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Even though a jury agreed that there was a lack of informed consent, a Maryland woman who had agreed to the surgical removal of a mass in her breast cannot complain that she was “battered” when her surgeon cut into milk ducts during the procedure, Maryland’s highest court held April 13. Mol� v. Jutton, No. 126. Tasha Mol� consulted Dr. Jerrilyn Jutton about two lumps in her left breast, one determined to be a simple cyst, the other a complex one containing a solid nodule, both of which were thought to be potentially malignant. Jutton first attempted to determine malignancy by aspirating the cysts, drawing out fluid. When those attempts failed, she recommended surgery to remove the solid nodule. Before operating, Jutton told Mol� some, but not all, of the risks involved. Mol� consented in writing to “excision breast mass left,” and agreed that if “conditions unknown prior to treatment” were revealed that made it advisable to extend the original procedure, Jutton would be authorized to “perform such procedures or render such treatment as . . . necessary or advisable in the exercise of professional judgment.” During the surgery, tissue surrounding the cysts was removed and some of Mol�’s milk ducts were cut. Jutton later testified that the “breast is composed of milk ducts, milk ducts get cut when you do incision.” Mol� sued Jutton, her employer, Linhardt Surgical Assocs., and another doctor, alleging medical negligence and battery, and asserting that Jutton’s cutting of ducts leading to the left nipple exceeded the scope of Mol�’s consent. At the trial’s end, the court denied Mol�’s request for a jury instruction on battery, but the jury still returned a verdict in her favor, awarding $22,500 in damages for negligence. Nonetheless, Mol� appealed the court’s refusal to give the battery instruction. Maryland’s “battery” definition includes intentional touching of a person without his or her consent and requires that the touching either cause “physical pain, injury or illness,” or be “offensive” to the person’s “reasonable sense of personal dignity.” In an opinion by Chief Judge Robert M. Bell, the Maryland Court of Appeals cited the state’s agreement with the “general rule” that a claim under the informed consent doctrine must be pleaded as a tort action for negligence, rather than as one for battery. But, Bell noted, none of the court’s prior opinions had addressed the precise issue this case presented. The high court then adopted the analysis and rationale applied by Maryland’s federal district court in its 2001 case Robinson v. Cutchin, 140 F. Supp. 2d 488. In Robinson, where a woman who consented to a Caesarean section was subjected to an unauthorized tubal ligation, the district court had held that “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 consent.” In Mol�’s case, the high court agreed with the doctor that Mol�’s only complaint can be that Jutton had inadequately disclosed the potential risks associated with the procedure. Recounting the proof presented at trial, Bell concluded, “such is the evidence of lack of informed consent, not battery.” The panel unanimously upheld the trial court ruling.

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