Mole v. Jutton

• Decision Date: 13 April 2004
• Docket Number: No. 126,126
• Citation: 846 A.2d 1035,381 Md. 27
• Parties: Tasha MOLE v. Jerrilyn JUTTON, et al.
• Court: Maryland Court of Appeals

846 A.2d 1035

381 Md. 27

Tasha MOLE v.Jerrilyn JUTTON, et al.

No. 126, Sept. Term, 2002.

Court of Appeals of Maryland.

April 13, 2004.

George Harper, Upper Marlboro, for appellant.

David A. Levin(Michelle R. Callender, Wharton, Levin, Ehrmantraut & Klein, P.A., on brief), Annapolis, for appellees.

Argued before BELL, C.J., ELDRIDGE¹, RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA, JJ.

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 Mole, 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."²As 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 aspirate³ 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:

"I have been advised that during the course of this admission, conditions unknown prior to the treatment may be revealed which necessitate or make advisable an extension of the original procedure or a different procedure than that referred to in Paragraph 1.I, therefore, authorize and request that the above named doctor, his assistants and associates perform such procedures or render such treatment as is necessary or advisable in the exercise of professional judgment."

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.⁴The 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:

"15:2: BATTERY—Liability

"a.Generally

"A battery is an intentional and unlawful touching which is harmful or offensive.

"b.Touching

"Touching includes the intentional putting into motion of anything which touches another person, or which touches something that is connected with, or in contact with, another person.

"c.Harmful

"A touching is harmful if it causes physical pain, injury or illness to the plaintiff.

"d.Offensive

"A touching is offensive if it offends a plaintiff's reasonable sense of personal dignity."

The trial court denied the appellant's request.Instead, it gave the jury the following instruction:

"A physician has the duty to obtain the consent of a patient after disclosing to the patient the nature of the condition to be treated, the nature of the treatment being proposed, the probability of success of that treatment, the alternatives, if any to the treatment, and every material risk of negative consequences of the treatment being proposed.

"A material risk is a risk which the physician knows or ought to know would be significant to a reasonable person who is being asked to decide whether to consent to a particular medical treatment or procedure.The purpose of the require [sic] explanation is to enable the patient to make an intelligent and informed choice about whether to undergo the treatment [being] proposed.A physician is negligent if the physician fails to disclose to the patient all material information and risks.

"On the other hand, a physician is not negligent if the physician does disclose all material information and risk and the patient thereafter consents to the treatment.

"In order to impose liability upon the physician, the Plaintiff must prove that a reasonable person would not have consented if properly informed.The question is not whether this particular Plaintiff would have consented if given proper information but whether a reasonable person in the same circumstances would have consented or not."

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.Mole v. Jutton,373 Md. 406, 818 A.2d 1105(2003).

I.

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),⁵they 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:

"The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that a judge of that court may accept the filing, in which event the judge shall note on the papers the filing date and forthwith transmit them to the office of the clerk.No filing of a pleading or paper may be made by transmitting it directly to the court by electronic transmission, except pursuant to an electronic filing system approved under Rule 16-307 or 16-506."

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:

"that Rule 1-322 is so clear and unambiguous in this regard that it does not require construction.Section (a) requires that, to be filed, pleadings and papers must be actually delivered, either in person or by mail, to the clerk or a judge of the court in which they are sought to be filed.That this is so is made clear by the provision that the filing of pleadings or papers is accomplished by filing them with the clerk or a judge of the court and the prohibition, excepting only electronic filing systems pursuant to Rule 16-307, against directly transmitting such pleadings and papers by electronic transmission."

See alsoPaul V. Niemeyer & Linda M. Shuett, MARYLAND RULES COMMENTARY(2d ed.1984) at 35, in which, addressing Rule 1-322(a), it is observed:

"A pleading or paper is filed by actual delivery to the clerk.This may be accomplished in person or by mail.However, the date of filing is the date the clerk receives the pleading, not the date when the pleading was mailed.Filing therefore differs from service of a pleading or paper by mail, which is, in fact, complete upon mailing (seeMd. Rule 1-321(a))...This rule permits a pleading or paper to be filed with a judge, assuming the judge agrees to accept the pleading or paper for filing."

See also,Paul V. Niemeyer & Linda M. Shuett, MARYLAND RULES COMMENTARY(2d ed.1992) at 41.The issue presented in Blundon"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...