Whittington v. Mason

905 So. 2d 1261, 2005 WL 1499756
CourtMississippi Supreme Court
DecidedJune 16, 2005
Docket2003-CT-00700-SCT
StatusPublished
Cited by16 cases

This text of 905 So. 2d 1261 (Whittington v. Mason) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whittington v. Mason, 905 So. 2d 1261, 2005 WL 1499756 (Mich. 2005).

Opinion

905 So.2d 1261 (2005)

Bennie Scott WHITTINGTON and Tina S. Whittington
v.
Woodie L. MASON, M.D. and Hinds Urology Clinic, P.A.

No. 2003-CT-00700-SCT.

Supreme Court of Mississippi.

June 16, 2005.

*1262 Douglas G. Mercier, Ridgeland, Willie T. Abston, Jackson, attorneys for appellant.

George Quinn Evans, Jackson, Lynda Clower Carter, attorneys for appellees.

EN BANC.

ON WRIT OF CERTIORARI

DICKINSON, Justice, for the Court.

¶ 1. The narrow question presented in this medical negligence case is whether expert testimony is required to establish the material risks which must be disclosed to a patient in order to obtain informed consent to a medical procedure.

BACKGROUND

¶ 2. Because the trial court directed a verdict for the defendants, we begin by setting forth the facts in the light most favorable to the plaintiffs. After fathering six children, Bennie Scott Whittington considered having a vasectomy. He and his wife, Tina, visited Dr. Woodie L. Mason at the Hinds Urology Clinic, P.A. (the "Clinic"), on May 19, 1998, to discuss the procedure. A nursing assistant directed the Whittingtons to a room where they watched an informational videotape about the vasectomy procedure. After watching the videotape, the Whittingtons met with Dr. Mason to discuss the procedure. At some point prior to leaving the clinic, the Whittingtons were presented with a consent form for the procedure which disclosed certain risks. The Whittingtons signed the consent form just below the following language printed on the form: "we have been informed of alternatives and complications."

¶ 3. Mr. Whittington returned on May 29, 1998, for the vasectomy, which Dr. Mason performed as an out-patient procedure. Following the procedure, Mr. Whittington returned home. Within a few hours, he began to experience severe pain and swelling in his scrotal area. Mrs. Whittington called Dr. Mason who instructed Mr. Whittington to return to the clinic. Dr. Mason advised Mr. Whittington to stay off his feet for the remainder of the day, but advised him that the pain should resolve within a few hours, and he should be able to return to work within 72 hours.

¶ 4. Mr. Whittington continued to experience severe pain, bruising and swelling. He returned to see Dr. Mason on June 2 and again on June 8. During the latter visit, Dr. Mason released Mr. Whittington to return to work. The next day at work, Mr. Whittington and another worker were lifting a tire from an "18 wheeler" when Mr. Whittington experienced an episode of extreme pain on the right side of his scrotum. He was also bleeding in the scrotal area. He called Dr. Mason who instructed him to return to the clinic the next day.

¶ 5. Dr. Mason applied silver nitrate to the scrotal area and then informed Mr. *1263 Whittington that he required a second surgery to remove a granuloma that had developed following the vasectomy.

¶ 6. After Dr. Mason removed the granuloma on July 15, Mr. Whittington continued to experience pain, severe swelling and bruising for six to eight weeks. An open, draining hole remained at the surgical site, and he was unable to return to work for several weeks.

¶ 7. When Dr. Mason saw Mr. Whittington again on July 24, he advised that the pain should subside. On August 3, Dr. Mason released Mr. Whittington to return to work. However, because he still experienced pain, Mr. Whittington decided to seek a second opinion.

¶ 8. Sometime around the middle of August, Mr. Whittington scheduled an appointment with Dr. Bruce Shingleton, who recommended another surgery to remove a granuloma. The procedure was performed at the end of August. Mr. Whittington continued to experience pain and severe swelling for several weeks. He remained under Dr. Shingleton's care for several months because the pain continued.

¶ 9. On November 30, Dr. Shingleton released Mr. Whittington. However, because he still suffered abdominal cramps and pain following sexual activity, Mr. Whittington decided to get a third opinion.

¶ 10. On January 29, 1999, Mr. Whittington saw Dr. Lionel Fraser who prescribed a course of pain therapy and treatment which included a scrotal injection to alleviate the pain. When these measures did not end the pain, Dr. Fraser removed Mr. Whittington's right testicle, and approximately one week later the pain subsided.

¶ 11. The Whittingtons filed suit against Dr. Mason and the Clinic, alleging various causes of action. However, an Agreed Order of Partial Summary Judgment was entered, leaving as the only relevant issue before the trial court the question of whether Dr. Mason obtained informed consent to perform the vasectomy.

¶ 12. At trial, the Whittingtons did not call an expert to establish the material risks which should have been disclosed in order to obtain informed consent. After the jury failed to reach a verdict, the trial court directed a verdict for the defendants. The Whittingtons timely filed an appeal which was assigned to the Court of Appeals.

¶ 13. In affirming the trial court's directed verdict for the defendants, the Court of Appeals stated that "[e]xpert testimony is necessary to determine whether or not the loss of a testicle is a known risk in a procedure such as a vasectomy." 906 So.2d 10, 14, 2004 WL 2163388 at *3 (Miss. Ct.App.2004). Because the Whittingtons presented no expert testimony, the Court of Appeals concluded that the defendants could not be held liable for failure to disclose the loss of a testicle as a risk of the procedure. The Court of Appeals provided no further analysis of the Whittingtons' claim that Dr. Mason failed to adequately inform them of other risks of the vasectomy including severe, chronic pain and bruising, sperm granuloma, and additional medical procedures.

¶ 14. In a motion for rehearing, the Whittingtons directed the Court of Appeals to Dr. Mason's own testimony in which he admitted the existence of multiple "known risks" of a vasectomy. In their brief, the Whittingtons state:

Mr. Whittington suffered an orchiectomy, and the decision of the Court of Appeals holds that there was no expert testimony at trial to establish that the "orchiectomy" was a "known risk" of Dr. Mason's vasectomy. But accepting the *1264 holding of the Court of Appeals, according to the transcript of the trial testimony, the same holding cannot be applied to the other "known risks" to which Dr. Mason testified while being cross-examined in the Plaintiffs' case-in-chief at the trial of this civil action. Those other "known risks" of chronic pain, sperm granuloma and additional surgical procedures represent painful and compensable complications which were suffered by Scott Whittington as a result of Dr. Mason's vasectomy procedure, and those other post-vasectomy complications are matters on which Scott Whittington presented evidence at trial.

¶ 15. We granted the Whittingtons' petition for writ of certiorari and now proceed to finally decide the matter.

ANALYSIS

¶ 16. Every medical procedure involves risks. As discussed infra, no court has ever required a physician to disclose to a patient every possible risk of a medical procedure. Instead, from among all possible risks of a procedure, only those which are material must be disclosed in order to obtain informed consent to the procedure. This begs the question: What must be done (in the legal sense) to establish what are—and are not—the material risks of a particular procedure?

¶ 17. It is apparent from the excellent briefs submitted by both parties that our jurisprudence regarding "informed consent" is not crystal clear on this point.

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Cite This Page — Counsel Stack

Bluebook (online)
905 So. 2d 1261, 2005 WL 1499756, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whittington-v-mason-miss-2005.