Phillips v. Hull

516 So.2d 488 (Miss. 1987)

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Nature of the Case

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Facts

P gave birth by caesarean section followed by a tubal ligation sexual sterilization operation performed by D. P is diabetic, and future pregnancies indicated high risk pregnancy. P was told about a tubal ligation operation by D's nurse but alleges that the ordinary procedure requires that D tell her that the tubal ligation was not 100 percent effective and advise her to continue contraceptive measures. P became pregnant and gave birth to minor plaintiff Julie on. P alleges that Julie is abnormal and has cerebral palsy. Ps seek damages for alleged tort liability in the sum of $1,500,000 for failure to properly perform a tubal ligation, failure to provide reasonable medical care during the sexual sterilization operation and pregnancy, failure to advise P of her situation and alternative methods of treatment, and failure to secure the proper informed consent of P for the treatment rendered. The husband seeks damages of loss of consortium. The minor plaintiff alleges that D failed to properly perform the tubal ligation, failed to provide proper treatment during pregnancy and delivery, failed to advise her mother of alternative methods, and failed to secure the proper informed consent of her mother. Minor plaintiff sought damages for tort and breach of warranty in the sum of $3,500,000. D denied the charges. D alleged he exercised the degree of skill, care, and diligence required of him in his profession. D stated that he informed P that the tubal ligation was not 100 percent effective and that there are occasional failures but that in such event he would take care of P free of charge. P was never billed for prenatal care, hospital admissions, a caesarean section, hysterectomy or post-partal care. The records applicable to Julie Ann reveal no conclusive medical opinion as to her having cerebral palsy or that Julie Ann has any medical condition or abnormality resulting from the alleged acts or omission on the part of D. No expert witness had been found to testify for P. D moved for summary judgment. The trial court granted summary judgment for the failure of Ps to submit affidavits of medical experts supporting their allegations. This appeal resulted.