In its unreported opinion filed on March 17, 2017, the Court of Special Appeals of Maryland (“Maryland Appellate Court”) affirmed the trial court dismissing the Maryland medical malpractice plaintiff’s breach of contract claim in her Maryland medical malpractice complaint where the plaintiff’s surgeon left the stump of the plaintiff’s appendix during an appendectomy.
The Maryland medical malpractice plaintiff had an appendectomy performed by the defendant surgeon for acute appendicitis during which the surgeon failed to completely remove her appendix, allegedly in contravention of his agreement to perform an appendectomy. The Maryland medical malpractice plaintiff alleged that this failure caused her severe pain and resulted in her having to undergo an additional surgical procedure to remove the remaining appendiceal stump.
The Maryland medical malpractice plaintiff included in her Maryland medical malpractice complaint a count alleging breach of contract. The defendant filed a motion to dismiss the breach of contract count, and the trial court granted the motion. After the Maryland medical malpractice jury returned a defense verdict, the plaintiff filed her appeal.
The Maryland Appellate Court stated that although 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; 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.
In the case it was deciding, the Maryland Appellate Court stated that the plaintiff alleged in her breach of contract count virtually the same facts as those alleged in the original complaint for negligence, adding no new allegations to establish any special promise or warranty in addition to the defendant’s agreement to perform an appendectomy. Furthermore, the informed consent form signed by the plaintiff prior to the surgery did not provide any indication of any additional promise or warranty.
The Maryland Appellate Court held that because the plaintiff could not establish a case for breach of contract without an express promise separate from the agreement to perform the surgery, the trial court correctly determined that the defendant surgeon was entitled to judgment as a matter of law. The Maryland Appellate Court stated, “we 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. In some cases, however, the court may find that these special circumstances exist and that a jury may consider whether the physician breached a contract that is separate and distinct from the physician’s agreement to provide medical treatment.”
Source Heneberry v. Pharoan, No. 2440.
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