Mole v. Jutton

²⁹ 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,” ie. 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 aspirate 2 the cysts to determine if they were cancerous, but ³⁰ 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. 3 The complaint ³¹ 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 plaintiffs 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 ³² 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 ³³ 202(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, “[ejxcept 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 ³⁴ 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 16-807, against directly transmitting such pleadings and papers by electronic transmission.” 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: “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 (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 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 Arbitration Award “faxed” to the Health Claims Arbitration Office was received timely, and was so stamped by the HCAO, but the copy he mailed 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 pleadings or papers via facsimile by direct electronic transmission, we held: “It follows, therefore, that the ‘faxed’ copy of the petitioner’s request to modify the panel award may not be considered in determining whether his request was filed timely. ³⁵ And, because it is undisputed that the mailed copy of the request was not received until April 30, 1997, one day after 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 mail, which is complete upon mailing, filing is not complete until the clerk of the court or a judge receives the document.

See Maryland Rule 1 — 321(a); 5 see Maryland Rules Commentary (2d ed.1984) supra at 35. See also Maryland Rules Commentary (2d ed.1992) supra at 41. On the other hand, the date stamped on a pleading or paper is not necessarily dispositive of the date on which the pleading or paper was filed. 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 p.m., when the trial court closed, the trial court found, a finding that the intermediate appellate court did not disturb, were accepted by someone in the clerk’s office, rather than a judge, but stamped ³⁶ as received the first thing the next morning. Characterizing Rule 1-322(a) as one that “allows attorneys to meet filing deadlines,” quoting Melvin J. Sykes, Esq., November 12, 1988 meeting of the Rules Committee, the Court of Special Appeals endorsed the view of the Rules Committee, that the rule “(1) ‘effectually makes the court always open for the filing of papers,’ and (2) provides that ‘the filing date’ is ‘the day the judge accepts the paper.’” Id. at 483 , 749 A.2d at 250 (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 office is open to the public. Nothing in the applicable 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 Clerk’s Office is open.

As is pointed out in the Maryland Rules Commentary, 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 authorized person) to (1) note (or stamp) the minute, hour and day that the document is received; and (2), as soon as is practicable thereafter, present it to the employee(s) of the Clerk’s Office assigned to process such documents. In these situations, the document is deemed ‘received for filing’ on the day that it is delivered to the judge or other authorized person.” Id. at 483-84, 749 A.2d at 250 .

Rather than deliver the notice to the Clerk in person, the appellant chose to mail it. She did so on April 17, 2002, addressing it to “Clerk, Circuit Court Anne Arundel, Appeals Division, 7 Church Circle, Annapolis, Maryland 21401.” On its letterhead, the address of the Anne Arundel County Circuit Clerk’s office is listed as P.O. Box 71, Church Circle, Annapo ³⁷ lis, Maryland 21404-0000. 6 The notice of appeal was delivered by the Postal Service to Post Office Box 71 at 7:45 a.m. on April 19, 2002. The docket entries reflect that the notice was filed on April 22, 2002, at 9:55 a.m. The appellees maintain the appellant did not timely file the notice of appeal with the Clerk.

They argue that “filing” requires the actual receipt of the pleading 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 assert, because “a filing must be made with the clerk of the 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 as its mailing address and, therefore, was actually received by the Clerk.

We agree with the appellant. 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 Clerk’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.

What complicates this case and makes it unique is that the Clerk’s mailing address is to a post office box. Therefore, mail, including pleadings 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 and deliver it to the Clerk’s Office. We ³⁸ believe 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 or 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 papers by the Postal Service to the address designated by the addressee is receipt by the addressee of those pleadings or papers. A person aware of the filing deadline, who acts reasonably to file pleadings timely, should not be at the mercy of the procedure set up by the Clerk’s Office for its convenience. 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 whomever, to the Clerk’s Office.

There would be no certainty; 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 Clerk’s Office. Moreover, the appellees’ position completely eliminates the option of mailing pleadings or papers later in the period, at least where the Clerk has implemented a system of mail collection off-premises. 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 his mailing address constitutes actual delivery of that notice to the Clerk under Md. Rule 8-202. Accordingly, the notice was timely filed.

II

To be sure, in Maryland, consistent with the general rule, see, e.g. McGrady v. Wright, 151 Ariz. 534 , 729 P.2d 338, 341 (1986); 7 Cobbs v. Grant, 8 Cal.3d 229 , 104 Cal.Rptr. 505 , ³⁹ 502 P.2d 1, 7-8 (1972); Kennis v. Mercy Hospital Medical Center, 491 N.W.2d 161, 164 (Iowa 1992); Paul v. Lee, 455 Mich. 204 , 568 N.W.2d 510, 514 (1997), rev’d on other grounds, Smith v. Globe Life Ins., 460 Mich. 446 , 597 N.W.2d 28 (1999); Kohoutek v. Hafner, 383 N.W.2d 295, 298-300 (Minn.1986); Baltzell v. Van Buskirk, 752 S.W.2d 902, 906 (Mo.Ct.App.1988); Howard v. University of Medicine and Denistry of New Jersey, 172 N.J. 537 , 800 A.2d 73, 78-79 (2002); Dries v. Gregor, 72 A.D.2d 231 , 424 N.Y.S.2d 561, 564 (N.Y.A.D.1980); McPherson v. Ellis, 305 N.C. 266 , 287 S.E.2d 892, 895 (N.C.1982); 8 Ashe v. Radiation Oncology Assoc., 9 S.W.3d 119, 121 (Tenn.1999); Lounsbury v. Capel, 836 P.2d 188, 193-94 (Utah.App.1992); 9 Martin v. Richards, 192 Wis.2d 156 , 531 N.W.2d 70, 76-77 (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.” After stating the doctrine and defining its contours, id. at 438-440 , 379 A.2d at 1019-20 , 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 assault. See, e.g., Cobbs v. Grant, 8 Cal.3d 229 , 104 Cal.Rptr. 505 , 502 P.2d 1, 8 (1972); Perin v. Hayne, 210 N.W.2d 609, 618 (Iowa 1973); 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 opinions of this Court, 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 ⁴⁰ tort for negligence, as opposed to battery or assault.”); Wright v. Johns Hopkins Health Systems 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 negligence.”); Dingle v. Belin, 358 Md. 354, 368 , 749 A.2d 157, 164-65 (2000) (“In [ Sard, supra.], we recognized, as a separate 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 Special Appeals, Zeller v. Greater Baltimore Med. Center, 67 Md.App. 75, 81-82 , 506 A.2d 646, 651 (1986)(pronouncing that “the rendering of medical services absent informed consent, if pled properly, constitutes a separate and new count of negligence.”); Miller v. Schaefer, 80 Md.App. 60 , 72 n. 5, 559 A.2d 813 , 819 n. 5 (1989) (quoting Sard); Yonce v. SmithKline Beecham Clinical Laboratories, 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 imposes upon a physician a duty to disclose material risks and available alternatives so that a patient can make an informed decision.”), and federal courts applying Maryland law, Lipscomb v. Memorial Hospital, 733 F.2d 332, 335 (4th Cir.1984) (noting that, under Maryland law, the case presented a claim grounded upon lack of informed consent, rather than lack of consent, which properly is cast as a tort action for negligence as opposed to battery); Robinson v. Cutchin, 140 F.Supp.2d 488, 492-93 (D.Md.2001). Noting that “Maryland tort law ... recognizes and protects an individual’s right to determine what shall be done with his or her body,” and asserting that “no other case in Maryland addresses [or has addressed] the question presented by this case,” the appellant submits that the pronouncement in Sard with respect to the informed