing Tandy Elecs., Inc. v. Fletcher, 554 So. 2d 308, 310-11 (Miss. 1989))); Miss. R. App. P. 2(a)(1) (“An appeal shall be dismissed if the notice of appeal was not timely filed pursuant to Rules 4 or 5.” (emphasis added)); Miss. R. App. 2(c) (permitting this Court to “suspend the requirements or provisions of any of these rules”—except the thirty-day time limit to file a civil appeal). But Rule 4 and its time limit is not a problem here. Instead, Brown filed her appeal within thirty days of the summary-judgment grant becoming final.

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¶22. In fact, Brown did what many other would-be appellants have failed to do in the past—she properly waited until the summary-judgment order disposing of her informed- consent and medical-battery claims against Dr. Davey-Sullivan became final before she appealed that decision. But see, e.g., Williams v. Delta Reg’l Med. Ctr., 740 So. 2d 284, 285 (Miss. 1999) (dismissing appeal of summary-judgment grant to only one of multiple defendants because the action was still pending in trial court); Mitchell v. Blackmon, 760 So. 2d 691, 694 (Miss. 2000) (same). Brown recognized that, under Mississippi Civil Procedure Rule 54(b), the trial court’s 2022 summary-judgment grant was interlocutory at the time it was entered because it disposed of fewer than all her claims against all defendants. Miss. R. Civ. P. 54(b). This is why, a month after entry, Brown asked the trial court to vacate the order, which the trial court denied.

¶23. But once the circuit court entered a final judgment in 2024, all dispositive rulings—which in this case were meted out in a series of orders, knocking out claims and defendants one or two at a time—became final and thus ripe for appeal. Miss. R. Civ. P. 54(b); see also Radco Fishing & Rental Tools, Inc. v. Com. Res., Inc., 407 So. 3d 167, 178 (Miss. 2025) (“Issues in an interlocutory order may be reviewed on direct appeal after a final judgment.” (citing Creel v. Bridgestone/Firestone N. Am. Tire, LLC, 950 So. 2d 1024, 1027 (Miss. 2007))); Auto. Alignment & Body Serv., Inc. v. State Farm Mut. Auto. Ins. Co., 953 F.3d 707, 717 (11th Cir. 2020) (explaining all interlocutory orders merge into the final judgment and thus also become final and appealable); Farbwerke Hoeschst A.G. v. M/V

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“Don Nicky”, 589 F.2d 795, 797 (5th Cir. 1979) (“[A]n appellant does not compromise [her] rights to review interlocutory orders by waiting for a final judgment.” (citing Caradelis v. Refineria Panama, S.A., 384 F.2d 589 (5th Cir. 1967); Gloria S.S. Co. v. Smith, 376 F.2d 46 (5th Cir. 1967))). So Brown timely appealed the rulings that she wanted this Court to review.

¶24. The dissent finds fault with Brown not designating as one of those rulings the last chronological dispositive order, which the trial court made clear was the final judgment. But Mississippi Rule of Appellate Procedure 3(c) allows for partial designation of the judgment being appealed. Curiously, the dissent acknowledges that, had Brown only designated the trial court’s fourth and final dispositive order, disposing of all remaining claims, then this Court could have also reviewed the other orders disposing of the claims not covered by the “final judgment.” But according to the dissent, “[i]t does not . . . work the other way around[.]” Diss. Op. ¶ 56.

¶25. We fail to see why not—especially in a case like this one, in which it is obvious that Brown waited to appeal until the summary-judgment order became final by operation of the disposal of her remaining claims.

¶26. We find precedent from the United States Court of Appeals for the Fifth Circuit on this issue instructive. Decades ago, that appellate court was faced with the same situation we have here—a notice of appeal, filed after the entry of final judgment, that did not designate the final judgment but instead designated rulings made leading up to the final

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judgment. Jones v. Chaney & James Constr. Co., 399 F.2d 84, 86 (5th Cir. 1968). The Fifth Circuit refused to dismiss the appeal. Id. Applying the principles that “[t]he notice of appeal . . . should not be used as a ‘trap for the unwary draftsman,’” the Fifth Circuit held any defect in failing to designate the final judgment was not fatal and did not mislead the appellees. Id. (quoting Wright, Federal Courts § 104 (1963)). Instead, the appellant’s intent to appeal the trial court’s final judgment was clear. Id.

¶27. The dissent insists Jones is no longer good law. We disagree. The cases the dissent cites do not even mention Jones, let alone abandon its practical approach. United States v. Cooper, 135 F.3d 960, 961-63 (5th Cir. 1998); United States v. Taylor, 632 F.2d 530, 531 (5th Cir. 1980); Jetco Elec. Indus., Inc. v. Gardiner, 473 F.2d 1228, 1231 (5th Cir. 1973), abrogated by Cooper, 135 F.3d 960 (5th Cir. 1998). Instead, those cases addressed an entirely different issue, the premature filing of a notice of appeal—i.e., the appeal of an interlocutory ruling filed before the case was final. Cooper, 135 F.3d at 961 (“The question we must address, then, is whether we may exercise jurisdiction over this prematurely-filed appeal.”); Taylor, 632 F.2d at 531 (“Nor does that final judgment retroactively validate the premature notice of appeal.”); Gardiner, 473 F.2d at 1231 (“The instant appeal was taken from that order. Several months later, the trial court entered an agreed judgment disposing of appellants’ claims against the other two defendants . . . .”). Again, that is not what we are dealing with here. We are not having to decide whether the entry of a final judgment after the filing of a notice of appeal cures the premature filing. So the fact the Fifth Circuit

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accepted a premature filing in Gardiner but later reversed course in Cooper and Taylor is of no moment here.3

¶28. Just as in Jones, the timing of Brown’s appeal is not at issue. Instead, the concern is the content of her notice of appeal. And we see no problem with Brown’s choosing to designate the summary-judgment order dismissing her informed-consent and medical-battery claim but not the final judgment dismissing the un-appealed intrusion-upon-seclusion claim. That said, any defect in Brown’s notice of appeal is one of form and not substance—and it certainly is not jurisdictional.

¶29. Furthermore, the Fifth Circuit is not the only federal appellate circuit to consider an appeal that only designated the interlocutory order but not the later order that declared the interlocutory order final. In Chaka v. Lane, 894 F.2d 923, 925 (7th Cir. 1990), the United States Court of Appeals for the Seventh Circuit concluded that “naming an interlocutory order as the thing appealed” was actually helpful because it “increase[d] the information available to the court and the adverse parties.” Id. “Instead of having to prepare for an attack on every decision taken in the case, the appellees may concentrate on the single order

3 Neither at play here is the question presented in FirsTier Mortgage Co. v. Investors Mortgage Insurance Co.—namely, the application of Federal Rule of Appellate Procedure 4(a)(2), an analog to Mississippi Rule of Appellate Procedure 4(b), which addresses when “a ‘notice of appeal [is] filed after the court announces a decision or order but before the entry of the judgment or order . . . .’” FirsTier Mortg. Co. v. Invs. Mortg. Ins. Co., 498 U.S. 269, 270, 111 S. Ct. 648, 112 L. Ed. 2d 743 (1991) (quoting Fed. R. Civ. P. 4(a)(2)). So we also fail to see how that case puts the nail in the coffin for Brown’s notice of appeal, as the dissent contends.

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to which the notice of appeal points.” Id. And in a case like this one, with multiple claims against multiple parties, specifically designating the interlocutory order actually helps, instead of harms, the appellate process by focusing the parties’ and Court’s attention to the issues on appeal.

¶30. Again, it is obvious what Brown was doing—appealing some but not all of the trial court’s dispositive rulings in this case, which all became final and appealable as soon as the last claims were dismissed. This is why Dr. Davey-Sullivan has not questioned this Court’s appellate jurisdiction. In fact, in Dr. Davey-Sullivan’s appellee’s brief, her attorneys acknowledged that, once “the trial court entered an Order dismissing the remaining claims on May 15, 2024[,] . . . Brown then timely filed her Notice of this appeal on June 13, 2024.” While how the parties view the matter is not controlling, it certainly says something that none of the lawyers or parties involved in litigating this case had an issue with Brown’s notice of appeal—that is, until the dissent created one.

¶31. Because any defect in the content of Brown’s notice of appeal was not jurisdictional, we proceed to address the merits of Brown’s appeal.

II. The Trial Court’s Summary-Judgment Grant

¶32. Turning to the merits of Brown’s informed-consent and medical-battery claims, we review the trial court’s summary-judgment grant de novo. Johnson v. Pace, 122 So. 3d 66, 68 (Miss. 2013). “The law of summary judgment is well-settled.” Id. Mississippi Rule of Civil Procedure 56(b) permits a party to move for summary judgment at any time. Johnson,

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122 So. 3d at 68. When faced with a motion for summary judgment, the plaintiff in a medical-malpractice action must produce evidence establishing all the essential elements of her claim for which she would carry the burden of proof at trial. Id. So the controlling question on appeal is—did Brown have to produce a medical expert to establish the episiotomy-related claims against Dr. Davey Sullivan?

III. Informed Consent

¶33. For her lack-of informed-consent claim, the answer is obvious. We have been clear that “expert medical testimony is needed to establish negligence in a malpractice action[.]” Dodd v. Hines, 229 So. 3d 89, 98 (Miss. 2017) (internal quotation mark omitted) (quoting Cole v. Wiggins, 487 So. 2d 203, 206 (Miss. 1986)). And “[a] claim that a physician has breached his duty to obtain his patient’s informed consent before rendering treatment, particularly surgery, fits the conventional tort mode: duty, breach, causation, and damage.” Phillips ex rel. Phillips v. Hull, 516 So. 2d 488, 492 (Miss. 1987), overruled on other grounds by Whittington v. Mason, 905 So. 2d 1261 (Miss. 2005). Thus, it is a medical- malpractice action requiring expert testimony. Brown failed to produce expert testimony during discovery. Neither did she provide expert testimony when facing summary judgment. And even after summary judgment was granted, she provided no expert when asking the trial court to reconsider its ruling. So summary judgment on her informed-consent claim was proper.

IV. Battery

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¶34. But what about Brown’s battery claim? To establish a triable battery claim against her obstetrician, did Brown need to produce expert testimony? Or was her sworn allegation that she asked Dr. Davey-Sullivan not to cut her, in itself, enough to survive summary judgment?

¶35. Some jurisdictions distinguish between a claim that a patient provided no consent to the procedure performed versus a claim based on a patient’s consent being given when he or she is not fully informed of the risks—i.e., a lack of informed consent. E.g., Humboldt Gen. Hosp. v. Sixth Jud. Dist. Ct., 376 P.3d 167, 170 (Nev. 2016); Piedra v. Dugan, 21 Cal. Rptr. 3d 36, 48 (Cal. Ct. App. 2004). In those jurisdictions, when a plaintiff alleges lack of informed consent, expert testimony is required. And that expert testimony must establish the physician breached the standard of care by not fully informing the patient of known risks and complications. Humboldt Gen. Hosp., 376 P.3d at 170. But when there is allegedly no consent at all, those jurisdictions have held that the standard of care is irrelevant. Id. The physician commits a battery if he or she performs a medical procedure without consent, no matter the skill or care used. Id. So expert testimony is not required. Id.

¶36. In Mississippi, we have yet to draw such a clear distinction between a lack-of- informed-consent medical-negligence claim and a no-consent medical-battery claim. See Dodd v. Hines, 229 So. 3d 124, 128 (Miss. Ct. App. 2016) (“Mississippi has not directly addressed when it is appropriate to apply the battery-based analysis or the medical-negligence-based analysis.”), aff’d, 229 So. 3d 89. Admittedly, we have used both

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the terms battery and informed consent interchangeably when discussing consent-based claims against physicians. E.g., Fox v. Smith, 594 So. 2d 596, 604 (Miss. 1992) (“Concisely stated in one sentence, no physician may perform any procedure on a patient no matter how slight or well intentioned without the patient’s informed consent, and violation of this rule constitutes a battery[.]” (emphasis added)); Hull, 516 So. 2d at 491 (recounting the history of the medical-negligence claim of informed consent and its roots in the tort law of assault and battery). But that does not mean that every consent-based claim against a physician is necessarily a lack-of-informed-consent claim and thus a medical-negligence claim requiring expert testimony. We can envision a case in which a doctor rendered medical or surgical treatment allegedly without any consent and without implicating any medical judgment for which expert testimony would be needed.

¶37. But this is not one of those cases.

¶38. Contrary to Brown’s contention, this is not a case without any consent. Neither is this a case in which consent was withdrawn before the procedure began. Instead, this case involved consent given before the procedure then later withdrawn during the throes of the procedure.

¶39. The record shows that Brown, prior to delivery, consented to Dr. Davey-Sullivan performing a “vaginal delivery with possible laceration/episiotomy repairs.”4 And Brown’s

4 After summary judgment was granted, Brown asserted in her motion to vacate that, despite the consent form’s language, she did not consent to an episiotomy but only repairs from an episiotomy. But this after-the-fact assertion is objectively unreasonable. Cf. Reikes

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sworn allegations make clear that it was only after labor was induced and the baby’s head started to crown that Brown told Dr. Davey-Sullivan not to cut her.

¶40. We have yet to address a scenario in which consent was withdrawn in the midst of a medical procedure. But the Georgia Court of Appeals has. Mims v. Boland, 138 S.E.2d 902, 907-08 (Ga. Ct. App. 1964); see also King v. Dodge Cnty. Hosp. Auth., 616 S.E.2d 835 (Ga. Ct. App. 2005). And other jurisdictions have followed that court’s lead by either directly adopting the Mims two-part test or applying a similar approach. E.g., Zaleskas v. Brigham & Women’s Hosp., 141 N.E.3d 927, 937 (Mass. Ct. App. 2020); Levin v. United States, 2016 Guam 14 ¶ 19 (Guam 2016); Pallacovitch v. Waterbury Hosp., No. CV126013332, 2012 WL 3667310, at *4 (Conn. Super. Ct. Aug. 3, 2012); Yoder v. Cotton, 758 N.W.2d 630, 637 (Neb. 2008); Coulter v. Thomas, 33 S.W.3d 522, 524 (Ky. 2000); Hartman v. Le Corps, No. 89-188-II, 1989 WL 115181, at *3 (Tenn. Ct. App. Oct. 4, 1989).

¶41. In Mims, the Georgia court was presented with an “unusual question,” similar to the one presented in our case—namely, “whether after treatment or examination has begun, the

v. Martin, 471 So. 2d 385, 393 (Miss. 1985) (applying an objective test to whether patient would withhold consent if fully informed because though “[s]ubjectively [the patient] may believe so with the 20-20 vision of hindsight, . . . we doubt that justice will be served by placing the physician in jeopardy of the patient’s bitterness and disillusionment.” (quoting Cobbs v. Grant, 502 P.2d 1, 11-12 (Cal. 1972))). By definition, an episiotomy is not a natural occurrence. It is “surgical incision . . . to enlarge the vaginal opening . . . .” Episiotomy, Merriam-Webster, https://www.merriam-webster.com/dictionary/episiotomy (last visited July 12, 2026) (emphasis added). So objectively speaking, one cannot consent to an episiotomy repair without consenting to the episiotomy. Thus, based on the consent form Brown signed, it was reasonable for Dr. Davey-Sullivan to believe Brown had consented to an episiotomy if medically necessary.

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patient’s consent previously given may be withdrawn so as to subject the doctor to liability for assault and battery if the treatment or examination is continued.” Mims, 138 S.E.2d at 907. The court concluded that, because of a patient’s “right of freedom from unwanted contacts and invasions upon his [or her] body,” a patient can withdraw consent even after the treatment is underway. Id. And any continued contact after consent is withdrawn is a battery if “the physician’s withdrawal under the medical circumstances then existing would not endanger the life or health of the patient.” Id. In such scenarios, it is not enough to establish that consent was withdrawn.5 The patient must also establish that it was “medically feasible for the doctor to desist in the treatment or examination at that point without the cessation being detrimental to the patient’s health or life from a medical viewpoint.” Id. Obviously, “[t]his presents a medical question” that “can only be proved by medical evidence[,]” meaning expert medical testimony. Id. at 907-08.

¶42. We find the Mims test, and the reasoning behind it, sound. And we join those jurisdictions that have adopted its approach. “To permit a lesser standard”—that would allow a battery claim against a physician to proceed based solely on a patient’s assertion that she changed her mind and yelled “stop” or “don’t cut me” just as the procedure was to be performed—would “subject the medical profession to an endless possibility of harassment

5 In fact, Mims required the patient to “act or use language which can be subject to no other inference” than withdrawn consent. Mims, 138 S.E.2d at 907. “These actions and utterances of the patient must be such as to leave no room for doubt in the minds of reasonable men that in view of all the circumstances consent was actually withdrawn.” Id.

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and would place upon them a potential of punishment in every case where their examination or treatment results in less than complete success.” Id. at 908.

¶43. The facts here, as alleged by Brown, bear out why a claimant must establish that desisting from the procedure was medically feasible and would not be detrimental to the patient—or rather patients in this case, as Dr. Davey-Sullivan owed duties to both Brown and the infant being delivered. See Weber v. Est. of Hill, 335 So. 3d 1030 (Miss. 2021) (recognizing a medical-malpractice action brought on behalf of the infant being delivered). Brown admits she was in the grips of a medically induced labor when her child’s head began to crown. This is when Dr. Davey-Sullivan announced she was going to perform an episiotomy—a procedure Brown had previously consented to. And it was at this moment that Brown begged Dr. Davey-Sullivan not cut her. Central to Brown’s battery count in her complaint is her allegation that the episiotomy was not medically necessary for the safe delivery of her child.

¶44. Brown did not need an expert to establish that in the midst of delivery she requested Dr. Davey-Sullivan not cut her. Cole, 487 So. 2d at 206. But to establish a triable medical- battery claim based on withdrawn consent, she did need expert testimony to prove Dr. Davey- Sullivan could have abided by Brown’s plea without harming Brown or the baby. And when faced with summary judgment, Brown produce no expert. Even after summary judgment was granted, in her motion to vacate, Brown doubled down—again asserting no expert was needed to prove Dr. Davey-Sullivan performed a medically unnecessary procedure.

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¶45. Because no expert was provided, we agree with the trial court that summary judgment in Dr. Davey-Sullivan’s favor was appropriate—not just on the informed-consent claim but also on the medical-battery claim. We also find no abuse of discretion in the trial court’s denial of Brown’s motion to vacate its summary-judgment decision, which was based on Brown’s continued insistence she did not need a medical expert.

¶46. Further, because Brown needed expert testimony to establish her consent-based claims, statutory law required she attach a certificate of expert consultation to her complaint. Miss. Code Ann. § 11-1-58 (Rev. 2019). Brown failed to do this. So the trial court did not err by alternatively granting summary judgment for failure to comply with Section 11-1-58.

¶47. AFFIRMED.

RANDOLPH, C.J., KING, P.J., ISHEE, SULLIVAN AND BRANNING, JJ., CONCUR. COLEMAN, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. WILSON, J., NOT PARTICIPATING.

COLEMAN, PRESIDING JUSTICE, DISSENTING:

¶48. The plaintiff, Shani M. Brown, filed a notice of appeal that fails to timely appeal any final judgment. Accordingly, the majority does something that the Court may not do, i.e., assume jurisdiction over an attempted appeal in which no final judgment has in fact been appealed. We do not have jurisdiction over the instant appeal and should dismiss it.

BACKGROUND

¶49. The instant litigation began with the filing of the plaintiff’s original complaint in September 2019. Dr. Barbara Davey-Sullivan filed her motion for summary judgment on

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January 28, 2022. On June 24, 2022, the trial court issued an order granting Dr. Davey- Sullivan’s motion for summary judgment as to the plaintiff’s claims for lack of informed consent and assault and battery. The order did not grant summary judgment as to the plaintiff’s remaining claim against Dr. Davey-Sullivan for invasion of privacy.

¶50. Fourteen days after the trial court entered the order granting partial summary judgment, on July 8, 2022, the plaintiff filed a Motion to Vacate, Set Aside, and/or Reconsider Order Granting Summary Judgment. The trial court denied the motion for reconsideration on October 19, 2022. On May 15, 2024, in its Order Granting Defendant, Mississippi Baptist Medical Center Inc.’s Motion to Dismiss, the trial court found that there were no claims remaining as to any parties and ordered final judgment “as to all all claims and all parties . . . .”

¶51. On June 13, 2024, the plaintiff filed her notice of appeal, in which she indicated the desire to appeal the June 24, 2022, order granting summary judgment in favor of Dr. Davey- Sullivan, an order entered June 24, 2022, denying a motion for an extension of time a response to motions for summary judgment, the July 8, 2022, order denying the motion for reconsideration, and an order dated January 13, 2023, granting summary judgment in favor of other parties, i.e., Baptist Memorial Health Care Corporation, Baptist Memorial Health Services, Inc., and Mississippi Baptist Health Systems. Absent from the notice of appeal is the May 15, 2024, order granting Mississippi Baptist Medical Center Inc.’s Motion to Dismiss, which is the final judgment.

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DISCUSSION

I. The Court must review the record and decide whether we have jurisdiction.

¶52. When necessary, we must examine the record and determine, sua sponte, whether the appeal of a given matter is properly before us.

The Supreme Court in all cases is bound to inquire into its own jurisdiction, and decline to exercise a power not conferred upon it by law. And, if the question of jurisdiction is not raised by either of the parties to a cause, it is the duty of the Supreme Court to raise it of its own motion.

McRae v. Mitchell, 337 So. 3d 1057, 1060 (¶ 6) (Miss. 2022) (quoting Vicksburg Healthcare, LLC v. Miss. State Dep’t of Health, 292 So. 3d 223, 226-27 (Miss. 2020) (quoting Drummond v. State, 184 Miss. 738, 185 So. 207, 209 (1938))).

¶53. “Timely filing of a notice of appeal is jurisdictional.” Malouf & Malouf, PLLC v. Est. of Ivison (In re Est of Ivison), 371 So. 3d 172, 177 (Miss. 2023) (internal quotation marks omitted) (quoting Busby v. Anderson, 978 So. 2d 637, 638-39 (Miss. 2008) (citing Miss. Dep’t of Mental Health v. Hall, 936 So. 2d 917, 929 (Miss. 2006))). Pursuant to Mississippi Rule of Appellate Procedure 4(a), Brown had thirty days “after the entry of the judgment or order” from which she appeals to file her notice of appeal. As noted above, her June 13, 2024, notice of appeal seeks to appeal four orders entered by the trial court, the most recent of which was entered on January 19, 2023, or almost seventeen months before she filed her notice of appeal. Therefore, even if any of the orders listed in her notice of appeal were final judgments, her time to file an appeal has run as to them, and we lack jurisdiction.

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II. The June 24, 2022, order granting summary judgment was not a final order.

¶54. Even had the notice of appeal been timely, the order Brown seeks to appeal that granted summary judgment in favor of Dr. Davey-Sullivan was not a final, appealable judgment.

¶55. In the First Amended Complaint, which was current when the trial court granted Dr. Davey-Sullivan’s motion for summary judgment, the plaintiff made the following three claims against Dr. Davey-Sullivan: lack of informed consent, assault and battery, and invasion of privacy. The June 24, 2022, order explicitly granted summary judgment only as to the first two thereby leaving active the claim for invasion of privacy. Moreover, the June 24, 2022, order did not dismiss Dr. Davey-Sullivan from the litigation.

A final judgment is one that “adjudicates the merits of the controversy and settles all issues as to all the parties and requires no further action by the trial court.” Brown v. Collections, Inc., 188 So. 3d 1171, 1174 (Miss. 2016)

(alteration in original) (internal quotation marks omitted) (quoting Lewis v.

Harvey (In re Est. of Lewis), 135 So. 3d 202, 205 (Miss. Ct. App. 2014)). A decision that does not resolve all of the claims against all of the parties and that leaves issues pending before the court is interlocutory and is not a final judgment from which an appeal can be taken. Id. (citing In re Est. of Lewis, 135 So. 3d at 205).

McRae, 337 So. 3d at 1060 (¶ 7). The order at issue here, which dismissed only two of three claims, clearly did not adjudicate and settle all issues between the plaintiff and Dr. Davey- Sullivan. Accordingly, it was not a final judgment subject to appeal via a notice of appeal, and we lack jurisdiction for that reason as well.

III. The plaintiff’s failure to timely appeal any final judgment is fatal

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to her appeal.

¶56. Brown’s appeal cannot be saved by the fact that she filed her notice of appeal within thirty days of the trial court’s order granting May 15, 2024, order granting Mississippi Baptist Medical Center Inc.’s Motion to Dismiss. The order serves as a final order, dismissing the civil action in its entirety, but the plaintiff did not appeal it. Although an appellate court may review issues decided in an interlocutory order on direct appeal, Radco Fishing & Rental Tools, Inc. v. Com. Res., Inc., 407 So. 3d 167, 178 (¶ 21) (Miss. 2025) (citing Creel v. Bridgestone/Firestone N. Am. Tire, LLC, 950 So. 2d 1024, 1027 (Miss. 2007)), the final decree itself must also be appealed. “An appeal from the final decree opens for consideration all prior interlocutory orders, any way connected with the merits of the final decree.” Radco, 407 So. 2d at 178 (¶ 21) (internal quotation marks omitted) (quoting Creel, 950 So. 2d at 1027) (quoting Kimball, Raymond & Co. v. Alcorn & Fisher, 45 Miss. 145, 149 (1871))). It does not, however, work the other way around such that a notice of appeal of interlocutory orders suffices as an appeal of a final judgment. In O’Neill v. O’Neill, 551 So. 2d 228 (Miss. 1989), the appellee contended that the appellant did not timely appeal an interlocutory order. In rejecting the appellee’s contention and holding that the order was within the court’s authority to consider, the O’Neill Court wrote as follows:

The first question to be answered is whether the first decree of August 28, 1986, was a final decree under M.R.C.P. 54(a), and clearly in this case it was not. The style of the order itself represents that this decree is an interlocutory one, not a final one. No attempt to seek an interlocutory appeal under Mississippi Supreme Court Rule 5 was sought. The final judgment was entered September 15, 1987, and notice of appeal was perfected within thirty

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(30) days from the date of entry of the final judgment or order. (Mississippi Supreme Court Rule 4). Therefore, the appeal from a final order was timely made. Neither is the appellant precluded from raising an issue regarding the entry of the interlocutory decree on this appeal. This cross-assignment of error is without merit, and concluding so, this Court now considers the other issues.

O’Neill, 551 So. 2d at 232 (emphasis added). As is clear from the above-quoted language, a timely appeal of the final judgment is required to give us jurisdiction to consider any interlocutory order. “It is well settled that ‘[a]ppeals to the Supreme Court from the circuit court lie only from a final judgment.’” LaFontaine v. Holliday, 110 So. 3d 785, 787 (¶ 8) (Miss. 2013) (alteration in original) (quoting Cotton v. Veterans Cab Co., Inc., 344 So. 2d 730, 731 (Miss. 1977)).

Pursuant to our caselaw, rule, and statute, only final judgments may be appealed directly. M.W.F. v. D.D.F., 926 So. 2d 897, 899 (¶ 4) (Miss. 2006);

Miss. Code Ann. §§ 9-3-9 & 11-51-3 (Rev. 2014 and 2004); Miss. R. App. P.

5. “[A]n appeal is not a matter of right but is subject to the statutory provisions, and the basic requirement is that appeals are proper only if from a final judgment.” Sanford v. Bd. of Supervisors, Covington Cty., 421 So. 2d 488, 491 (Miss. 1982).

Wigington v. McCalop, 191 So. 3d 124, 126 (¶ 3) (Miss. 2016) (emphasis added).

¶57. Finally, the notice of appeal must indeed name the exact final order or judgment from which an appeal is sought. Miss. R. App. P. 3(c) (“The notice of appeal shall specify the party or parties taking the appeal and the party or parties against whom the appeal is taken, and shall designate as a whole or in part the judgment or order appealed from.”) We have described the effect of Rule 3 as “simplif[ying] the events jurisdictionally required to perfect an appeal.” Tandy Elecs., Inc. v. Fletcher, 554 So. 2d 308, 310 (Miss. 1989).

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¶58. As to the following rule, Rule 4(a), we have described it as “a ‘hard-edged, mandatory’ rule which this Court ‘strictly enforces.’” Pruett v. Malone, 767 So. 2d 983, 986

(¶ 10) (Miss. 2000) (quoting Ivy v. Gen. Motors Acceptance Corp., 612 So. 2d 1108, 1116 (Miss. 1992)). Rule 4(a) mandates that “the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” Not only does Rule 3 require a notice of appeal to list the exact final judgment from which an appellant appeals, Rule 4, which we claim to apply as a “hard- edged” and “mandatory” rule, incorporates and necessarily implies the requirement.

¶59. As established above, the appeal of a final judgment is a jurisdictional prerequisite for an appellate court to consider interlocutory orders that were entered prior to that final judgment. Our cases mandate that the appellant must appeal the final judgment in question before we have jurisdiction. In O’Neill, the appellant appealed the final judgment. O’Neill, 551 So. 2d at 231. In the case sub judice, Brown did not appeal the final judgment.

¶60. The majority cites Jones v. Chaney & James Construction Co., 399 F.2d 84 “(5th Cir. 1968), in which the appellant filed a timely notice of appeal that, like today’s case, listed only interlocutory orders that “were unappealable.” Id. at 86. As I argue today, the Jones appellee argued that, because the notice of appeal failed to list the final judgment, the United States Court of Appeals for the Fifth Circuit lacked appellate jurisdiction. The Fifth Circuit disagreed and allowed the appeal to proceed. Id.

¶61. The Fifth Circuit continued its lax view of the notice of appeal requirements in Jetco

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Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228, 1231 (5th Cir. 1973). There, again like the case sub judice, the appellant filed a notice of appeal that did not appeal any final judgment. Id. at 1231. In language calling to mind the reasoning of the majority today, the Fifth Circuit decided to “decline appellee’s invitation to exalt form over substance by dismissing this appeal.”

¶62. The Fifth Circuit, though, has expressly overruled the lenient view espoused in Jetco, and, by necessary implication, Jones. In United States v. Cooper, 135 F.3d 960, 963 (5th Cir. 1998), the Fifth Circuit expressly overruled the portion of Jetco allowing the appeal there to proceed: “Today we recognize that . . . this expansive view of appellate jurisdiction cannot survive.” The Cooper Court held: “To the extent that our prior cases allowed appeal of non-final decisions, they are no longer good law in the wake of FirsTier [Mortgage Co. v. Investors Mortgage Co., 480 U.S. 269, 276 (1991)].” Cooper, 135 F.3d at 963. In FirstTier, the United States Supreme Court wrote regarding notices of appeal from interlocutory decisions as follows:

This is not to say that Rule 4(a)(2) permits a notice of appeal from a clearly interlocutory decision—such as a discovery ruling or a sanction order under Rule 11 of the Federal Rules of Civil Procedure—to serve as a notice of appeal from the final judgment. A belief that such a decision is a final judgment would not be reasonable.

FirstTier, 498 U.S. at 276. The Supreme Court in FirstTier could not be clearer. Under the federal version of Rule 4, the position taken by the majority today, i.e., that Brown’s notice of appeal of the clearly interlocutory orders listed therein serves as a notice of appeal of the

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final judgment is “not reasonable.”

¶63. The Fifth Circuit makes clear its abandonment of the Jones approach in United States v. Taylor, 632 F.2d 530 (5th Cir. 1980). “Appellants failed to file a notice of appeal from the February 19, 1980, judgment that made the [December 7, 1979,] counterclaim dismissal and joinder denial a final and thus appealable decision. Under Fed. R. App. Pro. 4(a), and 28 U.S.C.A. § 2107, this Court lacks jurisdiction to review the final judgment.” Id. at 531. Again, in today’s case, Brown did not appeal the final judgment.

CONCLUSION

¶64. Regarding the enforcement of our rules of appellate procedure setting forth the prerequisites for perfecting an appeal, we have written as follows:

We regard convergence of declared rule and official conduct a virtue in a legal system. We have declared in the rules noted above that appeals not perfected within thirty days will be dismissed, period. We have declared that the rule will be enforced. See Landrum v. Bailey, 475 So. 2d 140, 141 (Miss. 1985).

See also Telford v. Aloway, 530 So. 2d 179, 180–81 (Miss. 1988); and Clark v. City of Pascagoula, 473 So. 2d 477, 478 (Miss. 1985). Litigants are entitled to expect that we will do what we say. Otherwise our actions become arbitrary and officially so, and, more importantly, in this world where perception is reality to so many we open ourselves to the public perception of arbitrariness and caprice in the administration of appellate justice. If the word gets out that we have not the stomach to enforce the rule we have declared, this is but an invitation to further sattelite [sic] litigation of the sort we should discourage, litigation that is unnecessary and costly to all concerned, including the courts.

If we make an exception today, the question is sure to follow, what about an appellant two days late? Five days late? Ten days late? It takes little sense to know we are going to have to draw the line somewhere or become bogged down in hearing and deciding motions to docket and dismiss. In this view the best thing to do is draw the line where we have drawn it—at thirty days—and

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stick with it.

Fletcher, 554 So. 2d at 310-11. That, in today’s case, in favor of the plaintiff (by entertaining her appeal), we make an exception to the requirement that a final judgment be appealed for the Court to exercise jurisdiction opens the door to all of the charges against the Court of which the Fletcher Court warned above.

¶65. Because the plaintiff failed to timely appeal any final judgment, her appeal should be dismissed for lack of jurisdiction.