Mole v. Jutton
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Tasha M olé v. Jerrilyn Jutton , et al. No. 126, September Term, 2002 HEADNOTES: TIMELINESS OF PLEADINGS; MD RULE 1-322; ACTUAL DELIVERY; BATTERY; NEGLIGENCE; JURY INSTRUCTIONS; TORT; LACK OF INFORMED CONSENT. Pleadings or papers that are mailed to a post office box designated by the Clerk of the Court, are deemed to have been received when the Postal Service delivers them to that specifi ed add ress. In the case w here a surg eon has e xceeded the consen t he or she w as given, it is proper for court to deny a party s request for a jury instruction on battery, when, as read as a whole, the court s instructions to the jury clearly set forth the applicable law that the cause of a ction for lack of inform ed conse nt is one in tort f or negligen ce, as oppo sed to battery or a ssault. Circuit Co urt for Anne A rundel Co unty Case No.: C-2000-65962.OT IN THE COURT OF APPEALS OF MARYLAND No. 126 September Term, 2002 TASHA MOLà v. JERR ILYN JUTT ON, et al. Bell, C.J. *Eldridge Raker Wilner Cathell Harrell Battaglia, JJ. Opinion by Bell, C.J. Filed: April 13, 2004 J. now retired, participated in the hearing and conference of this case while an active mem ber of this C ourt; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoptio n of this opinio n. * Eldridge, 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 3, 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 ), D r. George E. Linhard t, and Dr. Ju tton s emp loyer, 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 app eal. We sh all affirm the judgmen t of the Circ uit 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 brea st, the results of which revealed that the appellant had two tender masses in her left breast, one of which was d etermined to be a simple cyst, i.e. a fluid filled sac, and the other a complex cyst conta ining a m ural no dule. 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 S urgical As sociates, P.A ., with respec t to how b est to 1 A mura l nodule is a s mall lump on the cyst w all. proceed with regard to the cysts. Having initially attempted to aspirate 2 the cysts to determine if they were c ancerous , but finding that she was to o tender fo r me to aspirate, w ith 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-opera tive infection . The app ellant conse nted 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 profes sional ju dgme nt. 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 advisa ble. 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 brea st is compo sed of m ilk 2 In medical terms, to aspirate means to remove something, usually liquids or gasses , by mean s of a su ction de vice. While attempting to aspirate the cyst, Dr. Jutton was able to obtain a milky fluid and indicated on her notes that the fluid may suggest the presence of an underlying infection. 2 ducts, m ilk ducts get cut w hen you do incis ion. The appellant filed an action against the appellees in the Circuit Court for Anne Arundel Cou nty. 3 The complaint contained two counts, one for medical negligence and the other for b atter y. The battery count was premised on Dr. Jutton s having cut the milk d ucts 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 give n an instr uctio n on batte ry, as follows: 15:2: BA TTER Y - Liability 3 The appellant waived arbitration in accordance with Maryland Code (1973, 2000 Repl. Vo l.) § 3-2A-06B (b) (1) of the Courts and Judicial Proceedings Article. That section provides: (b)(1) Subject to the time limitation under subsection (d) of this section, any claimant may waive arbitration at any time after filing the certificate of qualified expert required by §§ 3-2A-04(b) of this subtitle by filing with the Director a written election to waive arbitration signed by the claimant or the claimant's attorney of record in the arbitration proceeding. (2) The claimant shall serve the written election on all other parties to the claim in accordance with the Maryland Rules. (3) If the cla imant wa ives arbitration under this su bsection, all de fendants shall comply with the requirements of §§ 3-2A-04(b) of this subtitle by filing their certificates at the Health Claims Arbitration Office or, after the election , in the ap propria te circuit c ourt or U nited S tates D istrict Co urt. 3 a. Gene rally 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 ph ysical pain, injury or illne ss to the plaintiff. d. Offensive A touching is offensive if it offends a plaintiff s reasonable sense of person al dignit y. The trial court den ied the app ellant s reque st. Instead, it gave the jury the following instruction: A physician has the duty to obtain the consent of a patien t after disclosin g to the patient the nature of the condition to be treated, the nature of the treatment being proposed , the probab ility of succes s of that treatm ent, 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 k nows o r ought to know w ould be significant to a reasonab le 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 a ll material information and risks. On the other hand, a physician is not negligent if the physician does disclose 4 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 w ould not have con sented if properly informed. The question is not whether this particular Plaintiff would have consented if given proper information but w hether a reasonable person in the same circumstances would have c onsen ted or n ot. The jury returned a verdict in favor of the appellan t, awarding her $22,50 0.00 in damages. Judgment was entered on the verdict against the appellee s. Despite the appellant s success with respect to the negligence count, she noted an appeal, in which she challenged the trial c ourt s ref usal to instruc t the j ury on batte ry. Prior to any procee dings on th e merits in the intermediate appellate court, this Court, on its own initiative, issued the writ of certiorari to addr ess the im portan t questio n that thi s case p resents. Mole 3 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 D ismiss the appeal. Relying on M aryland Rule 8-202 (a), 4 they argued that the 4 Maryland R ule 8-202 (a) provide s: Generally. Except as otherwise provided in this Rule or by law, the notice of appeal shall be filed within 30 days after entry of the judgement or order from which the appeal is taken. In this Rule, judgment includes a verdict or decision of a circuit court to which issues have been sent from an Orph an s C ourt. 5 appellant s appeal was un timely. The Court of Special Appeals denied the appellees motion to dismiss, indicating that they should seek th at relief in their app ellate brie f. The appellees have inclu ded in their b rief in this Co urt a motion to dismiss the appellant s a ppeal. Maryland Rule 8-202 (a) requires th at, [e]xcep t as otherw ise provide d in this Rule or by law, the notice of appeal shall be filed within 30 days after entry of the judgment or order from w hich the ap peal is taken . An app eal filed mo re than thirty (30) days after entry of judgment is untimely and, therefore, must be dismisse d. The jury retu rned its verd ict in this case on March 20, 2002 and judg men t 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. Acc ordingly, t o be time ly, 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 ma de by filing them with the clerk of the court, ex cept that a judge of that court may ac cept the filing , in which e vent the jud ge 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 d irectly to the court by electronic transmission, except pursuant to an electronic filing system ap proved under R ule 16- 307 or 16-50 6. 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: 6 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 cou rt and the pro hibition, exce pting only electronic filin g systems pursuant to Rule 16- 307, against directly transmitting such p leading s and p apers b y electron ic transm ission. See also Paul V. Niemeyer & Lin da M . Shuett , M ARYLAND R ULES C OMMENTARY (2d ed.1984) at 35, in which, addressing Rule 1-322 (a), it is observed: A plea ding or pa per is file d by actua l deli very to the clerk. This may be accomplished in person o r by mail. However, the date of filing is the date the clerk receives the pleading, n ot the date when the pleading was mailed. Filing therefore differs fro m service o f a pleadin g or pape r by mail, whic h is, in fact, complete upon mailing (see Md. Rule 1-321 (a)) . . . This rule permits a pleading or paper to be filed with a judge, assuming the judge agrees to accept the plea ding or paper f or filing . See also, Paul V . Niem eyer & L inda M . Shuett , M ARYLAND R ULES C OMMENTARY (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 Offic e. 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 stam ped by the HC AO , but t he co py he mail ed on the same day, by regular mail, was received in the Health Claims office one day after the deadline for filing the request for modification. Id. at 6-7, 770 A. 2d at 661. Concluding that Maryland Rule 1-322 does not permit the filing of plea dings or pa pers via fac simile by direct electron ic 7 transmission, we held: It follows, therefore, th at the faxed copy of the p etitioner s requ est to modify the panel award may not be considered in determin ing whe ther his request was filed tim ely. And, beca use it is undisputed that the mailed copy of the request was not received until April 30, 1997, one day a fter the deadline set by §§ 3-222 for filing the application to modify or correct the award, it also follows that the petitioner's application to modify or correct the award came too late. Id. at 16-17, 770 A.2d at 667. Thus, unlike service by ma il, which is co mplete up on mailing , filing is not comp lete until the clerk of the c ourt or a judge r eceive s the do cume nt. See Maryland Rule 1-321 (a);5 see M ARYLAND R ULES C OMMENTARY (2d ed.1984) supra at 35. See also M ARYLAND R ULES C OMMENTARY (2d ed.1992) supra at 41. On the other hand, the date stamped on a 5 Maryland Rule 1-321 (a) provides: a) Generally. Except as otherwise provided in these rules or by order of court, every plea ding and o ther paper f iled after the o riginal pleadin g shall be served upon each of the parties. If service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or upon a party shall be made by delivery of a copy or by mailing it to the address most recently stated in a pleading or paper filed by the attorney or party, or if not stated, to the last known address. Delivery of a copy within this Rule means: handing it to the attorney or to the party; or leaving it at the office of the person to be served with an ind ividual in charge; or, if th ere is no on e in charge , leaving it in a c onspicuo us place in the office; or, if the office is closed or the person to be served has no office, leaving it at the dwelling h ouse or us ual place of abode of that person with some individual of suitable age and discretion who is residing there. Service by mail is c omple te upon mailing . 8 pleading or paper is not necessarily dispositive of the date on which the pleading or paper was fi led. In In re Vy N., 131 Md. App. 479, 482, 749 A.2d 247, 249 (2000), the Court of Special Appeals reviewed de novo a trial court s determination that the delinquency petitions at issue in that case were filed timely. The petitions, which had been delivered to the Clerk s Office for filing after 4:30 pm, w hen the trial cou rt closed , the trial co urt fou nd, a finding that the intermediate appellate cou rt did not disturb, were accepted by someone in the clerk s office, rather than a judge, but stamped as received the first thing the next morning. Chara cterizing Rule 1 -322 (a ) as one that allo ws atto rneys to m eet filing deadlin es, quoting Melvin J. Sykes, Esq., November 12, 1983 meeting of the Rules Committee, the Court of Special Appeals endorsed the view of the Rules Committee, that the rule (1) effectually mak es the cou rt alw ays open for the filing of papers, and (2) provides that the filing date is the day the judge accepts the p aper. Id. at 483, 749 A. 2d at 25 0 (footnote omitted). The court explained: When a pleading or other paper must be filed within a particular number of days, it can be filed anytime before midnight on the last day provided that--if the Clerk's Office has closed--it is delivered to a judge or to an employee of the Clerk's Office who is authorized to accept delivery of such a document during the hours that the offic e is open to the public. No thing in the a pplicable statute or in the Maryland Rules of Procedure provides that anything delivered to a clerk after 4:30 p.m. is deemed to have been filed on the next day that the Cler k's Office is open. As is pointed out in the Maryland Rules Com mentary, supra at 41, judges often receive date sensitive documents after the clerk's office has closed for the day. We take judicial notice that clerks do so as well. The correct procedure in such a situation calls for the judge (or other 9 authorized person) to (1) note (or stamp) the minute, hour and day that the docume nt is received; and (2), as soon a s is practicable thereafter, pre sent it to the e mployee( s) of the C lerk's Office assigned to process such documents. In these situations, the document is deemed received for filing on the day that it is de livered t o the jud ge or ot her auth orized p erson. Id. at 483-84, 749 A. 2d at 250. Rather than deliver the notice to the Clerk in person, the a ppellant ch ose to mail it. She did so on April 17, 2002, addressing it to Clerk, Circuit C ourt Anne A rundel, Ap peals Division, 7 Churc h Circle, Annapolis, Maryland 21401. On its letterhead, the address of the Anne A rundel Co unty Circuit C lerk s office is listed as P.O . Box 71, C hurch C ircle, Annapolis, Maryland 21404-0000.6 The notice of appeal was delivered by the Postal Service to Post O ffice Bo x 71 at 7:45 a.m. on A pril 19, 2002 . The doc ket entries ref lect that the notice was filed on April 22, 2002, at 9:55 a.m. The app ellees mainta in the appe llant did not tim ely file the notice of appeal with the Clerk. They argue that filing re quires the ac tual receipt of the pleadin g or paper by the Clerk. The delivery of the Notice of Appeal to the post office box of the Clerk of the Court does not qualify as actual filing of the pleading, they submit. (respondent s brief at 32.) That is so, the appellees a ssert, becaus e a filing m ust be made with the clerk of the 6 The address that appears on the Judiciary website for the Circuit Court for Anne Arundel County is the same as the address to which the appellant forwarded the notice of appeal, 7 C hurch C ircle, Anna polis, Mar yland 21401 . It is interesting to n ote that the zip code is differe nt from the zip c ode fo r the Po st Off ice Bo x, 2140 1 as op posed to 2140 4. The Circuit Court also uses a Post Office Box, the zip code for which is, like that for the Post O ffice B ox for the Cle rk s Of fice, 21 404. 10 court, directly. (respondent s brief at 33). Not surprisingly, the appellant does not agree. She argues, on the contrary, that the notice of appeal was filed on April 19, 2002, rather than April 22, 2002, because that is the date the notice of appeal was delivered to the post office box that the Clerk gave a s its mailing address and, therefore, was actually received by the Clerk. appellant. We agree with the The appellees acknowledge that a pleading or paper may be filed by mail. That would occur when the pleading or paper was delivered to, and, therefore, received in, the C lerk s Office. The situation is simple and straight forward when the mail is delivered by the postal service directly to, and, thus, is accepted directly in the Clerk s office. W hat comp licates this case and makes it unique is that the C lerk s mailing add ress is to a post of fice bo x. Therefore, mail, including p leadings and papers for filing, rather than being delivered directly to the Clerk s office, is delivered to the Clerk s post office box. Thus, to get the pleading or paper to the Clerk s Office requires another step, someone must pick up the mail from the post office box an d delive r it to the C lerk s O ffice. We believ e that, whether delivered by the Postal Service directly to the Clerk s Office or to a post office box, the mail is received, and therefore pleadings o r papers filed , when the mail is delivered to the address designated by the Clerk. That the Clerk may have the mail delivered to a post office box, rather than to his office directly, does not change the analysis or the result. Delivery of pleadings or pap ers by the Postal Service to the address designated by the addressee is receipt by the addressee of 11 those pleadin gs or pa pers. A person awa re of the filing deadline, w ho acts reas onably to file pleadings timely, should not be at the m ercy of the procedure set up by the Clerk s Office for its co nvenie nce. To agree with the appellees, we would have to ignore altogether the delivery of the mail by the Postal Service, in accordance with express instructions from the Clerk, to the place designated and focus only on when it is actually taken or delivered, by whom ever, to the Cler k s O ffic e. Th ere w ould be no cer taint y; where the delivery is to a post office box, a day, or more, could elapse, as it did here, between delivery to the post office box and actual delivery to the C lerk s Off ice. More over, the ap pellees pos ition comp letely eliminates the option of mailing plea dings or papers later in the period, at least where the Clerk h as imple mente d a system of ma il collectio n off-p remise s. We hold that delivery of the appellant s notice of appeal by the Postal Service to the Post Office Box designated by the Clerk as h is mailing address constitutes actual de livery of that notice to the Clerk under Md. Rule 8-202. Accordingly, the notice was timely filed. II. To be sure, in Ma ryland, co nsistent with th e gene ral rule, see, e.g. McGrady v. Wright, 729 P. 2d 338, 341 (A riz. 1986); 7 Cobbs v. Gra nt, 502 P. 2d 1, 7 -8 (Cal. 197 2); Kennis v. Mercy Hospital Medical Center, 491 N. W. 2d 161, 1 64 (Iowa 1992); Paul v. Lee, 568 N. W. 7 By statute, in Arizona, [n]o medical malpractice action brought against a medical provider shall be based u pon assault and battery. A.R .S. § 12-562 (B). 12 2d 510, 51 4 ( Mic h. 1997 ), rev d on other grounds, Smith v. Globe Life Ins., 597 N. W. 2d 228 (Mich. 19 99); Kohoutek v. Hafner, 383 N. W . 2d 295, 29 8-300 (M inn. 1986) ; Baltzell v. Van Busk irk, 752 S. W . 2d 902, 90 6 (Mo. C t. App. 198 8); Howard v. University of Medicine and Denistry of New Jersey, 800 A. 2d 73 , 78-79 (N. J. 2002); Dries v. Gregor, 424 N. Y. S. 2d 561, 564 (N. Y. A.D. 1980); McPherson v. Ellis, 287 S. E. 2d 892, 895 (N. C. 1982); 8 Ashe v. Stroup, 9 S. W. 3d 119, 121 (Tenn. 20 00); Lounsbury v. Capel, 836 P. 2d 188, 193-94 (Utah 1 992); 9 Martin v. Richards, 531 N . W. 2d 70, 76- 77 (W is. 1995 ), a claim under the informed consent doctrine must be pled as a tort action for negligence, rather than as one for battery or assault. This pronouncement was made first in Sard v. Hardy, 281 Md. 432, 434, 379 A. 2d 1014, 1017 (1977), in which this Court address[ed] for the first time the so-called doctrine of informed consent. Afte r stating the do ctrine and d efining its contou rs, id. at 438-440, 379 A. 2d at 1019-29, we note[d] in passing our approval of the prevailing view that a cause of action under the informed consent doctrine is properly cast as a tort action for negligence, as opposed to battery or as sault. See, e. g., Cobbs v. Grant, 8 Cal.3d 229, 104 Cal.R ptr. 505, 502 P.2d 1, 8 (19 72); Perin v. Hayne, 210 N.W.2d 609, 618 (Iowa 19 73); Downer v. Veilleux, 322 A.2d 82, 89-90 (Me.1974); Trogun v. Fruchtman, 58 Wis.2d 569, 207 N.W.2d 297, 311-13 (1973 ). Id. at 440 n. 4, 379 A. 2d at 1020 n. 4. That approval has been confirmed in subsequent 8 Like Ariz ona, the cau se of action for lack of informed consent is, in N orth Carolin a, statuto ry. See N.C. G. S. 90-21.13. 9 The ac tion for lack of inform ed con sent is als o statuto ry in Utah . See Utah Code Ann. § 78-14 -5 (1). 13 opinions of this C ourt, Faya v. Almaraz, 329 Md. 435, 450 n. 6, 620 A.2d 327, 334 n. 6 (1993) ( The cause of action for lack of informed consent is one in tort for negligence, as opposed to battery or assault. ); Wright v. Johns Hopkins Health Sysytem Corporation, 353 Md. 568, 596 n. 16, 728 A. 2d 166, 179 n. 16 (1999) ( Wright's parents' cause of action for lack of informed consent is properly a cause of action for negligenc e. ); Dingle v. B elin, 358 Md. 354, 368, 749 A. 2d 157, 164-65 (2000) ( In [Sard, supra.], we recog nized, as a se parate negligence-based (rather than battery-based) cause of action, the performance of a medical procedure by a physician without the informed consent of the patient. ), and followed by the Court of Spe cial Ap peals, Zeller v. Greater Baltimore Med. Center, 67 Md. App. 75, 81-82, 506 A. 2d 649, 651 (1986)(pronouncing that the rendering of medical services absent informed consent, if p led properly, co nstitutes a sep arate and n ew cou nt of neglig ence. ); Miller v. Shafer, 80 Md. App. 60, 72 n. 5, 559 A. 2d 813, 819 n. 5 (1991) (quoting Sard); Yonce v. Smith kline B eecha m Clin ical Lab oratorie s, Inc., et al, 111 Md. App. 124, 154-155 680 A.2d 569, 583-584 (1996) (reasoning that [t]he doctrine of informed consent, adopted in Sard, supra, is based on principles of negligence and impo ses upon a physician a du ty to disclose material risks a nd availab le alternatives s o that a patien t can make an informed decision. ), and fede ral courts applying Marylan d law, Lipscomb v. Memorial Hospital, 733 F. 2d 332, 335 (4 th Cir. 1984) (noting that, under M aryland law, th e case pres ented a claim grounded upon lack of inform ed conse nt, rather than lack of consent, which properly is cast as a tort action for negligence as oppose d to battery); Robinso n v. Cutch in,140 F. Supp. 2d 14 488, 492-93 (D . Md. 2001). Noting that Ma ryland tort law ... rec ognizes an d protects an individual s r ight to determine what sha ll be done w ith his or her b ody, and ass erting that no other case in Maryland addresses [o r has addressed] the question p rese nted by this case, the appellant submits that the pronouncement in Sard with respect to the informed consent doctrine, and the subsequent confirmations thereof, [do] not rise to the level of stare decisis. Relying on out-of-state authority, which she characterizes as holding that physician s o perations in excess of the s cope o f inform ed con sent ma y be pled as a batte ry, 10 the appellant argues: A physician who exceeds the scope of consent is committing the tort of batte ry, by performing an unauthorized touching, offensive to the victim, and is denying the victim the right to determine what shall be done with her own body. Maryland s hould reco gnize that a p hysician may be held liable in battery fo r excee ding th e scope of con sent. We reject the appellant s argument that the Sard pronouncement, recognizing the separate negligence-based (rather than battery-based) cause of action of lack of informed consent, does not rise to the level of stare decisis. As we have seen, this court has stated that recognition clearly and reiterated it on several occasions, in contexts indicating that it was a holdin g, rather than dic ta. See Faya, supra, 329 M d. at 450, 620 A . 2d at 334; Dingle, 10 The appellees challenge much of this purported authority as having been overru led by statu te or rev ersed o n appe al or bein g other wise d istinguis hable f actually. Without directly responding to the challenge on the merits, the appellant persists in her argumen ts, suggesting that some o f the cases th e appellees rely on, in fact rec ognize tha t a battery claim lies for exceeding the scope of a consent and that an examination of the appelle es s arg umen ts conf irm the v alidity of h er positio n. 15 supra, 358 Md. at 368, 749 A. 2d at 164-165. On the other hand, the appellant s observation that no opinion of this Court or of the Court of Specia l Appeals has addre ssed the pre cise issue this case pr esents is accura te. In Sard, Mrs. Sard, who was then pregnant for the third time, selected sterilization from among the options her gynecologist gave her, consistent with her wish not to become pregnant again. Id. at 436, 379 A. 2d at 1018. While delivering Mrs. Sard s third child by caesarian section and pursuant to a consent form executed by Mrs. Sard and her husband, the doctor performed a bilateral tubal ligation. Id. When M s. Sard bec ame preg nant for the fourth time, she and her husband sued the doctor, alleging negligent performance of the bilateral tubal ligation and, specifically ... that [the doctor] negligently failed to advise them that the surgical procedure employed by him was n ot absolutely certain to succeed and that [the doctor] failed to apprise the Sards of the potential results of the operation and alternative methods of sterilization, thereby precluding [them] from giving their informed consent. Id. at 435, 379 A. 2d at 1017. The Sards did not allege that the doctor committed a battery. Con sequ ently, the C ourt did n ot mentio n at a ll me dica l batt ery; although the Court discussed informed consent, its nature and doctrinal basis, it did not discuss, as many courts have done, see e.g. Howard , 800 A. 2d at 77-78 (an alyzing the distinction between lack of informed consent and battery and noting that [t]he doctrine of informed consent w as tied initially to the tort of battery, but its evolution has firmly established it as a negligence conc ept. ); Lounsbury v. Capel, 836 P. 2d at 194 (indicating, quoting Baltzell v. Van Bu rkirk, 752 S. W. 16 2d at 906, that the informed consent doctrine apparently began as an offshoot of battery ); Martin v. Richards, 531 N. W. 2d at 76 ( Traditionally, informed consent was based upon the tort of b attery. ). See Cobbs v. Grant, 502 P. 2d at 7-8; Kohoutek v. Hafner, 383 N. W. 2d at 29 8-99, th e relation ship of the info rmed c onsen t doctrin e to me dical ba ttery. Faya v. Almaraz involved two patients of a surgeon, who was infected with the AIDS virus and who operated on each of them, but without first informing them of the fact of that infe ction. 32 9 Md . at 438, 6 20 A. 2 d at 328 . The patients, in separate actions against the doctor and the hospital at which he had operative privileges, alleged various wrongful acts, 11 one of which, pled by one of the patients, was a battery co unt. Id. at 441, 620 A. 2d at 330. The trial court dismissed all of the counts, holding that the patients failed to allege a legally co mpen sable in jury. Id. at 442-43 , 620 A. d a t 330. This Court, concluding that the gist of the complaints was the surgeon s wrongful conduct in operating on the patients without first telling them that he was HIV-positive, and later ill from AIDS, and of the risk of contrac ting HI V as a r esult of the surg ery, id., determined that at their core was the surgeon s negligence, the failure to disclose his HIV-positive status, and, therefore, addressed only the negligence counts. As to them, we concluded: In evaluating the well-ple aded allega tions of the c omplaints with respe ct to 11 Both patients alleged neg ligence, negligent failure to obtain the p atient s informed consent, fraud and intentional infliction of emotional distress. One of them alleged, in addition, negligent misrepresentation and breach of contract, while the other added loss of c onsortiu m, brea ch of f iduciary d uty and b attery. Faya v. Almaraz, 329 Md. 435, 441, 620 A . 2d 327, 330 (199 3). 17 the duty component of the tort of negligence, we cannot conclude that they are legally insufficient to survive the appellees motions to dismiss; in other words, we cannot say as a m atter of law that no duty was imposed upon Dr. Almaraz to warn the appellants of his infected condition or refrain from operatin g on the m. It was in this context that the Court confirmed the Sard pronouncement, [t]he cause of action for lack of informed consent is one in tort for negligence, as opposed to battery or assault. 281 M d. at 440 , 379 A . 2d at 1017. Accordingly, the Court ruled that the trial court erred in dismissing the negligence counts based on the failure of the surgeon to disclose his infecte d cond ition. Id. at 459, 620 A. 2d at 339. But rather than ordering reinstatement of only the negligence counts addressed, the Court opined: In view of our disposition of the basic negligence counts g rounded on D r. Almaraz s asserted failure to warn the appellants of his infected condition, and because the damages claimed on all counts are essentially the same, the trial judge erred in dismissing the other counts as well. As we see it, after viewing the allegations of the complaints in suppo rt of these counts, dismissal was not approp riate in th e circum stances . Id. at 460-61, 620 a, 2d at 339. Both a count for battery and a count for lack of informed consent w ere include d in the complaint in Wright against Hopkins for wrongfully prolonging the life of an AIDS patient by resuscitating him from cardiac arrest. As we have seen, we reiterated that the cause of action under the informed consent doctrine is negligence-based. 353 Md. at 595 n. 16, 728 18 A. 2d at 179 n. 16. We dismissed that count, however, because Section 5-607,[12] under which the CPR was auth orized, acco rds with the common law doctrine of informed consent, which is suspended in an emergency situation. Id. at 595, 728 A. 2d at 179. The ba ttery claim, although p reserved b y cross-petition fo r certiorari, was abandoned, as no argument as to it was in cluded in the br ief of th e propo nent of that argu ment. Id. at 596, 728 A. 2d at 179. In Dingle v. Belin, the complaint alleging negligent performance of gall bladder surgery by a resident physician under supervision of a surgeon, who, it also was alleged, contracted to perform the surgery himself, included, in addition, a count for lack of informed consent and a cou nt for battery. 35 8 Md. at 3 58, 749 A. 2d at 159. The lack of informed consent count, which we specifically mentioned was negligence-based, was submitted to the jury, which found in favo r of the s urgeon . Id. at 359, 749 A. 2d at 159. The battery count 12 Maryland Code (1982, 1994 Repl. Vol., 1998 Cum. Supp.) § 5-607 [of the Health-G eneral Artic le] reads: A health care provider may treat a patient who is incapable of making an informed decision, w ithout conse nt, if: (1) The tre atment is of an emerg ency medica l nature; (2) A person who is authorized to give the consent is not available immediately; and (3) The a ttending ph ysician determ ines that: (i) There is a substantial risk of death or immediate and serious harm to the patient; and (ii) With a reasonable degree of medical certainty, the life or h ealth of the p atient wou ld be affecte d adverse ly by delaying treatme nt to obtain c onsen t. 19 was d ismisse d at the e nd of th e surge on s ca se and n ot pursu ed on a ppeal. Id. The issue that this case prese nts was addressed by the United States District Court for the District of Maryland in Robinso n v. Cutch in. There, a patient, whose child was delivered by an emergency caesarean section, and her husband sued her doctor and the hospital for damages they allegedly suffered as a result of the doctor s performance of a bilateral tubal ligation, for which no informed consent was given, and which prevented her having any additional children. 140 F. Supp. at 490. In addition to the count alleging lack of informed c onsen t, the com plaint co ntained , inter alia, a count for battery, which, it was alleged, was co mmitte d with m alice. Id. The defendants moved in limine to preclude the pursuit of the b attery cou nt. Id. Treating th at motion a s one for su mmary judg ment, the court entered summ ary judgm ent in fa vor of the def endan ts. Id. at 492. After reviewing the nature of assault and battery in Maryland, the unpermitted application of trauma by one person upon any part of the body of another, citing Saba v. Darling, 72 Md. App. 487, 491, 531 A.2d 6 96 (19 87), aff'd 320 Md. 45, 575 A.2d 1240 (1990) and MPJI 15:2,13 id., and noting that a cause of action for lack of in formed consent is one sounding in negligence, rather th an batte ry or assau lt, id., citing Sard and Faya v. Almaraz, the court concluded: 13 A ba ttery is the in tentiona l touchin g of a p erson w ithout th at perso n's cons ent. 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. In o rder to be a b attery, the touchin g must be harmful o r offensiv e. A touch ing is harmful if it causes physical pain, injury or illness. A touching is offensive if it offends the othe r person 's reason able sen se of p ersona l dignity. 20 This malpractice suit is an informed consent case in which Mrs. Robinson claims, inter alia, that Dr. Cutchin committed a battery. The intentional touching sought to be proved is that of a physician occurring during an operative procedure. Plain tiffs do no t here conte nd that M rs. Robinso n did not consent to the emergency C-Sec tion pro cedure . Moreover, Mrs. Robinson has not claimed that she suffered increased pain and discomfort because Dr. Cutchin, during the course of the operation to which she had consen ted, ... performed a tubal ligation in additi on to th e C-Se ction pr ocedu re. Although Mrs. Robinson consented to the initial touching by the doctor, the fact that the touching was more extensive than agreed upon does not amount to a battery in a case where the critical issue is whether or not there was informed consen t. Id. (footnote omitted). The court further elaborated: [E]vidence of record does not support a claim of battery. ... There is no proof that Dr. Cutchin acted intending to caus e a harm ful or o ffensiv e conta ct.... Nelson v. Carroll, 355 Md. 593, 601, 735 A.2d 1096 (1999) (quoting RESTATEMENT (SECOND) OF TORTS § 13 (1965)). The touching by Dr. Cutchin was not harmful because it did not cause any additional physical pain, injury or illness other than that occasioned by the C-Sec tion pro cedure . ... See MPJI 15:2. Indeed, Mrs. Robinson claims that she was not even aware that the tubal ligation procedure had occurred until June of 1999, more than 21 months after the deliv ery of her bab y. ... Moreover, w hat occurre d here did not offend Mrs . Rob inso n's reason able sen se of p ersona l dignity. Id. She may, as claimed, have sustained emotional injury, and that claim will be presented to the jury in this case by way of her o wn testim ony. However, the fact that she was not able to have a s eventh ch ild after prev iously giving b irth to six children is hardly something which would offend her reasonable sense of person al dignit y. Id. at 493 (footnotes om itted). The appellant accurately observes that this Court is not bound by the decision in Robinson v. Cutchin . We, however, find that case to be persuasive and, consequently, adopt 21 its analysis and rationale, aligning ourselves, therefore, with the majority of the courts that have addressed this issue.14 Thu s, as e xpla ined by Cobbs v. Grant, supra, 502 P. 2d at 8, one of the auth orities that Sard cited w ith appr oval, alb eit on an other p oint, The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented. When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite e lement of deliberate inte nt to deviate from the consent given is pre sent. How ever, whe n the patient con sents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information. In that situation the actio n shou ld be ple aded in neglige nce. See also Howard v. University of Medicine and Denistry of New Jersey, 800 A. 2d at 80 (noting that battery, an inten tional tort, is reser ved for tho se instances where eith er the patient consents to one type of operation but the physician performs a substantially different one from that foe which authorization was obtained, or where no consent is obtained and an action for negligence for where the surgery that was performed was authorized with arguably inadequa te informa tion ); Lounsbury v. Caspel, 836 P. 2d at 195 ( A typical 14 There is contra ry authori ty. See, e.g . Valles v. Albert Einstein Medical Center, 805 A. 2d 1232, 1237 (Pa. 2002) ( A claim of a lack of informed consent sounds in the intentional tort o f battery becau se an ope ration perfo rmed w ithout the pa tient s consen t is deemed to be the eq uivalent to a te chnical assa ult ); Sood v.Smeigh, 578 S.E.2d 158, 162 (Ga. App. 2003) (indicating installation of prosthetic patella in a backward position contrary to the in struction and design of the device w ould cons titute an unco nsented-to battery because such action was contrary to any informed consent granted to do a total knee replacement ). These simply are not persuasive. 22 medical battery case is that of a patient who consents to a particular procedure, but who receives treatment dif ferent from that which was auth orized. ); Martin v. Richards, 531 N. W. 2 d at 7 6 (sta ting that, tradition ally, a battery cause of action existed where a patient did not authorize treatment or consented to one f orm of treatment and the physician performed a substantially diff erent one); Baltzell v. Van Bu skirk, 752 S. W. 2d at 906 ( A claim in battery ... may lie ... where an operation is performed without the patient s consent or w here the operation is not the surgical procedure to which the patient have his consent. By contrast, where th e consen t to treatment w as given b ut with insu fficient or inc omplete disclosure of risks, the cause of action is in medical malpractice based on negligence of the physician to mee t a recog nized s tandard of care . ). The appellant consented to the excision of the mass from her left breast, the procedure for which she consulted Dr. Jutton, and to any necessary extension of that surgery or to a different procedu re should D r. Jutton, in the e xercise of p rofessiona l judgmen t, deem it necessary or advisable. That procedure was the one that Dr. Jutton performed. The conduct about which she complains, the cutting of some of the appellant s milk ducts, occurred during the course of the performance of the excision of the left b reast m ass. Indeed, there was testimony, the appellant s only rebuttal to which is that it is ambiguous, that the cutting of the milk ducts was a necessary part of the expec ted proced ure, that it did not occur during an independent or unrelated procedure. Consequently, as the appellees argue, Appellant s only complaint can be that Dr. Jutton inadequately disclosed the potential 23 risks associated w ith [the contemplated] procedure: that an incision close to the nipple area may result in the cu tting of milk ducts, wh ich could relea se/ correct A ppellant s ch ronic nipple r etraction . Such is the evid ence o f lack o f inform ed con sent, no t of batte ry. We hold that, under the circumstances sub judice, the trial court properly denied the appellant s request for a jur y instructio n on ba ttery. CSX Transportation, Inc. v. Continental Insurance Co., 343 Md. 216, 240, 680 A. 2d 1082, 1094 (1996) ( [i]t is well settled that if, when read as a whole, the co urt s instruction to the jury clearly set forth the applicable law, there is no reversible error. ), citing Nizer v. Phelps, 252 Md. 185, 202-03, 249 A. 2d 112, 122 (1969); Alston v. Forsythe, 226 M d. 121, 1 35, 172 A. 2d 4 74, 481 (1961 ). See also Wegad v. H oward Street Jew elers, 326 M d. 409, 4 14, 605 A.2d 1 23, 127 (1992 ). JUDGMEN T AFFIRMED, W ITH COSTS. 24 25
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