If a patient withdraws consent in the middle of a medical procedure, can the physician face a battery claim simply for continuing?

In Brown v. Davey-Sullivan, 437 So.3d 256 (Aug. 6, 2026), the Mississippi Supreme Court said no—at least not without expert testimony. Adopting the Mims test as a matter of first impression, the Court held that a patient who revokes consent mid-procedure must present expert medical evidence that stopping was medically feasible and would not have caused harm. The Mims test, first adopted in Georgia, has since been adopted in various states, with Mississippi being the latest. For health care providers and the institutions that employ them, the decision offers meaningful protection in time-sensitive clinical scenarios, while reinforcing the importance of thorough consent documentation and real-time clinical judgment.

How Did the Consent Dispute Arise?

Shani Brown sued her obstetrician, Dr. Barbara Davey-Sullivan, after the doctor performed an episiotomy on Brown during the delivery of Brown’s third child. Before labor, Brown signed a consent form authorizing “vaginal delivery with possible laceration/episiotomy repairs” and a “possible cesarean section.” The pregnancy was medically complex, and labor was induced at 37 weeks. As the infant was crowning, Brown objected when the physician announced an episiotomy, but the procedure proceeded.

In her suit, Brown alleged perineal and pelvic-floor injuries, ultimately requiring reconstructive surgery, and asserted informed-consent, battery, privacy, emotional-distress and negligent-supervision claims. She presented no expert medical testimony and did not attach the certificate of expert consultation required by Miss. Code Ann. § 11-1-58. The trial court granted summary judgment on the consent and battery claims and later entered final judgment. The Mississippi Supreme Court, sitting en banc, affirmed.

The Court’s Decision

The court adopted the two-part Mims test as a matter of first impression for claims arising when a patient withdraws consent during an ongoing procedure.

The plaintiff must prove that:

• consent was withdrawn and
• stopping the procedure was medically feasible and would not have been detrimental to the patient.

The first prong may be established without expert testimony when the patient’s words or conduct show a revocation. The second is a medical question requiring expert evidence. Brown’s statement, “Please don’t cut me,” could satisfy the first prong, but she offered no expert proof that the episiotomy could safely have been stopped while the infant was crowning. For Brown, the dispositive gap was not the clarity of her objection, but the absence of medical evidence that the episiotomy could safely be halted at that moment. Summary judgment therefore was proper. The court also treated informed consent as medical malpractice requiring expert proof and identified the missing certificate as an independent ground for judgment.

Until this ruling, Mississippi had not addressed this specific consent issue.

Key Takeaways for Health Care Providers

• Mid-procedure revocation is distinct from true no-consent battery. The court left open whether a claim involving no consent from the outset may proceed without expert testimony; the distinction should be addressed at the pleading and summary-judgment stages.
• Expert evidence is the gatekeeper. Plaintiffs must address the real-time feasibility and safety of stopping; defendants should test that proof early, including whether the record supports a medical-feasibility opinion.
• Consent documentation matters. Forms should clearly describe anticipated procedures and reasonable contingencies, while clinicians should document objections, responses, timing, and the clinical circumstances.
• Consider both patients in obstetric cases. Where care implicates mother and child, evidence concerning competing medical duties may be central to whether cessation was feasible and safe.

Please contact Nash Gilmore, Blake Adams, or any member of the Phelps Health Care team if you have any questions or need advice or guidance.