“Don’t Cut Me”: Why a Withdrawn-Consent Claim Still Needs a Medical Expert

A woman in active labor looks at her obstetrician and says no. She pleads with her not to cut. The doctor performs the episiotomy anyway. Most people hearing those facts assume the case is over before it starts, and that the patient wins.

She lost. Not at trial. She never got there. On August 6, 2026, the Supreme Court of Mississippi affirmed summary judgment for the obstetrician in Brown v. Davey-Sullivan, No. 2024-CA-00693-SCT, because the patient never produced a medical expert. The vote was 6 to 1, and the lone dissent was about appellate jurisdiction, not about the expert rule.

I read this opinion twice, because it settles a question I get from attorneys more often than you would think: when a patient says stop, is that a simple battery case a jury can decide on common sense, or a malpractice case that lives or dies on expert testimony? In Mississippi, the answer is now clear. And the reasoning is likely to travel.

What happened in the delivery room

The facts below come from the patient’s own sworn complaint, as described in the court’s opinion.

• Shani Brown’s third pregnancy was complicated by a fetal umbilical vein varix, gestational diabetes, and hypothyroidism, so labor was induced at 37 weeks.
• Before the induction she signed a consent form covering “vaginal delivery with possible laceration/episiotomy repairs” and a possible cesarean section.
• Labor moved fast, fast enough that her epidural did not give her adequate pain relief.
• As the baby’s head was crowning, the obstetrician said she was going to perform an episiotomy. Ms. Brown said no and begged her not to cut. The physician believed the episiotomy was medically necessary and performed it.
• Ms. Brown alleged ongoing perineal and pelvic floor problems, including the need for reconstructive surgery.

She sued in 2019 for lack of informed consent and for battery, along with other claims against the hospital and a nursing school. She represented herself when the physician moved for summary judgment and offered no expert. She hired counsel afterward, and the new motion argued an expert was unnecessary because the claim was about consent, not care. The trial court disagreed, and so did the Supreme Court.

The rule the court adopted

The informed consent claim was the easy part. Mississippi already treats lack of informed consent as medical negligence, and medical negligence requires an expert.

The battery claim was the real question. The court agreed that a procedure done with no consent at all can be a battery that needs no expert, and it said it could picture such a case. But this was not that case. Ms. Brown had consented in writing, then withdrew consent in the middle of the procedure.

For that situation, the court adopted the test from a 1964 Georgia decision, Mims v. Boland, which courts in Massachusetts, Nebraska, Kentucky, Guam, and others have followed. Under that test, the patient has to prove two things:

1. That she clearly withdrew consent. A lay witness can prove this. Her own testimony that she said “don’t cut me” was enough on this point.
2. That it was medically feasible for the doctor to stop at that moment without endangering the patient’s life or health. That is a medical question, and only a medical expert can answer it.

Here the court added a point that matters in every obstetric case. The physician was caring for two patients, the mother and the baby who was crowning. Any expert addressing whether the doctor could have stopped has to address both.

The court also affirmed on a second, independent ground. Because the claims required an expert, Mississippi’s statute required a certificate of expert consultation with the complaint (Miss. Code Ann. 11-1-58). There was none.

Why this matters beyond Mississippi

Consent cases are attractive because the story is so human. A jury understands “she said no.” The trap is assuming the story carries the case. Once there is a signed consent form and a withdrawal mid-procedure, the fight moves to medical feasibility, and that fight is won or lost with expert testimony.

It cuts both ways, which is why I want both sides of the bar to read this one.

• For the patient’s counsel: plead it, retain for it, and certify it like a malpractice case from day one. Do not build the case on the theory that a battery count gets you past the expert requirement. In Ms. Brown’s case, that theory ended the claim.
• For defense counsel: this is a clean summary judgment path when the plaintiff has no expert on feasibility. When the plaintiff does have one, the case turns on the minute-by-minute record of the delivery, so your own expert needs that record early.

Episiotomy is a good test case for this rule. ACOG’s Practice Bulletin No. 198 (2018) favors restrictive use of episiotomy over routine use. So a qualified expert can speak to when it is actually indicated, and whether this one was. That is exactly the testimony the court said was missing.

What an expert needs to answer the feasibility question

If you are evaluating a withdrawn-consent claim, from either side, these are the records I would want in front of the expert before anyone forms an opinion:

1. Every signed consent form, plus the nursing documentation of the consent discussion. The wording matters. In Brown, the court read consent to “episiotomy repairs” as consent to the episiotomy itself.
2. The fetal heart rate tracing for the final stage of labor. Whether the baby was showing distress at the moment of the decision is often the center of the feasibility analysis.
3. The delivery note and operative note, including the documented indication for the procedure and the time it was performed.
4. Labor and delivery nursing flow sheets, which may record the patient’s words, the timing of crowning, and who was in the room.
5. The anesthesia record, to show the patient’s pain control and what alternatives were realistic at that point.
6. Newborn records, including Apgar scores and any resuscitation, which speak to the condition of the second patient.
7. Postpartum and follow-up records for the laceration classification, repair, and any later pelvic floor treatment or reconstructive surgery, which drive causation and damages.

The right expert for most of these cases is a board-certified obstetrician who still delivers babies. Depending on the issues, a labor and delivery nurse expert can address documentation and the nursing role in the consent process, and a urogynecologist or colorectal surgeon can address long-term injury.

How Med Legal Pro helps

Med Legal Pro connects attorneys with qualified medical and nursing experts for medical malpractice, personal injury, nursing home, and wrongful death cases. We work with plaintiff, defense, and criminal counsel. If you have a consent case, or any case where the medical question will decide the outcome, we can match you with an expert who can review the records, address feasibility and causation, and prepare for the questions opposing counsel will ask.

Call 844-633-5345 or submit your case for a prompt review.

Sources

• Brown v. Davey-Sullivan, No. 2024-CA-00693-SCT (Miss. Aug. 6, 2026)
• Mims v. Boland, 138 S.E.2d 902 (Ga. Ct. App. 1964)
• Miss. Code Ann. 11-1-58 (certificate of expert consultation)
• ACOG Practice Bulletin No. 198, Prevention and Management of Obstetric Lacerations at Vaginal Delivery (2018)

This article is for informational purposes only and is not legal or medical advice. The facts described are allegations as summarized in the court’s opinion. Consult qualified counsel and a qualified medical expert about the specific facts of any case.