The Lawletter Vol 42 No 6
Emily Abel, Research Attorney, National Legal Research Group
On March 17, 2017, in Heneberry v. Pharoan, 232 Md. App. 468, 158 A.3d 1087 (2017), the Maryland Court of Special Appeals addressed the issue of what is required to prevail on a breach-of-contract claim in a medical malpractice action. The plaintiff, Valerie Heneberry ("Heneberry") who was suffering from acute appendicitis, received an appendectomy from Dr. Bashar Pharoan ("Dr. Pharoan"). During the surgery, Dr. Pharoan removed most of Heneberry's appendix, but left the "stump" of the appendix. Heneberry alleged that because of Dr. Pharoan's failure to remove her entire appendix, she experienced severe pain and was forced to undergo an additional surgical procedure to remove the remainder of her appendix.
In addition to bringing claims for negligence and loss of consortium, Heneberry included in her medical malpractice complaint a count alleging that Dr. Pharoan had breached their contract. Specifically, Heneberry alleged that Dr. Pharoan had a "contractual obligation to perform an appendectomy, which is the removal of the appendix, not a portion of the appendix, and [there was] no testimony that he intended to leave a portion behind." Id. at ___, 158 A.3d at 1094.
The lower court granted Dr. Pharoan's motion to dismiss for failure to state a claim on that count, and after the jury returned a verdict in favor of Dr. Pharoan on the other counts, Heneberry appealed the dismissal. With regard to this count, the Court of Special Appeals turned to whether Dr. Pharoan was entitled to judgment as a matter of law on the breach-of-contract claim.
The court noted that "[a]lthough Maryland courts generally recognize that the doctor-patient relationship is contractual in nature, and that the doctor impliedly agrees to exercise a reasonable degree of care and medical skill, the failure to exercise that care is tortious in nature and is generally not governed by contract law." Id. However, "to establish a prima facie case of breach of contract where the facts relate to a physician's performance of a medical procedure, the plaintiff must show that the physician made an additional promise or warranty separate and apart from the physician's agreement to properly perform the procedure." Id.
In her case, Heneberry's only allegation was that Dr. Pharoan agreed to perform an appendectomy and not all of the appendix was removed; thus the contract was breached. The court noted that Heneberry alleged "virtually the same facts" to support both her breach-of-contract and negligence counts and that "Heneberry's counsel was never able to articulate to the trial judge any evidence of a separate promise in addition to Dr. Pharoan's ordinary obligation to properly perform the appendectomy." Id. at ___, 158 A.3d at 1095.
The court reiterated the well-established principle that in Maryland, courts do "not recognize contract actions in medical malpractice cases unless the physician made some special promise or warranty apart from a promise to use the medical skill necessary to deliver the treatment in the manner generally accepted by other physicians in the community." Id. at ___, 158 A.3d at 1097. To counter this principle, Heneberry cited to numerous out-of-state cases that the court did not find persuasive.
The court found that Heneberry had not alleged that Dr. Pharoan had made any promises or warranties "separate from his obligation to perform the appendectomy with the requisite standard of care." Id. at ___, 158 A.3d at 1099. The court concluded that "Heneberry's claim clearly overlooks a necessary element to establish a case for breach of contract when the facts of the case relate to a physician's delivery of medical care. Without an additional express promise or warranty, Heneberry's claim that she suffered damages as a result of Dr. Pharoan's failure to completely remove all of her appendix falls squarely within the traditional realm of medical negligence." Id. The court affirmed the lower court's dismissal of Heneberry's breach-of-contract claim.
The court's ruling in this case makes it clear that, for a plaintiff in a medical malpractice claim to have a viable breach of contract claim against his or her doctor, the doctor must have promised or warranted something more than the usual obligation to perform the procedure in conformity with the standard of care. Thus, absent a warranty of a specific outcome or other promise, a plaintiff in Maryland will likely not have a claim for breach of contract in a medical malpractice action.