IN THE STATE OF SOUTH CAROLINA
In the Court of Appeals
APPEAL FROM CHARLESTON COUNTY
Court of Common Pleas
Mikell R. Scarborough, Master-In-Equity
Case No. 2004-CP-10-1001
Nitus Joanne Linog, Appellant,
Mark Yampolsky, D.D.S. and
Eloise Bradham, M.D. Respondents.
FINAL BRIEF OF RESPONDENTS
TABLE OF CONTENTS
TABLE OF AUTHORITIES.............................................................................................. ii
STATEMENT OF THE ISSUES ON APPEAL................................................................ ii
STATEMENT OF THE CASE.......................................................................................... 2
STATEMENT OF FACTS................................................................................................. 2
I. BECAUSE LINOG CANNOT, AS A MATTER OF LAW, PROVE A CAUSE OF ACTION SOUNDING IN MEDICAL BATTERY FOR AN ALLEGED REVOCATION OF CONSENT DURING SURGERY, THE LOWER COURT’S RULING WAS PROPER........ 2
A. Linog’s claim of medical battery requires proof by medical expert testimony and she has none. 2
B. There is no precedent in South Carolina law supporting a claim for medical battery based on a patient’s withdrawal of consent during surgery, nor is there any evidence that Linog effectively withdrew her consent under the law on which she relies (Mims v. Boland)................................................... 2
CERTIFICATE OF COUNSEL..................................................................................... 2
TABLE OF AUTHORITIES
Banks v. Medical Univ. of South Carolina, 314 S.C. 376,
... 444 S.E.2d 519 (1994).............................................................................................. 7, 12
Botehlo v. Bycura, 282 S.C. 578, 320 S.E.2d 59 (Ct. App. 1984)..................................... 6
Bramlette v. Charter-Medical Columbia, 302 S.C. 68, 393 S.E.2d 914 (1990).................. 6
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986)... 15
Church v. Perales, 39 S.W.3d 149 (Tenn. Ct. App. 2000)............................................ 9, 10
Cobbs v. Grant, 502 P.2d 1 (Cal. 1972)............................................................................ 11
Coulter v. Thomas, 33 S.W.3d 522 (Ky. 2000)........................................................... 18, 19
David v. McLeod Reg’l Med. Ctr., 367 S.C. 242, 626 S.E.2d 1 (2006)............................ 6
Harvey v. Strickland, 350 S.C. 303, 311, 556 S.E.2d 529, 534 (2002).................. 7, 11, 12
Hively v. Higgs, 253 P. 363 (Ore. 1927)........................................................................... 11
Hook v. Rothstein, 281 S.C. 541, 316
... S.E.2d 690, 697 (S.C. App. 1984).............................................................. 6, 7, 9, 11, 12
Jernigan v. King, 312 S.C. 331, 440 S.E.2d 379, 381 (Ct. App. 1983).............................. 6
Mims v. Boland, 138 S.E.2d 902, (Ga. Ct. App. 1964)........................ 7, 11, 15, 16, 18, 19
Montgomery v. Bazaz-Sehgal, 742 A.2d 1125 (Pa. Super 1999)................................. 9, 10
Pederson v. Gould, 288 S.C. 141, 341 S.E.2d 633 (1986)................................................. 6
Thompkins v. Festival Centre Group, 306 S.C. 193, 194,
... 10 S.E.2d 593, 593-594 (Ct. App. 1991)...................................................................... 14
Welch v. Whitaker, 282 S.C. 251, 317 S.E.2d 758 (S.C. App. 1984)................................ 6
S.C. Code Ann. §44-66-10 et seq. (Supp. 2005)............................................................... 15
STATEMENT OF THE ISSUES ON APPEAL
Did the lower court properly
conclude that, as a matter of law, Linog cannot prove her cause of action in South Carolina sounding in medical battery for a patient’s alleged revocation of consent
STATEMENT OF THE CASE
On April 27, 2001, Dr. Mark Yampolsky, a periodontist, performed a procedure on the Plaintiff, Nitus Joanne Linog (“Linog”), known as osseous gum surgery. The procedure was performed under sedation administered by Dr. Eloise Bradham, an anesthesiologist. On March 2, 2004, Linog brought a malpractice action against Dr. Yampolsky and Dr. Bradham, alleging that she suffered a herniated cervical disc during the procedure. Dr. Bradham answered the Complaint on April 8, 2004. Dr. Yampolsky answered on April 14, 2004. They denied any negligence in connection with their treatment of Linog and denied any causal connection between their treatment and any alleged injury.
On November 16, 2004, Linog made a motion to amend the Complaint to set forth a claim for “medical battery” based on her alleged withdrawal of consent during the course of the surgical procedure. The motion was granted by Order of the Honorable Mikell R. Scarborough, Master-In-Equity, dated April 14, 2005. Linog filed her Amended Complaint on April 20, 2005, setting forth causes of action for medical malpractice and medical battery. Dr. Yampolsky and Dr. Bradham answered the Amended Complaint, again denying any liability.
On May 20, 2005, Dr. Yampolsky filed a motion for summary judgment. Dr. Bradham filed a motion for summary judgment on May 26, 2005. The motions were supplemented with additional grounds in advance of the hearing on the motions held November 7, 2005. These motions were also heard by Judge Scarborough. By written order dated November 21, 2005, summary judgment was granted in favor of Dr. Yampolsky and Dr. Bradham on the malpractice cause of action based on Linog’s failure to provide any expert testimony in support of the claim. The order granting summary judgment on the malpractice cause of action is not at issue in this appeal.
Judge Scarborough initially denied the motions for summary judgment on the medical battery cause of action. On December 7, 2005, Dr. Yampolsky and Dr. Bradham jointly filed a motion for reconsideration of the ruling. After hearing arguments on January 30, 2006, Judge Scarborough granted the motion by written order dated March 15, 2006.
The Notice of Intent to Appeal was filed and served on April 11, 2006.
STATEMENT OF FACTS
This case arises out of osseous gum surgery performed by Dr. Yampolsky in his office on April 17, 2001. Osseous surgery involves making an incision in the gum between the bone and the tooth, separating the gum from the bone, and exposing the root and the bone structure for access to remove infection, infected tissue, infected bone, calculus debris, plaque debris, irregular bony contours, and irregular root contours. (R. pp. 185-187). Intravenous sedation was provided by Dr. Bradham. The treatment was performed under sedation because, as Linog acknowledges, she is a “dental phobic.” (App. Br. p. 2). Also present was Dr. Yampolsky’s assistant, Michele Olaes. (R. p. 292, line 25 – p. 293, line 11). Linog’s wrists were loosely restrained during the procedure in order to keep her hands away from her mouth and to keep the IV line intact. (R. pp. 166 -167; pp. 294, line 24 - 295, line 4). No other restraints were used. (R. p. 165, line 1 – p. 166, line 2). Dr. Bradham administered a combination of anesthetic agents: Versed, Nubain, and Propofol. (R. pp. 244, line 17 - 245, line 21). One of the effects of these medications is that the patient is considered “legally drunk.” (R. p. 245). Linog has no memory of the gum surgery, which is consistent with the use of Versed. (R. p. 106, lines 4-8; p. 241, lines 16-21).
The procedure was scheduled to last approximately four hours and was supposed to include all four quadrants of Linog’s mouth. (R. p. 122, lines 5-10; p. 156, lines 15-18). This was a difficult sedation. (R. p. 267, lines 9-11). Because of agitation and movement on Linog’s part, the procedure was interrupted on several occasions to allow her to settle down on her own or to re-sedate her. (R. p. 155, lines 17-21; p. 164, lines 2-19). Only one quadrant was completed in approximately three and a half hours. (R. p. 156, lines 22-24; p. 264, lines 12-14). The procedure was terminated at that point. (R. p. 169, lines 19-25). In this lawsuit, she claims that she sustained a herniated cervical disc from the surgery. (R. p. 89, lines 15-19). The procedure was done on a Monday afternoon and Linog returned to her job as a waitress on Wednesday and was able to work her normal hours. (R. p. 106, line 9-19; p. 107, lines 11-18). She continued to work and did not seek any medical attention for her alleged injuries until three months later. (Supp. R. p. 4, lines 14-17; p. 5, lines 1-3).
No expert witness was designated by Linog on the issues of standard of care, breach of the standard of care, or causation. With regard to causation, she was seen by two neurosurgeons, Dr. Brian Cuddy and Dr. Joseph Marzluff. Dr. Cuddy operated on her cervical spine. (R. p. 302, lines 3-15). Dr. Marzluff saw her once prior to her neck surgery for a second opinion. (R. p. 306, lines 1-2). Neither testified that Linog’s cervical spine was injured during the gum surgery. (R. p. 301, lines 3-10; R. p. 307, lines 7-11). Both testified that her condition was most likely related to a degenerative problem. (R. p. 303, line 24 – p. 304, line 10; p. 308, lines 15-25). Dr. Yampolsky also testified that Linog was not injured during the procedure. (R. p. 189, lines 5-14).
After conducting discovery, Linog added a cause of action for “medical battery.” The theory of the medical battery claim is the continuation of the procedure after revocation of consent. (App. Br. p. 6). In support of her claim, Linog relies on descriptions of her behavior by Dr. Yampolsky, some of which are noted above, and testimony from Dr. Bradham that she uttered words like “go away,” “stop,” and “let me out of here.” (App. Br. p. 4). However, Dr. Bradham explained that: “She was just generally muttering. Patients do this as they are coming up out of anesthesia, this is common.” (R. p. 267, lines 2-5). “Sometimes it was just gibberish.” (R. p. 266, lines 4-5). It was not a protest against the procedure. (R. p. 266, lines 6-8). “It wasn’t an intense thing.” (R. p. 266, line 11). No expert testimony was offered to establish Linog’s withdrawal of consent under the circumstances, her competency to do so, or the feasibility of stopping the procedure.
More than a year after the suit was filed, the doctors moved for summary judgment. (R. p. 21; p. 24). The court initially granted summary judgment on the malpractice claim on the ground that Linog did not have any expert testimony that either doctor breached the standard of care, or that any of the breach of the standard of care was a proximate cause of her injury. The court ruled that the common knowledge exception to the expert testimony requirement was inapplicable to both this surgery and the administration of the anesthesia and that causation was also an issue that did not fall within the common knowledge exception. (R. pp. 6-9). The order granting summary judgment on the malpractice cause of action has not been appealed.
Citing the testimony of Dr. Yampolsky and Dr. Bradham, the court denied the motion for summary judgment on the medical battery cause of action. (R. pp. 6-9). Dr. Yampolsky and Dr. Bradham subsequently filed a motion for reconsideration. (R. p. 18). Among other things, the doctors argued: 1) the lack of expert testimony; 2) case law requiring that the patient must have used language which is subject to no other inference and which must have come from a clear and rational mind; 3) the lack of evidence that she was competent to withdraw her consent; 4) case law requiring that expert testimony establish the feasibility of terminating the procedure without termination being detrimental to the patient’s health; and 5) the viability of a cause of action for medical battery based on withdrawal of consent under South Carolina law. (R. pp. 10-17). The court agreed that expert testimony would be necessary to satisfy the requirements for a medical battery claim under the facts of this case and granted the motion for reconsideration, thereby ending this lawsuit in its entirety. (R. pp. 1-5).
I. BECAUSE LINOG CANNOT, AS A MATTER OF LAW, PROVE A CAUSE OF ACTION SOUNDING IN MEDICAL BATTERY FOR AN ALLEGED REVOCATION OF CONSENT DURING SURGERY, THE LOWER COURT’S RULING WAS PROPER.
A. Linog’s claim of medical battery requires proof by medical expert testimony and she has none.
Historically, South Carolina law has long required and depended upon expert testimony in the medical malpractice setting. Plaintiffs in a medical malpractice action must establish by expert testimony both the required standard of care and the physicians’ failure to conform to the standard. Jernigan v. King, 312 S.C. 331, 440 S.E.2d 379, 381 (Ct. App. 1983); Pederson v. Gould, 288 S.C. 141, 341 S.E.2d 633 (1986); Botehlo v. Bycura, 282 S.C. 578, 320 S.E.2d 59 (Ct. App. 1984); Welch v. Whitaker, 282 S.C. 251, 317 S.E.2d 758 (S.C. App. 1984). As a general rule, expert testimony is also required to establish proximate cause. David, supra; Bramlette v. Charter-Medical Columbia, 302 S.C. 68, 393 S.E.2d 914 (1990); Botehlo, supra (holding summary judgment appropriate where there is no genuine issue of material fact unless the plaintiff presents expert testimony on the standard of care and its breach by the defendant); (see also, R. pp. 6-9). Furthermore, in cases involving informed consent, South Carolina law requires that the patient provide expert testimony to establish that the physician/medical provider failed to adequately disclose risks associated with a procedure in obtaining the patient’s informed consent, just as medical expert testimony is required to prove that the physician failed to treat or properly diagnose. Welch v. Whitaker, 282 S.C. 251, 317 S.E.2d 758 (S.C. App. 1984); Hook v. Rothstein, 281 S.C. 541, 316 S.E.2d 690, 697 (S.C. App. 1984).
Linog has no expert witness in this case. In her claim for medical battery, she is asking the Court to adopt a new and entirely different standard of law, one that would open the door to allowing lay people to second-guess the decision making of highly trained professionals absent any standards or context and one that was explicitly considered and rejected in the context of informed consent cases. Hook, supra. “Undoubtedly, such a lesser standard would subject the medical profession to an endless possibility of harassment, where treating physicians and medical practitioners would face potential punishment from their patients in every case where their examination or treatment results in less than complete success.” Mims v. Boland, 138 S.E.2d 902, (Ga. Ct. App. 1964). In explicitly rejecting the lay standard, the Hook court stated, “[T]he physician’s chief concern when treating a patient should be the patient’s best interests and not what a lay jury, untrained in medicine and employing perfect hindsight, might later conclude he or she should have disclosed.” Id. at 697-698. Plaintiff’s theory of liability in this case would produce precisely the same undesirable result.
Linog’s failure to meet her burden of establishing expert testimony was held to be fatal to her initial negligence claim. (See, R. pp. 6-9). In her medical battery claim, which is the subject of this appeal, Linog, likewise, has failed to identify any expert witnesses and has failed to provide any medical expert testimony concerning: (1) what the standards of care for Drs. Yampolsky and Bradham were for this procedure; (2) whether Dr. Yampolsky and Dr. Bradham breached their respective standards of care; (3) whether any alleged breach of the standard of care by Dr. Yampolsky or Dr. Bradham was a proximate cause of Linog’s alleged injury; or (4) whether Linog suffered any damages as a result of the purported breach.
A cause of action for medical battery has been explicitly limited to certain circumstances and may only be alleged in South Carolina stemming from a physician’s failure to obtain proper consent. See Harvey v. Strickland, 350 S.C. 303, 566 S.E.2d 529 (2002); Banks v. Medical Univ. of South Carolina, 314 S.C. 376, 444 S.E.2d 519 (1994), and Hook, supra, at 316 S.E.2d 690, 700. (“Thus, the battery theory is applicable either where the physician performs a procedure to which the patient has not consented or where the patient gives permission to perform one type of procedure and the physician performs another.”). It follows then that the failure to identify an expert to prove a failure to obtain informed consent process renders a cause of action for medical battery untenable. Therefore, Dr. Yampolsky and Dr. Bradham submit that even in a light most favorable to Linog, she cannot maintain a medical battery cause of action since there is no medical expert testimony establishing that Dr. Yampolsky and Dr. Bradham failed to obtain proper consent or that such a failure proximately caused her any compensable damages.
Not only is medical expert testimony required to show Dr. Yampolsky and Dr. Bradham failed to properly obtain Linog’s consent prior to surgery, Linog must also present medical expert testimony to establish that it is medically possible for Linog to overcome the effects of I.V. sedation and effectuate the revocation of her consent under the facts of this case. Linog’s claim for medical battery is based on a presumption that she was actually capable of withdrawing her consent in the midst of the procedure and while under I.V. sedation. However, Linog has no evidence, expert or lay, which would tend to demonstrate she was at all competent to make this decision while under the effects of the anesthetic agents, including narcotics. On the contrary, the evidence shows that based on the combination of anesthetic agents used, Linog would have been considered “legally drunk” for 24 hours following the procedure. (See, R. p. 245, lines 1-4). Further, Dr. Bradham testified it is her practice to instruct her patients not to drive or sign any legal documents during this period, and that she informed the Linogs of this on this occasion. Id.; (see also, R. p. 282, lines 17-22). Linog has failed to show through medical expert testimony that she could effectuate the withdrawal of consent while under I.V. sedation. This is an essential element of her claim, and, without the requisite evidence, the lower court properly dismissed the medical battery claim as a matter of law.
In her initial brief, Linog misinterprets the position taken by Dr. Yampolsky and Dr. Bradham concerning the requirement of medical expert testimony in medical battery cases. It is true some courts, all of which are in foreign jurisdictions, have held that no expert testimony is required in a medical battery context to determine whether consent was initially obtained. See Church v. Perales, 39 S.W.3d 149 (Tenn. Ct. App. 2000); Montgomery v. Bazaz-Sehgal, 742 A.2d 1125 (Pa. Super 1999). However, each of these cases is readily distinguishable from the case on appeal.
In Church, summary judgment dismissing the patient’s medical battery claim was affirmed because the procedure that was performed (exploratory laparotomy) was consistent with the type of procedure authorized by the patient. The Church court defined medical battery in a way that is similar to how it was defined in Hook v. Rothstein: “[A] medical battery involves a physician performing a procedure that the patient did not know the physician was going to perform or a physician performing a procedure on a part of the body other than the one described to the patient.” Church, 39 S.W.3d at 159. The Church court cited the patient’s own awareness and first-hand knowledge as rationale for being able to claim medical battery without the support of expert medical testimony. Such rationale is limited however, and inapplicable to the subject case. The rationale in Church addresses the purely factual issue of whether informed consent was properly administered prior to the surgery, and whether the surgery that was performed was consistent with what was consented to prior to surgery. Church, however, does not involve a claim based on an alleged withdrawal of consent during surgery, coupled with the physician’s continued treatment. In a scenario involving a medical battery based on an alleged withdrawal of consent during an operative procedure in which the patient is under I.V. sedation, medical expert testimony must be offered to prove that the patient’s alleged revocation of consent was medically feasible.
In Montgomery, the patient alleged medical battery because the doctor inserted a penile prosthesis without the patient’s permission. Medical battery was a proper cause of action because it was grounded in a lack of consent: the patient went in for an outpatient surgery involving the clearing out of plaque blockage. The patient never consented to even the possibility of the doctor’s insertion of a prosthesis in this surgery. The doctor performed a procedure which was outside the scope of what was consented to by the patient prior to surgery. Like Church, this case did not involve an alleged withdrawal of consent during surgery as grounds for medical battery. The patient’s awareness of waking after surgery was completed with a prosthesis inserted into his body was enough to convince the Montgomery court that expert testimony was not required. Again, the case on appeal is distinguishable in that there is no lack of informed consent, based on what surgery was performed and its relation to the procedure to which the patient consented.
In the subject case, Linog had full first-hand knowledge and awareness of the osseous gum surgery that Dr. Yampolsky was going to perform. It is uncontroverted that Dr. Yampolsky performed an osseous gum surgical procedure. The complications and risks associated with this periodontal procedure, including the potential risks associated with I.V. sedation, were clearly consented to by Linog prior to surgery and Linog does not contend, nor does she have any evidence, to the contrary. Dr. Yampolsky and Dr. Bradham submit that expert testimony is required to prove the patient effectively withdrew her consent in the midst of the procedure and while sedated. Linog admits that she has no first-hand knowledge or awareness of her alleged withdrawal. Therefore, Linog has the burden of presenting expert medical testimony that she had the capacity to withdraw consent, in addition to presenting testimony, expert or lay, that she revoked her consent in an uncontroverted and unambiguous manner.
B. There is no precedent in South Carolina law supporting a claim for medical battery based on a patient’s withdrawal of consent during surgery, nor is there any evidence that Linog effectively withdrew her consent under the law on which she relies (Mims v. Boland).
1. Linog’s claims do not comport with South Carolina’s cause of action for medical battery.
Although South Carolina law recognizes a medical malpractice cause of action for a physician’s failure to procure a patient’s informed consent prior to surgery, our courts have never concluded that a cause of action for medical battery exists for a patient’s alleged revocation of consent during a surgical procedure and while under anesthesia. See, Harvey v. Strickland, 350 S.C. 303, 311, 556 S.E.2d 529, 534 (2002) (citing Hook v. Rothstein, 281 S.C. 541, 316 S.E.2d 690 (Ct. App. 1984)).
In Hook v. Rothstein, supra, this Court limited the applicability of a medical battery action to two specific scenarios: “[T]he battery theory is applicable either where the physician performs a procedure to which the patient has not consented or where the patient gives permission to perform one type of procedure and the physician performs another. Cobbs v. Grant, 502 P.2d 1 (Cal. 1972); see also Hively v. Higgs, 253 P. 363 (Ore. 1927) (where a patient consented to a nose operation and the surgeon removed her tonsils instead). The battery theory has no application where the patient gives his or her consent to a particular procedure and an undisclosed inherent complication with a low probability occurs when the physician undertakes to perform it.” Hook, 316 S.E.2d at 700-701.
Realizing her inability to meet the burden of proof required by South Carolina law under the South Carolina Supreme Court’s decision in Harvey, Linog offers her own unique spin on this cause of action by arguing she subsequently withdrew her consent during the course of the procedure. There is no basis for such a claim under South Carolina law.
While there may be a viable cause of action for medical battery as the result of a physician’s failure to obtain proper consent prior to surgery, Linog has not asserted, nor can she show, Dr. Yampolsky and Dr. Bradham failed to obtain Linog’s informed consent prior to the procedure. Id. citing Banks v. Medical Univ. of South Carolina, 314 S.C. 376, 444 S.E.2d 519 (1994) (emphasis added); see also, (R. p. 91, lines 2-4; pp. 93-96, line 4). In fact, Linog explicitly concedes in her Brief to this Court that there is no issue with regard to Dr. Yampolsky and Dr. Bradham obtaining proper consent prior to the surgery. “[T]he failure to obtain initial consent is not the subject of this Appeal.” (App. Br. p. 5). Without any evidence of a failure during the informed consent process, Linog simply cannot meet her burden under Harvey or its progeny. See, Banks, Harvey and Hook, supra.. Therefore, the trial court properly granted summary judgment on Linog’s cause of action for medical battery.
Linog seeks to expand the cause of action for medical battery by creatively arguing that she withdrew her consent during the course of the dental surgery, while under I.V. sedation. At the original hearing on the Respondents’ Motions for Summary Judgment, Linog relied on the deposition testimony of Dr. Bradham to attempt to create an issue of fact for this novel argument. Linog argued that Dr. Bradham testified that during the procedure the Linog muttered the phrases: “stop”; “go away;” and “Let me out of here.” (R. p. 265, lines 15-16). In the court’s initial decision denying Dr. Yampolsky’s and Dr. Bradham’s Motions for Summary Judgment, the court presumably concluded that this testimony was sufficient to create an issue of fact as to whether Linog withdrew her consent during the procedure. See, (R. pp. 6-9).
However, Linog’s piecemeal presentation of her deposition testimony did not accurately reflect the testimony of Dr. Bradham on this issue. Within the very same line of questioning regarding these “mutterings,” Dr. Bradham went on to testify that Linog’s utterances while under sedation were “gibberish. ” Dr. Bradham specifically denied characterizing them as protests against the procedure. Dr. Bradham further testified, “She didn’t appear to be resisting the procedure.” (R. p. 266, lines 20-21; p. 269, lines 2-3). In Dr. Bradham’s experience as an anesthesiologist, she went on to testify that such “mutterings” are common for patients regaining consciousness after sedation. (R. p. 267, lines 2-5).
Furthermore, Linog cannot offer any first-hand knowledge that she protested or withdrew against the procedure. In fact, she was asked repetitively at her deposition regarding whether she had any recollection of the procedure once it had commenced:
Q: Once the IV line was started, what happened next?
A: I woke up.
Q: So that’s the last thing you remember then is having the IV put in your hand and presumably the medication – anesthesia took over and you were kind of in a semi state of consciousness?
A: I don’t know. I woke up and it was over.
Q: So you don’t remember anything then from the time the IV was put into the back of your hand until the time the procedure was completed?
A: No, sir.
Q: Okay. You don’t recall waking up in the middle of the procedure, anything like that?
A: No, sir. (R. p. 100, lines 3-19).
In sum, the record is devoid of any real evidence demonstrating that Linog withdrew her consent, or even protested against the procedure. Linog’s misplaced reliance on only selected “sound bytes” of Dr. Bradham’s testimony falls woefully short of creating a “genuine” question of material fact as to whether Linog withdrew her consent during the procedure. Summary judgment is appropriate in those cases in which plain, palpable and undisputable facts exist on which reasonable minds cannot differ. It is not sufficient that one can create an inference which is not reasonable or an issue of fact that is not genuine. Thompkins v. Festival Centre Group, 306 S.C. 193, 194, 410 S.E.2d 593, 593-594 (Ct. App. 1991).
To the contrary, the evidence taken as a whole and in the light most favorable to Linog, demonstrates Linog did not “resist” or “protest against” the procedure, much less withdraw her consent. Accordingly, summary judgment is mandated. The United States Supreme Court has held that Rule 56 mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of every element essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986).
2. Linog’s claims fail under the out of state precedent she is seeking to invoke.
Because Linog implicitly concedes her claim for medical battery is without basis under South Carolina law, she is seeking to invoke precedent from other jurisdictions. However, her claim also fails under the very law upon which she relies, Mims v. Boland, 138 S.E.2d 902 (Ga. Ct. App. 1964). Under Mims, two distinct factors are required to constitute an effective withdrawal of consent as a matter of law after treatment is in progress, which would subject medical practitioners to liability for battery if treatment is continued:
(1) the patient must act or use language which can be subject to no other inference and which must be unquestioned responses from a clear and rational mind. These actions and utterances of the patient must be such as to leave no room for doubt in the minds of reasonable men that in view of all the circumstances consent was actually withdrawn; and
(2) when medical treatments or examinations occurring with the patient’s consent are proceeding in a manner requiring bodily contact by the physician with the patient and consent to the contact is revoked, it must be medically feasible for the doctor to desist in the treatment or examination at that point without the cessation being detrimental to the patient’s health or life from a medical viewpoint. Id. (emphasis added).
Further, the plaintiff carries the burden of proving both of these essential conditions, and “with regard to the second condition, it can only be proved by medical evidence as medical questions are involved.” Id. (emphasis added).
(a) Linog Fails the First Prong Under Mims v. Boland.
Linog is unable to prove that any of her utterances or physical movements are subject to only one inference, namely that she withdrew her consent. It is uncontroverted Linog did not have a clear and rational mind while sedated during the procedure as Linog has failed to offer any evidence to contradict the testimony of Dr. Bradham that Linog would have been legally drunk for 24 hours after the procedure.
Further, even in a light most favorable to Linog and assuming arguendo Linog could point to some evidence indicating she was of a rational mind during the time her counsel now claims she withdrew her consent, there is ample doubt as to whether consent was actually withdrawn. The Mims standard requires Linog to leave “no room for doubt” to constitute an effective withdrawal. Dr. Bradham’s own testimony denying Linog’s utterances and/or physical movements were a protest to the procedure creates more than sufficient doubt.
(b) Linog Also Fails the Second Prong Under Mims v. Boland.
The record is void of any expert testimony (or even lay testimony) indicating whether it was “medically feasible” for the doctors to stop the procedure, subsequent to Linog’s mutterings/alleged protests. Linog’s inability to produce such expert testimony is the death-knell to her case surviving dismissal as a matter of law. Even in the most generous light to Linog and assuming arguendo that Linog’s utterances and movements were deemed protests to satisfy Mims’ first prong, she cannot satisfy this requirement. First, as a threshold matter, Linog cannot establish the moment in time as to when she even made the alleged withdrawal, much less establish that is was medically feasible to stop at that point.
Q: All right. Can you tell me how long it was from the time you first observed combativeness until you decided to discontinue the procedure?
A: I can’t.
(R. p. 163, lines 11-14).
Second, Linog has no medical expert to confirm it was medically feasible to terminate the procedure sooner than they actually did without jeopardizing the health of the patient.
The record shows that this periodontal procedure was a four quadrant osseous surgery. The surgical technique called for the gum to be incised between the bone and the tooth. (R. pp. 185-186). Further, it is undisputed Dr. Yampolsky completed surgery on just one of the four quadrants prior to the cessation of the procedure. Linog has no medical expert testimony to demonstrate when or if it was medically feasible to stop such an invasive surgical procedure. On the contrary, the record includes the following sworn testimony from Dr. Yampolsky:
Q: Did it take you the full three and a half hours to decide it wasn’t going to work or were you concerned – when were you first concerned that the procedure –
A: Well I –
Q: -- that the patient wasn’t right for the procedure or the anesthesia wasn’t right or something, whatever it was?
A: If it became apparent to me, again, that I was not going to be able to finish what I had planned, given the amount of time that was left, that’s when I would have decided to terminate.
A: I can’t start – you know, I can’t start a procedure and not finish it.
Q: Well, you did start a procedure and not finish it.
A: I’m talking about I couldn’t initiate treatment on a quadrant and not complete that quadrant.
(R. p. 171, lines 6-25).
Linog now also seeks to rely on the reasoning in Coulter v. Thomas, 33 S.W.3d 522 (Ky. 2000). However, that case is also readily distinguishable from the instant case. In Coulter, the patient based her battery claim on the medical practitioner’s continued use of an automatic blood pressure cuff on the patient’s arm during eye surgery. Id., 33 S.W.3d at 523. The patient complained that the inflating of the cuff was painful, and she made uncontroverted statements during surgery to have the cuffs removed. Id. The cuffs were inflated subsequent to her protests, and she was later found to have hemorrhaged blood vessels in her arm, allegedly caused by the cuffs’ inflation. Id. Eventually, however, during the surgery, the cuffs were removed pursuant to her request. Id.
Coulter differs significantly from this case because, in Coulter, the patient was not sedated when she made her protests, and her statements requesting removal of the cuffs were found to be unquestioned responses from a clear and rational mind (consistent with the first prong in Mims). Regarding the second prong of the Mims analysis, the Coulter court concluded, at least by inference, that it was medically feasible to take such action without the cessation being detrimental to the patient’s health because the medical practitioners actually removed the cuffs and continued with the surgery. Therefore, in Coulter, the patient did not need to produce medical expert testimony to prove the second prong in Mims and thereby create a question for the jury. In the present case, there is no evidence that Linog’s statements made while under I.V. sedation rose to the level of an unequivocal withdrawal of consent or that cessation of the procedure was medically feasible at the time of the alleged “protests.”
Finally, it is important to emphasize that Linog’s ability to satisfy the Mims factors is a question of law, not fact; and Linog cannot meet her burden under the very precedent she cites as authority to proceed under this dubious theory.
For the foregoing reasons, Dr. Yampolsky and Dr. Bradham respectfully request this Court affirm the decision of the lower court concluding there is no genuine issue of fact for trial as to Linog’s medical battery cause of action.
November _____, 2006
Charleston, South Carolina
CERTIFICATE OF COUNSEL
The undersigned certifies that this Initial Brief of Respondents complies with Rule 211(b), SCACR.
November _____, 2006
Charleston, South Carolina
 Bradham and her expert anesthesiologist, Dr. Charles Wallace, testified the problem with the sedation resulted from Linog’s use of marijuana on the day of the procedure. (R. p. 223, lines 11-25; p. 271, lines 17-23; pp. 313-314). Dr. Bradham testified that after the procedure terminated, Linog told her she had smoked marijuana the morning of surgery. (R. p. 223, lines 19-25; p. 271, lines 3-11). Linog, a long-time marijuana user, would only acknowledge having smoked marijuana on the Friday night before this Monday afternoon procedure. (R. p. 97, lines 2-9).
 At the motion for reconsideration hearing and in his Order dismissing Linog’s medical battery claim, Judge Scarborough relied additionally on a recent South Carolina Supreme Court decision, David v. McLeod Reg’l Med. Ctr., 367 S.C. 242, 626 S.E.2d 1 (2006), affirming summary judgment on grounds that appellant’s expert affidavit was insufficient to prove medical malpractice, as it failed to set forth standard of care.
 Dr. Yampolsky and Dr. Bradham do not concede that the Mims case is binding in this jurisdiction, but discuss it herein merely for purposes of distinguishing its application to the facts of this case.
 As referenced by Judge Scarborough in the motion for reconsideration hearing, this standard is consistent with the South Carolina Adult Health Care Consent Act (Consent Act), S.C. Code Ann. §44-66-10 et seq. (Supp. 2005), which limits a health care provider’s authority to perform medical services only when it does not run contrary to the patient’s “unambiguous and uncontradicted instructions.” S.C. Code §44-66-60(B)(emphasis added). Dr. Yampolsky and Dr. Bradham do not concede this Act is necessarily controlling to the instant factual scenario, but rather cite it for purposes of guidance in that South Carolina law requires specific communications that a patient must exercise regarding consent to a medical procedure in other contexts.