IN THE COURT OF APPEALS

OF THE

STATE OF MISSISSIPPI

NO. 1999-CA-00502-COA

JOYCE GOLEMAN APPELLANT

v.

R.J. ORGLER, M.D. APPELLEE

DATE OF JUDGMENT: 02/23/1999

TRIAL JUDGE: HON. JOSEPH H. LOPER JR.

COURT FROM WHICH APPEALED: WINSTON COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: LAUREL G. WEIR

ATTORNEYS FOR APPELLEE: ROBERT K. UPCHURCH

DAVID W. UPCHURCH

NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE

TRIAL COURT DISPOSITION: SUMMARY JUDGMENT GRANTED IN FAVOR OF

APPELLEE

DISPOSITION: AFFIRMED - 05/30/2000

MOTION FOR REHEARING FILED: 6/15/2000; denied 8/15/2000

CERTIORARI FILED: 8/24/2000; denied 11/16/2000

MANDATE ISSUED: 12/7/2000

BEFORE McMILLIN, C.J., LEE, AND PAYNE, JJ.

LEE, J., FOR THE COURT:

¶1. On December 1, 1995, Joyce Goleman filed a medical malpractice suit against Dr. R. J. Orgler.

Subsequently, Dr. Orgler filed two motions for summary judgment. Both motions were granted by the trial

judge. The final motion was granted based on the fact that the statute of limitations had run and the action

was time barred, and the trial judge dismissed the cause of action. Goleman has filed this timely appeal and

presents the following issue: whether the trial judge erred in granting Dr. Orgler's motion for summary

judgment on the basis that Goleman's claim was barred by the statute of limitations. Finding this issue to be

without merit, we affirm the decision of the lower court.

FACTS

¶2. On December 1, 1995, Goleman filed a cause of action against Dr. Orgler. Within her complaint,

Goleman claimed that on November 29, 1993, she was a patient of Dr. Orgler's and was seeking treatment

for what she contended was influenza. However, Dr. Orgler negligently diagnosed and performed surgery

for appendicitis. Dr. Orgler filed an answer in which he stated he had recommended to Goleman that she be

admitted to the hospital and that with her permission and consent, he performed an exploratory laparotomy.

On September 13, 1996, Dr. Orgler filed a motion for summary judgment because Goleman had failed to
present expert testimony to support her allegations; therefore, there was no triable issue of fact. Goleman

responded to the motion for summary judgment filed by Dr. Orgler and submitted a motion to make her

complaint more specific.

¶3. The trial court granted Dr. Orgler's motion for summary judgment based on the lack of expert testimony

to establish a standard of care and any breach. Additionally, the trial judge allowed Goleman to amend her

complaint to allege the claim of lack of informed consent. Goleman's last amended complaint claimed that

Dr. Orgler breached his duty by failing to inform her regarding what treatment he was going to administer,

and that he failed to inform her that he was going to perform an operation. Additionally, Goleman alleged

that Dr. Orgler failed to inform her of the risk and consequences of the proposed treatment and any

reasonable alternatives. Furthermore, Goleman contended she had never consented to any operation on her

body and that the operation was against her will. Dr. Orgler filed another motion for summary judgment.

¶4. Dr. Orgler premised this motion on the fact that whether Goleman's claim was founded on assault and

battery or medical negligence due to a lack of informed consent, and it was barred by the applicable statute

of limitations. The trial judge granted the motion for summary judgment.

DISCUSSION

I. WHETHER THE TRIAL JUDGE ERRED IN GRANTING DR. ORGLER'S MOTION FOR

SUMMARY JUDGMENT ON THE BASIS THAT GOLEMAN'S CLAIM WAS BARRED BY

THE STATUTE OF LIMITATIONS.

¶5. Before this Court discusses the merits of Goleman's argument, we will discuss the applicable standard

of review for a summary judgment. The lower court is vested with the discretion to grant a summary

judgment "if the pleadings, depositions, answers to interrogatories and admissions on file together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law." Collier v. Trustmark Nat'l Bank, 678 So. 2d 693, 695 (Miss.

1996). The standard of review on appeal when a trial judge grants a motion for summary judgment allows

this Court to review the record de novo to determine if there was error on the part of the trial judge in

granting the motion. Id. In a motion for summary judgment the movant and non-movant maintain burdens of

production paralleling their burdens of proof they would sustain at trial. Id. at 696 (citations omitted). The

party that is seeking summary judgment has the burden of persuading the trial judge that there are no

genuine issues of material fact, and that based upon the facts, they are entitled to a summary judgment. Id.

Having addressed the standard of review, we will now analyze Goleman's claim.

¶6. Goleman argues that her claim was not time barred due to the statute of limitations, and the trial judge

improperly granted Dr. Orgler's motion for summary judgment on this basis. Goleman contends that the one

year statute of limitations for assault and battery should not have been applied to her cause of action, but

that instead a six or two year statute of limitations should apply because her claim is based on the lack of

informed consent.

¶7. Dr. Orgler contends that whether Goleman's claim was classified as an assault and battery or as medical

malpractice the statute of limitations had run on her claim. Mississippi Code Annotated § 15-1-35 (Rev.

1995) requires that all actions for assault and battery "be commenced within one year after the cause of

such action accrued and not after." Mississippi Code Annotated. § 15-1-36 (Supp. 1999) states that

causes of action based on medical malpractice must be filed within two years "from the date the alleged act,
omission or neglect shall or with reasonable diligence might have been first known or discovered." Goleman

first opposes the application of a one or two year statute of limitations to her cause of action and asserts

that the six year statute of limitations under Miss. Code Ann. § 15-1-49 (Rev. 1995) is applicable to this

situation; therefore, summary judgment was improper.

¶8. Goleman supports this proposition with the case of Ross v. Hodges, 234 So. 2d 905 (Miss. 1970).

Ross states that if the case is based on a lack of informed consent it is not a case of assault and battery but

is a case of tort for which the six year statute of limitations applies. Id. at 908-09. However, this is no

longer the law in Mississippi. In Williams v. Kilgore, 618 So. 2d 51, 53 (Miss. 1992), the Mississippi

Supreme Court discussed the evolution of the applicable statute of limitations to medical malpractice cases.

Prior to July 1, 1976, Miss. Code Ann. § 15-1-49 (Rev. 1995), a six year general statute of limitations

governed medical malpractice actions. Id. On July 1, 1976, Miss. Code Ann. § 15-1-49 (Rev. 1995) was

superseded by the enactment of a two year medical malpractice statute under Miss. Code Ann. § 15-1-36

(Supp. 1999). Id. at 53-54. Therefore, Goleman's argument for the application of the general six year

statute of limitations fails. Goleman also argues that the one year statute of limitations for assault and battery

does not apply because her claim is based on a lack of informed consent.

¶9. In Phillips v. Hull, 516 So. 2d 488, 492 (Miss. 1987), the Mississippi Supreme Court acknowledged

that adults that are in their right mind have a right to decide what will be done to their body, and if a surgeon

performs an operation without the patient's consent it is an assault for which he is liable. (citations omitted).

In an action for informed consent you actually have knowledge that treatment is going to be rendered. Id.

Under Miss. Code Ann. § 15-1-35 (Rev. 1995), there is a one year statute of limitations which applies to

the intentional tort of assault, and such actions "shall be commenced within one (1) year next after the cause

of such action accrued, and not after." In Wilson v. Retail Credit Co., 325 F. Supp. 460, 465 (S.D. Miss.

1971), the District Court acknowledged that it has long been the law in Mississippi that a cause of action

involving an intentional tort begins to run from the time the individual is injured and not its discovery unless

the running of the limitations period is tolled by Code 1942, § 742 (i.e., fraudulent concealment of a cause

of action). Therefore, if Goleman's claim were classified as an assault it was barred by the statute of

limitations.

¶10. Goleman's surgery was performed on November 29, 1993. The one year statute of limitations began

to run on November 29, 1993, and expired on November 29, 1994. Goleman did not file her complaint

until December 1, 1995. The filing of her complaint on this day well exceeded the applicable one year

statute of limitations. In the alternative, Goleman argues that if the two year statute of limitations enumerated

in Miss. Code Ann. § 15-1-36 (Supp. 1999) applies she would not be barred by the statute of limitations

because she filed her complaint on December 1, 1995, which was within the statute limitations because she

did not "discover" that her appendix was healthy when it was removed until at least December 2, 1993.

Goleman's argument for the filing of her complaint within the two year statute of limitations based on a

medical malpractice action for lack of informed consent is also not persuasive.

¶11. Under Mississippi law, in an action for informed consent, the issue is whether once a reasonably

prudent patient has been informed of the proposed course of treatment and has been fully advised of the

material recognized risks, would they still have consented to the treatment. Herrington v. Spell, 692 So.

2d 93, 98 (Miss. 1997) (citations omitted). In other words, the party gave consent, but the consent is less

than perfect due to a lack of information provided by the doctor. Goleman failed to present credible

admissible evidence that she had a legitimate cause of action based on the claim of lack of informed
consent.

¶12. Goleman did not establish in her affidavits or some other allowed form of evidence what particular

problem with the procedure existed that the doctor had not informed her about, and which, had she known

of that potential risk, she would not have consented to the surgery. Goleman's pleadings and affidavits only

assert vague allegations that the doctor did not inform her of all aspects of the surgery; therefore, it was a

"wrongful operation." Goleman's only tenable claim is that the doctor operated on her without any consent.

¶13. Goleman contended that she did not know she was going to undergo surgery prior to its occurrence.

In Goleman's affidavit dated October 10, 1996, she asserted that any documents signed by her which

consented to the surgery were against her will because she was under the influence of heavy sedation and

"excruciating sickness." This argument brings this Court back to the conclusion that Goleman's claim is for

assault and battery; therefore, the one year statute of limitations applies and her claim is time barred.

Accordingly, we affirm the granting of summary judgment by the trial judge and determine that this issue is

without merit.

¶14. THE JUDGMENT OF THE CIRCUIT COURT OF WINSTON COUNTY IS AFFIRMED.

ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, IRVING, PAYNE, AND

THOMAS, JJ., CONCUR. MOORE, J., NOT PARTICIPATING.