Medical malpractice or breach of contract

      The doctor agreed to perform a certain medical procedure. He did not perform the procedure completely. This required the patient to undergo the procedure again, by a different doctor. Did the original doctor's inability to completely perform the procedure in question amount to a breach of contract because this is what he had been engaged to do? This was the basis for the appeal in Heneberry v. Pharoan, No. 2440, September Term 2015 (Maryland Court of Special Appeals, April 27, 2017).
      The plaintiff in the actual case went to the hospital complaining of abdominal pain. Acute appendicitis was diagnosed, and laparoscopic surgery was performed to remove the appendix. The surgical notes stated that the procedure was uneventful, and the patient responded well to the surgery. However, it was later discovered that the surgeon had left the stump of the appendix intact. The plaintiff subsequently developed postoperative complications coupled with severe pain and suffering, all of which required a second surgery to remove the remainder of the vestigial organ. The plaintiff then proceeded to make a full recovery.
      The plaintiff filed a lawsuit claiming that the doctor was negligent, that she suffered a loss of consortium as a result, and that the doctor breached a contract he had with her to completely remove her appendix. Before trial, the defendant moved to have all claims dismissed. The trial court allowed the negligence and loss of consortium claims to move forward but dismissed the breach of contract claim. At trial, the jury found for the defendant on the negligence claim, and the plaintiff appealed the breach of contract issue.
      The Appellate Court first discussed the consent form, part of which read, “No warranty or guarantee has been given to me by anyone as to the results that may be obtained from the procedures covered by Paragraph 1.” The court also noted that the plaintiff never indicated “. . .that there was any express promise, special promise [or] special agreement in connection with this procedure.” Therefore, as a matter of law, there can be no contract without the finding of an additional special promise or agreement that would lend itself to be considered as an express warranty or agreement to perform a specific act.
      The plaintiff's argument was a simple one: the doctor had a “contractual obligation” to perform an appendectomy—not a partial appendectomy. There was no testimony that there was a medically-supported reason to leave a piece behind. He was engaged to remove the whole appendix and he didn't; hence, he breached his contractual obligation inherent in the doctor-patient relationship.
      The court noted that though the doctor-patient relationship is essentially contractual in nature, the doctor's obligation is 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.” The court continued by noting that breach of contract claims can exist but only in cases where “. . .the facts relate to a physician's performance of a medical procedure, …[and] the physician made an additional promise or warranty separate and apart from the physician's agreement to properly perform the procedure.” In other words, medical malpractice is based on one's failure to exercise a certain degree of skill, the deficit of which is a tort; whereas a breach of contract is based on one's failure to perform some type of special agreement. Citing legal precedent, the court stated that. . .a breach of contract claim may be available in limited circumstances when the medical provider makes an additional promise or gives a separate warranty. As an alternative to tort-based actions, a separate action for breach of the contract may lie when the doctor acts in contravention of a contractual undertaking, at least in some settings. Those actions are often founded either on a breach of warranty theory, alleging a warranty by the physician of a particular result, or on a promise independent of a medical procedure.Courts confronted with the question whether a physician may be liable in contract for breach of express warranty have agreed generally that a physician is not an insurer of the success of his treatment and absent an express agreement does not warrant or guarantee that he will effect a given result. The argument against imposing contractual liability on the physician is that considering the unpredictability of medical results and the differences in individual patients, it is unlikely that the physician of integrity can in good faith promise a particular outcome.. . .medical malpractice cases typically sound in negligence and are not determined by the laws of contract, unless unique circumstances are present. Accordingly, 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. (Cits. Omit.)
      The court noted that these special promises often take the form of the doctor stating to the patient that “your condition will not be worsened” as a result of the recommended treatment or that the patient “would be cured” by undergoing the procedure. In another case, the doctor promised that the patient “would be able to return to work in 2 days or less” (problems were encountered during the surgery, and the patient was out of work for more than a month). One can also contract for a specific result to be obtained (complete and immediate sterilization). In another case where a breach of contract was found to exist, the doctor told his ulcer-ridden patient that he could “throw his pill box away” and that the patient would be able to “eat as you want, drink as you want, and go as you please.”
      The court did note that simple statements of reassurance and generalizations as to experiential expectations are not and should not be construed to rise to the level of being considered as contractual promises. It upheld the trial court's finding that there was no contract; thus, the breach of contract claim could not be litigated.


      There are many reasons a plaintiff might eschew a claim for negligence and opt for one sounding in contract. Negligence actions require plaintiffs to obtain expert witnesses, contract actions don't. A plaintiff might have missed the shorter Statute of Limitations associated with negligence claims; those applying to breaches of contract are often much longer. Negligence claims are often accompanied by damage caps that would not apply to contract actions. Other tort reform measures may play a role as well. The point is that plaintiffs can assert all manners of claims against you, not just those sounding in professional negligence.
      Insofar as contract actions are concerned, I often hear patients say that the previous orthodontist said that he promised yada, yada, yada. Assuming that their recounts of the conversation were true, some of the statements did come pretty close to guaranteeing or warrantying a certain or specific result. Well, like Forrest Gump's mama used to say, “Stupid is as stupid does.”
      All the legal mumbo jumbo aside—like whether the promise made was over and above that inferred within the nature of the doctor-patient relationship, whether additional consideration was given to validate a separate promise, was there mutuality of obligation, what was competency and capacity of the parties, etc, etc—the bottom line is something we all should have learned the first day of dental school: The only thing you ethically or legally should say is that you will do the best that you can do to the utmost of your abilities.
      Promising a patient that you will achieve specific results, within a certain time frame, using a specific piece of hardware, will one day come back to bite you on the you know where. I once heard a doctor I knew well tell his patient that he promised to treat him like family. I had to look away because I knew he couldn't stand his brother-in-law.