United States: Maryland Court Of Special Appeals Says No Breach Of Contract Claim Unless Doctor Makes Special Promise Regarding Medical Treatment

In a decision handed down on April 27, 2017 in the case of Heneberry v. Pharoan, the Maryland Court of Special Appeals rejected a breach of contract claim against a doctor who failed to completely perform a surgical procedure. ¹

Valerie Heneberry ("Heneberry") filed her Complaint in the Circuit Court for Baltimore County, alleging that Bashar Pharoan ("Dr. Pharoan"), in performing an appendectomy for acute appendicitis, failed to completely remove her appendix in contravention of his agreement to perform an appendectomy. Heneberry claimed that this failure caused her severe pain and resulted in her having to undergo an additional surgical procedure to remove the remaining appendiceal stump.

After both parties had ample opportunity to argue and brief this issue, the trial court granted Dr. Pharoan's motion to dismiss Heneberry's breach of contract claim for failure to state a claim upon which relief may be granted.

On appeal, the Court's attention was focused on whether Heneberry was required to and did properly allege that Dr. Pharoan made an additional, separate promise sufficient to establish a breach of contract claim.

Importantly, Heneberry did not argue that Dr. Pharoan specifically warrantied the outcome of the surgery or a special promise to cure, as is the basis for other breach of contract cases. In fact, counsel for Heneberry conceded before the Circuit Court that Heneberry does "not claim at all that somehow that there was a promised result." In addition, the consent form executed by Heneberry prior to surgery did not provide any indication of an additional promise or warranty of success. In fact, the consent agreement expressly provided that "[n]o warranty or guarantee has been given to me by anyone as to (a) the results that may be obtained from the procedures" that were to be performed as indicated in the first paragraph of the form. Heneberry, 2017 WL 1507672, at *14.

Indeed, when the circuit court inquired into what evidence could satisfy "the need to establish that some special promise, special agreement, expressed agreement was made," Heneberry's counsel could not provide one, stating only that: "This is just so straight forward. [Dr. Pharoan] made a representation this is how the surgical procedure will be, and this is what he was going to do. And the bottom line is, Your Honor, no matter how many words we parse, he didn't do it." Heneberry, 2017 WL 1507672, at *20 Neither the trial nor the appellate courts were convinced.

The 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. Heneberry, 2017 WL 1507672, at *11 (citing Benson v. Mays, 245 Md. 632, 636 (1967)). The Court reiterated that, 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. Heneberry, 2017 WL 1507672, at *11 (citing Dingle v. Belin, 358 Md. 354, 372 (2000) ("Malpractice is predicated upon the failure to exercise requisite medical skill and is tortious in nature. The action in contract is based upon a failure to perform a special agreement; Sard v. Hardy, 281 Md. 432, 451-52 (1977).²

Because Heneberry could not establish a case for breach of contract without an express promise separate from the agreement to perform the surgery, the Court of Special Appeals affirmed the trial court's decision, ruling that Dr. Pharoan was entitled to judgment as a matter of law.

This case serves as a warning to medical providers to avoid making assertions which may be seen as special promises regarding medical treatment. This includes guarantees regarding recovery period or effectiveness of treatment. Medical providers should also work with their attorneys to ensure that authorizations for medical treatment contain language properly disclaiming such guarantees or promises.

Footnotes

¹Heneberry v. Pharoan, 2017 WL 1507672, at *1 (Md. Ct. Spec. App. Apr. 27, 2017).
² Other jurisdictions following this principle include Kansas, New York, Pennsylvania, and California.

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