Maryland Plaintiff Pursues Negligence and Contract Claims Against Doctor After Failed Appendectomy

The Court of Special Appeals of Maryland reviewed an interesting medical malpractice case on March 17, 2017 concerning a botched appendectomy.  The plaintiff in the case alleged that her doctor failed to completely remove her appendix when he performed the surgery.  She brought suit against the doctor for negligence and breach of contract.  After the circuit court granted the defendant’s motion to dismiss her breach of contract claim, the plaintiff appealed to the higher court.chest-xray-1526779-639x626-300x294

In October of 2011, the plaintiff went to the hospital complaining of abdominal pain.  The defendant diagnosed her with acute appendicitis and recommended that she undergo a laparoscopic appendectomy to remove her appendix.  In performing the surgery, the defendant removed most of the plaintiff’s appendix, but left the “stump” in place.  The plaintiff alleged that by leaving a portion of the appendix in her body, she experienced severe pain and required an additional surgical procedure that she had performed by another doctor.  She argued that the defendant was liable for breach of contract because he had a contractual obligation to perform an appendectomy, which is the removal of the appendix, not a portion of the appendix.

In Maryland, the failure of a physician to exercise reasonable care and medical skill, i.e., medical negligence, is generally not governed by contract law, despite the contractual nature of the doctor-patient relationship.  Rather, to establish a breach of contract claim 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 that is separate and apart from the physician’s agreement to properly perform the procedure.  The legal rationale for not imposing any contractual liability on the physician is that, when considering the unpredictability of medical results and the differences in individual patients, it would be unlikely that the physician could in good faith promise a particular outcome.  Therefore, absent unique circumstances, medical malpractice cases are typically viewed under negligence law and not determined by the laws of contract.

In reviewing the complaint, the appeals court observed that the plaintiff’s breach of contract claim was based exclusively on allegations that the defendant agreed to perform an appendectomy, and that not all of the appendix was removed.  The court noted that there were no allegations in the complaint to establish any special promise or warranty on the part of the defendant in addition to his agreement to perform an appendectomy, either verbally, or through the medical consent form that the plaintiff signed.  Accordingly, without an express promise separate from the agreement to perform the surgery, the plaintiff could not establish a case for breach of contract.

The medical malpractice attorneys at Foran & Foran, P.A. are experienced trial litigators representing Maryland plaintiffs in personal injury and negligence suits.  Our dedicated legal team understands that each case is important and can provide trustworthy legal guidance throughout the proceedings.  To consult with one of our knowledgeable injury lawyers, call (301) 441-2022 or contact us online and make your appointment today.

More Blog Posts:

Maryland Court Rules Expert Testimony Required to Establish Plaintiff’s Claim for Lack of Informed Consent, Maryland Personal Injury Blog, published August 18, 2016

Maryland Court Reviews Evidence of Causation in Medical Malpractice Appeal, Maryland Personal Injury Blog, published October 11, 2016