Dingle v. Belin

³⁵⁷ WILNER, Judge. The issue before us was characterized by the Court of Special Appeals in this case as one of “ghost surgery.” The more precise question is whether a surgeon who is employed by a patient to perform certain surgery and who agrees, as part of that employment, to do the actual cutting, leaving to assisting residents a subordinate role, may be held liable for breach of contract, distinct from negligence in the performance of the surgery or negligence associated with the failure to obtain informed consent from the patient, if the surgeon attends and participates in the surgery but permits a resident to do that cutting. The Circuit Court for Baltimore City concluded that the claim for breach of contract made by respondent Deborah Belin was, in effect, subsumed in her alternative claims of negligence and, for that reason, entered judgment as a matter of law on the breach of contract action at the conclusion of the evidence. The Court of Special Appeals reversed that part of the judgment.

Belin v. Dingle, 127 Md.App. 68 , 732 A.2d 301 (1999). Although we do not consider what allegedly occurred here to be “ghost surgery,”on the facts of this case we agree that a claim for breach of contract was sufficiently pled and proved to warrant submission of that claim to the jury. We shall reverse the judgment of the Court of Special Appeals dealing with that claim, however, because we conclude that the essential underpinning of the claim was, in fact, submitted to the jury, which determined the issue in the doctor’s favor. BACKGROUND On June 29, 1993, Ms. Belin, employed petitioner, Lenox Dingle, a general surgeon with operating privileges at Mercy Hospital in Baltimore, to perform a laparoscopic cholecystectomy—the removal of her gall bladder through a small incision in her abdomen.

In brief, the surgery involves making the incision and inserting at least three ports into the abdomen. Carbon dioxide is introduced into the abdomen to expand the area and make it more visible. A camera, inserted through ³⁵⁸ one of the ports, displays the interior on two high-definition television monitors. Observing the monitor, one physician, through another port, retracts the organs and tissues in order to isolate the gall bladder and the structures that connect it to other organs and tissues, and a second physician, also observing the monitor, cuts and clips those connecting structures and removes the gall bladder through a port.

The surgery occurred at Mercy on July 2. Dr. Dingle was assisted by a medical student and by a resident, Dr. Magnuson, who was just beginning her fourth year of residency training. The student was responsible for operating the camera, which was done properly. Dr. Dingle did the retractions, exposing the field.

Dr. Magnuson dissected the gall bladder and removed it. She and Dr. Dingle regarded the surgery as routine, without incident. There was, however, a problem. One of the connecting structures that needed to be dissected was the cystic duct, which runs from the gall bladder to the common bile duct.

The common bile duct runs from the liver to the intestines. Instead of dissecting the cystic duct, Dr. Magnuson dissected and clipped the common bile duct, which resulted in the drainage of bile into Ms. Belin’s abdomen. That, in turn, led to a great deal of pain and discomfort and to the need for extensive corrective surgery at Johns Hopkins Hospital. In November, 1996, after having waived arbitration pursuant to Maryland Code, § 3-2A-06(b) of the Courts and Judicial Proceedings Article, respondent filed suit against Dr. Dingle, Dr. Magnuson, and Mercy Hospital in the Circuit Court for Baltimore City.

The amended complaint now before us contained four counts—negligence based on the lack of informed consent, battery, negligence in the performance of the surgery, and breach of contract. Aside from the negligence alleged as part of the lack of informed consent, Dr. Dingle was not charged with any separate negligence in delegating duties or responsibilities to Dr. Magnuson. The claim of general negligence focused solely on the actual conduct of the surgery. ³⁵⁹ The battery count was dismissed by the court at the end of respondent’s case and is no longer an issue. The claim for breach of contract by Dr. Dingle was dismissed by the court at the end of the entire case.

The correctness of that ruling is the heart of this appeal. The counts for negligence arising from the lack of informed consent and negligence in the performance of the surgery were submitted to the jury, which returned verdicts for the defendants. The claims for breach of contract and lack of informed consent were both based on the assertion that, when Ms. Belin -employed Dr. Dingle, she insisted, and he agreed, that, although he would be assisted in the surgery by one or more residents, he would do the actual cutting and removal of the gall bladder. In Count One—lack of informed consent—she alleged that “[bjecause Belin was aware that Mercy was a university affiliated hospital and often used for teaching inexperienced residents in various surgical techniques, Belin requested and received assurances from Dingle that he would perform the surgical procedure in the cholecystectomy and only use a resident to assist him as was absolutely necessary.” The thrust of Count One was the assertion that, without Belin’s knowledge or consent, the resident Magnuson “played a very active role in the surgery” and “did the cutting, clamping and stapling that should have been performed by [Dingle]” and that, by failing to inform Belin of the scope of responsibilities that would be performed by Magnuson, Dingle and Magnuson “breached their duty to secure the fully informed consent of Belin prior to commencing operating upon her.” Had she been aware of the active role to be played by Magnuson, Belin asserted, she would not have consented to having the surgery performed at Mercy or by Drs.

Dingle and Magnuson. For that breach of duty, Ms. Belin sought compensation for all injuries and losses, past, present, and future, sustained by her, all of which, she claimed, were caused by the defendants’ negligence in failing to obtain her informed consent. Count Four, alleging the breach of contract, incorporated all of the allegations stated in the other counts. It added that ³⁶⁰ Dingle had entered into an oral contract with Belin under which he had agreed “that he would do the identification of the anatomy and the cutting and clipping required during the [surgery] and not a resident or other assistant,” and that, in consideration of that agreement, she agreed to allow Dingle to perform the surgery.

Dingle breached that contract, she averred, by permitting Dr. Magnuson to perform the cutting and clipping of the gall bladder and related structures. The same measure of damages was asserted—“compensation for all injuries, damages and losses, past, present and future, which she has sustained, is sustaining and will sustain in the future, all of which were caused by the breach of contract.” It was undisputed that Drs. Dingle and Magnuson both participated in the surgery, that Dr. Dingle did the necessary retractions, and that Dr. Magnuson performed the dissections and removed the gall bladder. It was also undisputed that Ms. Belin had no contact whatever with Dr. Magnuson before the surgery, although she was aware that one or more residents would be assisting Dr. Dingle.

The evidence regarding the alleged contract and what Dr. Dingle said and agreed to do was in sharp dispute. Ms. Belin testified that she told Dingle “that I wanted him to be the one that was going to cut me and identify the gall bladder and take it out,” that he advised her that he could not do the surgery by himself, and that she said she understood “but if you have a resident in there, I just want that person to maybe suture me up.” She added, “I want you to be the one to do my surgery. And he agreed.” Ms. Belin informed the jury that, as a surgical technician who worked at Mercy, she was aware that it was a teaching hospital and that surgeons often allowed residents to play a major role in surgery, and she did not want her surgery to be used for training purposes. The written consent that Ms. Belin signed authorized Dr. Dingle “and/or such assistants as may be selected and supervised by him” to perform the laparoscopic cholecystectomy.

The form has a place for “Special remarks or comments by patient,” which was left blank. There was no indication on the ³⁶¹ written consent form, in other words, of any allocation between Dr. Dingle and the assistants selected and supervised by him as to what, precisely, each was to do during the surgery. Dr. Dingle denied that he ever had the conversation testified to by Ms. Belin and stated that he never would have agreed to the conditions she alleged. Although at one point he said that, to satisfy those conditions, the surgery would have to have been performed at another hospital, Dr. Dingle indicated that, if faced with that demand, he would have offered Ms. Belin only two options—“allow me to do what I thought was best unrestricted, or to get another surgeon.” The evidence was essentially undisputed that the particular surgery requires three medical participants—one to operate the camera, one to do the necessary retractions, and one to do the dissection and removal.

It would thus not have been possible for Dr. Dingle to do both the retraction and the dissection and removal, as Ms. Belin said he agreed to do. Dr. Dingle and the defense experts opined that the retraction and exposure of the field was often the more difficult and demanding aspect of this kind of laparoscopic surgery. One of Dr. Dingle’s expert witnesses, Dr. Bailey, testified that in most instances the attending surgeon does the retracting and the resident does the dissecting and clipping. The reason, he said, was that the retraction requires a high hand-to-eye skill level, to be able to manipulate and maneuver the gall bladder and keep it properly exposed.

Ms. Belin’s expert witness, Dr. Goldstone, agreed that it would not breach the standard of care for the resident to do the cutting and clipping and the attending surgeon to do the retracting, “[pjrovided there isn’t some previous agreement that this would not occur.” All of the experts agreed that, when one surgeon does the retraction and another does the clipping and cutting, both consult and agree on where the clips are to be put and where the cuts are to be made. They both have the benefit of the television monitors. Dr. Goldstone testified that “not one clip is applied until you both agree where it is to be put” and “not one cut is made with the scissors until you both agree that the cut is being made in the proper place.” The evidence indicat ³⁶² ed that that procedure was followed in Ms. Belin’s case—that Drs. Dingle and Magnuson consulted and agreed on where the cuts were to be made and the clips applied.

At the end of the plaintiffs case, the defendants moved for judgment on all counts. Dingle submitted on the negligence claim but argued that the breach of contract claim was essentially a restatement of the negligence action, for, in order to recover for breach of contract, Belin would have to prove negligence arising out of the contractual relationship. He urged that a lack of informed consent claim does not “go to the mechanism by which the operation is to be conducted” or to “resident involvement” and that there was no battery because the cutting of the common bile duct was not intentional. Ms. Belin responded that the breach of contract action arose from Dr. Dingle’s commitment to do the cutting and not from any negligence arising from the contract.

Although expressing the belief that the breach of contract action was “duplicitous,” the court reserved judgment on that count. It granted the motion only as to the battery claim. Following the defense case, the motion for judgment was renewed. Dr. Dingle once again argued that, to recover for breach of contract, Ms. Belin would have to prove negligence, for “[s]he does not have any special damages because of the alleged breach of contract.” Moreover, he contended that there was no indication of a higher risk for the particular injury that occurred because a resident did the clipping and cutting and no indication that anything that occurred to her that would not have occurred had Dr. Dingle done the clipping and cutting.

Ms. Belin’s response to that argument and to the motion itself, as it pertained to the breach of contract claim, is unclear from the record. This is another instance in which the proceedings were recorded by audio-visual means, rather than by a court reporter, and there are apparent gaps in the record. The transcript made from the audio tape shows counsel stating that “as long as it’s made clear to the jury that this contractual issue is part of the cause—and or the negligence—then fine, I have no problem with you granting the motion for dismissal.... So, as long as that can be consid ³⁶³ ered by the jury as part of negligence by—then, that’s fine with me.” The court then granted the motion to dismiss the breach of contract claim, stating, according to the transcript, “I think the damages from a breach of contract would be much more liberal—than—and therefore—.

So I will grant the motion for judgment.” The remaining negligence counts—one based on negligence in the performance of the surgery and the other based on lack of informed consent—were submitted the jury. In its instructions to the jury, the court essentially merged the two claims of negligence on the part of Dr. Dingle— negligence in the performance of the surgery and negligence in failing to obtain an informed consent. It informed the jury that a health care provider is negligent if the provider “does not use that degree of care and skill which a reasonably competent health care provider engaged in a similar practice and acting in similar circumstances would use” or, “[p]ut another way, a health care provider is negligent if he or she breached or deviated from the applicable standard of care.” The court immediately followed that instruction with the statements that “[a] surgeon must obtain consent from the patient to perform a surgery” and “[t]o obtain the required consent, the surgeon must explain the surgery to the patient and warn of all material risks or dangers in the surgery.” A material risk, the court continued, “is one which a physician knows or ought to know would be significant to a reasonable person in the patient’s position in deciding whether or not to submit to a particular medical treatment or procedure.” The surgeon is negligent, it added, “if the surgeon fails to disclose to the patient all the material information, risks, and warnings.” In a prepared verdict sheet, four questions were submitted to the jury. The first asked simply whether Dr. Dingle was “negligent causing Plaintiff, Deborah Belin, injuries.” It did not distinguish between negligence in the performance of the surgery and negligence in failing to obtain an informed consent.

The second asked the same question as to Mercy Hospital, based on the conduct of Dr. Magnuson. The jury was instructed that, if the answer to those questions was “no,” ³⁶⁴ it was to stop and return a verdict for the defendants. A third question, to be addressed only if there was an affirmative answer to question (1) or (2), related to damages. The parties agreed that Ms. Belin sustained hospital bills of $50,024 and doctor bills of $30,345 for the corrective measures necessitated by what had occurred and that Dr. Dingle was paid $2,800 for performing the surgery.

Ms. Belin was also, of course, seeking substantial damages for pain and suffering. In accordance with the court’s ruling on the breach of contract claim, that claim was not mentioned in any of the closing arguments. The question of whether Dr. Dingle ever agreed to the conditions asserted by Ms. Belin was argued, however. Plaintiffs counsel told the jury that, in order to find for the defendants, the jury, among other things, would “have to find that my client, Deborah Belin, is lying regarding her request made to Dr. Dingle.” Defense counsel reminded the jury of Dr. Dingle’s denial that the conversation testified to by Ms. Belin ever occurred and suggested that, at most, she may have asked whether Dr. Dingle was going to be “her surgeon.” Because of its negative answers to the first two questions, finding no negligence on the part of either doctor, the jury, following the court’s instructions, did not address the issue of damages.

On appeal to the Court of Special Appeals, Ms. Belin complained, among other things, that the trial court erred in dismissing the breach of contract action on the theory that it was subsumed under the negligence count, and, as noted, the intermediate appellate court, in a split decision, found merit in that complaint. One member of the panel, based on the recorded response by plaintiffs counsel to Dr. Dingle’s motion and the fact that counsel was not inhibited from arguing the alleged agreement to the jury in the context of the lack of informed consent claim, concluded that Ms. Belin had effectively consented to the dismissal and thus failed to preserve her complaint for appellate review. The panel majority found otherwise. After listening to the audiotape recording, it concluded that the transcript of the argument on the motion was incomplete and did not record everything said at the bench ³⁶⁵ conference, and, in the absence of any argument of non-preservation by Dr. Dingle, it accepted counsel’s assertion that he did object to the dismissal.

Relying principally on a New Jersey case, Perna v. Pirozzi, 92 N.J. 446 , 457 A.2d 431 (1983), the appellate court concluded that, if Dr. Dingle agreed to the conditions asserted by Ms. Belin and then failed to observe that agreement, his “contractual obligation was separate from and existed independent of his duty to make sure that no deviation from the applicable standard of care occurred during the operation.” Belin v. Dingle, 127 Md.App. at 81 , 732 A.2d at 307 . The court went on to hold that, even if the patient proves a breach of the contract, the doctor is not liable for injuries that the patient would have suffered had there been no breach. In that regard, it declared that, once the jury finds that the contract was breached and the operation was unsuccessful, “the patient has the burden of persuasion on the issue of what damages resulted from the unintended consequences of the operation, i.e. those injuries that would not have followed from a successful operation” and “the physician has the burden of persuasion on the issue of what injuries would have followed the unsuccessful operation even if the physician had not breached the agreement.” Id. at 82 , 732 A.2d at 308 . We granted certiorari, principally to consider whether a physician who, as part of his or her contractual undertaking with a patient, agrees to an allocation of tasks between the physician and other physicians, may be liable for breach of contract if that agreement is violated.

DISCUSSION Preservation As noted, the Court of Special Appeals panel was split on whether Ms. Belin effectively consented to the dismissal of her breach of contract claim, with the understanding that she could argue the alleged agreement with Dr. Dingle in the context of her action for lack of informed consent. The panel majority gave plaintiffs counsel the benefit of the doubt, and ³⁶⁶ so shall we. There are apparent gaps in the record as to what was said in response to the defense motion, both by plaintiffs counsel and by the court, and it is significant that Ms. Belin clearly objected to the same motion when made at the end of her case. Even if she failed to articulate a proper objection at the conclusion of the evidence, however, the Court of Special Appeals had discretion to consider the issue, which it chose to do.

As we indicated, non-preservation was not raised as an issue by Dr. Dingle in the Court of Special Appeals. Although it was raised by him, for the first time, in his petition for certiorari, we did not grant the petition to review an issue of preservation. We granted the petition to consider the substantive issue noted above. Sorting Out Causes of Action Ms. Belin urges that there is a proper cause of action for breach of contract when a physician promises to fulfill a particular surgical function but fails to do so, resulting in harm, and that that action is independent of any negligence on anyone’s part.

Her point is that Dr. Magnuson made a mistake in cutting and clipping the common bile duct which, even if not negligent, might not have been made had the cutting and clipping been done by Dr. Dingle, a more experienced surgeon. Dr. Dingle contends that Maryland should not recognize, under any theory, “a claim for ‘ghost surgery’ against a physician arising out of an alleged agreement regarding the role a resident is to play during a surgical procedure.” At the very least, he contends, such a claim should not be permitted as part of an action for lack of informed consent or breach of contract. Creating a duty to disclose a resident’s precise role, he warns, “would permit patients to choreograph how an operation is to be performed negating all possibility of informed medical judgment occurring during the operation.” The courts, in proper cases, have recognized a number of different causes of action that might lie against a health care provider when a medical procedure or course of therapy produces unintended and harmful results or fails to produce ³⁶⁷ the positive results reasonably anticipated by the patient. These actions, often bearing the common appellation of “malpractice,” differ in their underlying theory, in some of the elements that must be proved, and in the kind of damages that may be recovered.

Most are tort-based, sounding either in battery or in negligence of one kind or another, and, occasionally, in misrepresentation or fraud; some are contract-based. When they are pursued either alternatively or in combination, care must be taken to keep the actions separate and not to allow the theories, elements, and recoverable damages to become improperly intertwined. We have long recognized, as have most courts, that, except in those unusual circumstances when a doctor acts gratuitously or in an emergency situation, recovery for malpractice “is allowed only where there is a relationship of doctor and patient as a result of a contract, express or implied, that the doctor will treat the patient with proper professional skill and the patient will pay for such treatment, and there has been a breach of professional duty to the patient.” Hoover v. Williamson, 236 Md. 250, 253 , 203 A.2d 861, 862 (1964). The relationship that spawns the malpractice claim is thus ordinarily a contractual one.

Largely because of the greater facility offered by tort-based actions for recovering damages for non-economic loss—predominantly pain, suffering, and disfigurement—malpractice actions have traditionally been tort-based, the tort arising from the underlying contractual relationship. See Schaefer v. Miller, 322 Md. 297 , 587 A.2d 491 (1991). 1 ³⁶⁸ The traditional action has been for negligence in the performance (or non-performance) of a course of therapy or a medical procedure. 2 The negligence consists of the breach of the duty that a physician has “to use that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which [the physician] belongs, acting in the same or similar circumstances.” Shilkret v. Annapolis Emergency Hosp., 276 Md. 187, 200 , 349 A.2d 245, 252 (1975). To recover in such an action, the plaintiff must show that the doctor’s conduct—the care given or withheld by the doctor— was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the act (or omission) giving rise to the cause of action. See Maryland Code, § 3-2A-02(c) of the Courts and Judicial Proceedings Article.

That action necessarily focuses on the manner in which the physician diagnosed and treated the patient’s medical problem and, except as it may bear on other issues, such as contributory negligence, causation, or damages, not so much on what was told to the patient or what the patient’s expectations may have been. In Sard v. Hardy, 281 Md. 432 , 379 A.2d 1014 (1977), we recognized, as a separate negligence-based (rather than battery-based) cause of action, the performance of a medical procedure by a physician without the informed consent of the patient. In the course of her third pregnancy, the plaintiff, Ms.