MolÉ v. Jutton, No. 126, September Term, 2002 (Md. App. 4/13/2004)
Decision Date | 13 April 2004 |
Docket Number | No. 126, September Term, 2002.,126, September Term, 2002. |
Parties | Tasha Molé v. Jerrilyn Jutton, et al. |
Court | Court of Special Appeals of Maryland |
Opinion by Bell, C.J.
The issue we decide in this case is what is the proper cause of action when, in the course of performing a surgical procedure, a surgeon exceeds the consent he or she was given. Maintaining that the tort of battery is the proper cause of action, the appellant, Tasha Molé, in addition to a negligence claim, included a count for battery in the complaint she filed in the Circuit Court for Anne Arundel County against the appellees, Dr. Jerrilyn Jutton, ("Dr. Jutton"), Dr. George E. Linhardt, and Dr. Jutton's employer, Linhardt Surgical Associates, P.A. and, at the conclusion of the trial, requested the trial court to instruct the jury as to that count. The trial court declined to do so. The appellant challenges that ruling on this appeal. We shall affirm the judgment of the Circuit Court.
I.
Tasha Molé, the appellant, consulted a doctor, after experiencing pain in her left breast, in which she also discovered a lump. She was referred for a sonogram of her breast, the results of which revealed that the appellant had two tender masses in her left breast, one of which was determined to be a "simple cyst," i.e. a fluid filled sac, and the other a "complex cyst containing a mural nodule."1 As to the latter, a biopsy was "suggested," due to the possibility of malignancy.
On her doctor's advice, the appellant consulted a surgeon, the appellee, Dr. Jutton, who was employed by Linhardt Surgical Associates, P.A., with respect to how best to proceed with regard to the cysts. Having initially attempted to aspirate2 the cysts to determine if they were cancerous, but finding that "she was too tender for me to aspirate,"with a needle, Dr. Jutton determined that "the best way to proceed would be a surgical procedure to remove the solid nodule."
In preparation for the surgery, Dr. Jutton informed the appellant of the risks involved, including post-operative infection. The appellant consented to the expected procedure, "excision breast mass left." She also agreed:
Thus, the appellant consented to any necessary extension of the surgery or to any different procedure that Dr. Jutton, in the "exercise of professional judgment," deemed "necessary or advisable."
During the surgical procedure, tissue surrounding the two cysts was removed and some of the appellant's milk ducts were cut, according to Dr. Jutton, "in the process of removing the mass." Dr. Jutton also subsequently testified, "[t]he breast is composed of milk ducts, milk ducts get cut when you do incision."
The appellant filed an action against the appellees in the Circuit Court for Anne Arundel County.3 The complaint contained two counts, one for medical negligence and the other for battery. The battery count was premised on Dr. Jutton's having cut the milk ducts leading to her left nipple during the surgery to remove the two cysts, without the appellant's authorization, that Dr. Jutton exceeded the scope of the consent she was given. At the conclusion of the trial, the appellant requested that the jury be given an instruction on battery, as follows:
The trial court denied the appellant's request. Instead, it gave the jury the following instruction:
The jury returned a verdict in favor of the appellant, awarding her $22,500.00 in damages. Judgment was entered on the verdict against the appellees. Despite the appellant's success with respect to the negligence count, she noted an appeal, in which she challenged the trial court's refusal to instruct the jury on battery. Prior to any proceedings on the merits in the intermediate appellate court, this Court, on its own initiative, issued the writ of certiorari to address the important question that this case presents. Molé v. Jutton, 373 Md. 406, 818 A.2d 1105 (2003).
The threshold issue that must be addressed is whether the appellant's cause of action should be dismissed as untimely. The appellees responded to the appellant's appeal by filing a Motion to Dismiss the appeal. Relying on Maryland Rule 8-202 (a),4 they argued that the appellant's appeal was untimely. The Court of Special Appeals denied the appellees' motion to dismiss, indicating that they should seek that relief in their appellate brief. The appellees have included in their brief in this Court a motion to dismiss the appellant's appeal.
Maryland Rule 8-202 (a) requires that, "[e]xcept as otherwise provided in this Rule or by law, the notice of appeal shall be filed within 30 days after entry of the judgment or order from which the appeal is taken." An appeal filed more than thirty (30) days after entry of judgment is untimely and, therefore, must be dismissed. The jury returned its verdict in this case on March 20, 2002 and judgment was entered the same day. (Respondent's brief at appendix 64-65). The appellant had thirty (30) days from that date to file her notice of appeal. Accordingly, to be timely, the notice of appeal was required to be filed by April 19, 2002.
Maryland Rule 1-322 (a) provides:
We considered the meaning and operation of Rule 1-322 (a) in Blundon v. Taylor, 364 Md. 1, 11, 770 A.2d 658, 664 (2001) and concluded:
See also Paul V. Niemeyer & Linda M. Shuett, MARYLAND RULES COMMENTARY (2d ed.1984) at 35, in which, addressing Rule 1-322 (a), it is observed:
See also, Paul V. Niemeyer & Linda M. Shuett, MARYLAND RULES COMMENTARY (2d ed.1992) at 41. The issue presented in Blunden "involve[d] the validity of `faxing'—transmitting by facsimile—a pleading or paper to the Maryland Health Claims Arbitration Office." Id. at 3, 770 A.2d at 669. It arose because the copy of the petitioner's Request For Modification of Arbitration Award "faxed" to the Health Claims Arbitration Office was received timely, and was so...
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