On August 6, 2026, the Mississippi Supreme Court issued an opinion in the case of Brown v. Davey-Sullivan that establishes a framework for evaluating consent-based battery claims at the pleading, discovery, and summary judgment stages.
What Happened?
A patient at a Mississippi hospital signed a consent form before induced childbirth that included consent to certain potential secondary procedures. When the physician indicated the need for one of the secondary procedures during the operation, the patient withdrew consent for that procedure. The patient brought lack of informed consent and battery claims against the physician for continuing with the procedure once the consent was withdrawn. The patient did not produce any expert witness testimony or a certificate of expert consultation. The physician responded that proceeding with the procedure was a decision rooted in medical necessity. The physician then moved for summary judgment, arguing both claims constituted medical negligence claims that require expert testimony. The circuit court agreed and granted summary judgment in favor of the physician. The Mississippi Supreme Court affirmed.
What It Means
With Brown v. Davey-Sullivan, the Court has drawn a significant distinction between (1) a medical battery claim based on the absence of consent and (2) a lack of informed consent medical negligence or medical battery claim. This ruling adopted a framework similar to at least six other states, including Georgia’s long-standing approach.
Under Brown, when a patient withdraws consent during a procedure, and the provider contends that stopping was not medically feasible, expert testimony is necessary to address the medical consequences of stopping or changing course. This testimony is not necessary to prove the fact that consent was withdrawn. Rather, it is necessary to determine whether it was medically feasible for the physician to stop or refrain from the procedure without endangering the patient’s—or, in the case of childbirth, the fetus’s or infant’s—life or health.
Going forward, parties in lack of informed consent cases arising from withdrawn consent should follow the applicable medical negligence framework, including the requirement of expert proof on questions of medical feasibility. Discovery and expert testimony should focus on the precise timing of the alleged withdrawal, the patient’s condition at that moment, the procedural stage, and the medical consequences of stopping or changing course. The medical record should be developed to establish the clinical basis for proceeding, including risks to the patient and, where applicable, to another patient such as a fetus or infant. Where the plaintiff cannot offer qualified expert testimony that stopping was medically feasible without jeopardizing the patient or another affected patient, Brown provides strong support for summary judgment.
Members of Butler Snow’s Tort, Transportation & Specialized Litigation, Commercial Litigation, and Health Law practice groups are available to assist healthcare providers, physicians, hospitals, and other healthcare organizations in evaluating the implications of Brown v. Davey-Sullivan and other developments affecting healthcare litigation.
