Heneberry v. Pharoan

⁴⁷² Berger, J. This appeal arises from a medical malpractice case in which the circuit court granted appellee, Bashar Pharoan’s (“Dr. Pharoan”) motion to dismiss one count of appellants’, Valerie Heneberry, et al. (“Heneberry”), 1 complaint. Heneberry alleges that 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 claims 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 question we address in this appeal revolves around whether Hene-berry was permitted—as a matter of law—to bring a claim against Dr. Pharoan for breach of contract.

The Circuit Court for Baltimore County granted Dr. Pha-roan’s motion to dismiss Count III (alleging breach of contract) of Heneberry’s amended complaint. Heneberry timely noted an appeal to this Court. On appeal, Appellant presents one issue for our review, 2 which we rephrase as follows: Whether the circuit court’s dismissal of Heneberry’s breach of contract claim was legally correct, where the basis of the claim was that Dr. Pharoan agreed to perform an appendectomy but did not remove the stump of her appendix. ⁴⁷³ For the reasons discussed below, we shall affirm the judgment of the Circuit Court for Baltimore County. FACTUAL AND PROCEDURAL BACKGROUND On or around October 15, 2011, Heneberry went to the Greater Baltimore Medical Center (GBMC) complaining of abdominal pain.

She was treated by Dr. Pharoan, the surgeon who was on call for the emergency room. After a CT scan, Dr. Pharoan diagnosed Heneberry with acute appendicitis and recommended that she undergo a laparoscopic appendectomy, a surgical procedure to remove the appendix. Dr. Pharoan performed the procedure at GBMC. His medical notes describe an apparently uneventful surgery and that Heneberry responded well to the surgery.

During the surgery, however, Dr. Pharoan removed most of the appendix, but left the “stump” of the appendix in place. Thereafter, Heneberry alleges that she experienced severe pain and was forced to undergo an additional surgical procedure, performed by a different physician, to remove the stump of the appendix left behind by Dr. Pharoan. Heneberry alleges that Dr. Pharoan’s failure to completely remove her appendix was the cause of her subsequent pain and surgery. On September 11, 2014, Heneberry filed a complaint in the Circuit Court for Baltimore County against Dr. Pharoan for medical malpractice.

Count I of the complaint was based on the grounds of negligence, and Count II alleged a loss of consortium. On March 17, 2015, Heneberry filed an amended complaint, this time adding Count III, a breach of contract claim based on the same facts. On March 31, 2015, Heneberry filed a motion for partial summary judgment on the issues of liability on the negligence count and on the breach of contract count. On June 2, 2015, the court denied partial summary judgment on Count I for negligence based on the existence of a dispute of material fact related to causation.

Thereafter, Dr. Pharoan filed a motion to dismiss Count III of the amended complaint, and on August 28, 2015, the court heard oral argument on the motion. In an ⁴⁷⁴ Order filed August 31, 2015, the circuit court granted Dr. Pharoan’s motion to dismiss for failure to state a claim on Count III, the breach of contract claim. The case proceeded to a jury trial on the issue of liability for medical negligence. The jury found in favor of Dr. Pharoan on Heneberry’s claim of negligence.

On December 16, 2015, He-neberry noted a timely appeal. DISCUSSION I. Before reaching the merits of this case, we first address a procedural concern regarding the circuit court’s consideration of materials appended to Dr. Pharoan’s motion to dismiss and his reply to Heneberry’s opposition. Heneberry argues in her appeal to this Court that Dr. Pharoan’s attempt to introduce a part of [Heneberry’s] deposition in support of their motion misdirects the court from construing the four corners of [Heneberry’s] Amended Complaint and introduced clear error. More specifically, the circuit court considered a consent form executed by Heneberry prior to surgery, as well as Heneberry’s deposition testimony, 3 in connection with Dr. Pharoan’s motion to dismiss.

The trial court explained the basis of its reasoning in the following way: [W]hen you turn to the second page of that consent form, Paragraph 4 reads, quote, 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 .... ⁴⁷⁵ [E]ven though that’s outside of the four corners of the pleadings, I think it is important to refer to [the consent form], and also important to note that [Heneberry], when deposed, never indicated that there was any express promise, special promise, special agreement in connection with this procedure. I do think and find that the Dingle case is instructive .... [S]ince there is no allegation of a special promise or agreement, any type of expressed warranty or agreement, then it is appropriate for the [c]ourt to grant [Dr. Pharoan’s] motion to dismiss as to the breach of contract claim under Count [III]. Accordingly, we first consider whether the trial court should have converted the motion to dismiss into a motion for summary judgment pursuant to Maryland Rule 2-322(c). The pertinent part of the Rule governing the disposition of preliminary motions provides: If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 2-501, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 2-501.

Md. Rule 2-322(c) (emphasis added). For purposes of our review on appeal, we treat the trial court’s grant of a motion to dismiss as one for summary judgment when the court “is presented with factual allegations beyond those contained in the complaint ... and the trial judge does not exclude such matters.” Nickens v. Mount Vernon Realty Group, LLC, 429 Md. 53, 62-63 , 54 A.3d 742 (2012) (quoting Okwa v. Harper, 360 Md. 161, 177 , 757 A.2d 118 (2000)); see also Smith v. Danielczyk, 400 Md. 98, 105 , 928 A.2d 795 (2007) (explaining that the appellate court assumes extraneous documents were considered by the trial court where “[t]he record does not indicate that the extraneous documents or averments were ‘excluded’ ” from the court’s ⁴⁷⁶ consideration); accord Anne Arundel Cnty. v. Bell, 442 Md. 539, 552 , 113 A.3d 639 (2015) (treating the trial court’s grant of a motion to dismiss as a grant of summary judgment where the court considered affidavits attached to the motion); Okwa, supra, 360 Md. at 177 , 757 A.2d 118 (treating the motion as one for summary judgment where the court relied on facts stated at a motions hearing and in the plaintiffs affidavit, but not in the complaint); Green v. H & R Block, Inc., 355 Md. 488, 501 , 735 A.2d 1039 (1999) (treating the trial court’s dismissal as a grant of summary judgment where the court in its memorandum opinion referred to exhibits appended to a motion filed by the defendant). We have held, however, that it is proper for a trial court to decide a motion to dismiss without converting it to a motion for summary judgment when the court considers, or does not exclude, materials that are central to the allegations in the complaint. See Advance Telecom Process LLC v. DSFederal, Inc., 224 Md.App. 164, 175-76 , 119 A.3d 175 (2015).

In Advance Telecom, where the material not excluded from consideration (a “Teaming Agreement”) was the document upon which the plaintiffs claim was based, we held that the document merely supplemented the allegations in the complaint, rather than adding new facts to the court’s consideration. Id. Like the “Teaming Agreement” in Advance Telecom, the language of the consent form in the instant case consisted of the sole basis for Heneberry’s allegation that an enforceable contract was formed prior to surgery. Indeed, Heneberry’s counsel averred at the motions hearing that the consent form provided the language of the alleged contract between Hene-berry and Dr. Pharoan.

Heneberry’s counsel stated the following: [Tjhere’s a potential for liability if you find, as a matter of law, that there was a breach of contract by looking at the informed consent, even if she doesn’t remember specifically what the language is. That’s why we too adopt and accept ... being bound by the informed consent because that is ... the surgical procedure he promised to do. ⁴⁷⁷ Heneberry alleged that Dr. Pharoan made certain promises to her. Those allegations were based on the language in the consent form. As such, the court’s consideration of the consent form did not convert the motion to dismiss into a motion for summary judgment.

In the circuit court’s oral opinion, the court also referred, specifically, to Heneberry’s deposition testimony, highlighting the absence of any indication that Dr. Pharoan made a separate or additional promise sufficient to establish a claim for breach of contract. Although it was not necessary to the court’s conclusion to consider anything other than the sufficiency of the allegations in the complaint, 4 the expressed reason for the court’s reliance on the testimony at Heneber-ry’s deposition was to emphasize the absence of facts necessary to establish a breach of contract claim in a medical malpractice case. The trial court, therefore, did not consider any additional facts, but rather the absence of certain necessary facts in materials outside of the four corners of the complaint. In addition to referring to these two documents appended to Dr. Pharoan’s motion and reply, the court also did not expressly exclude other materials appended to other court filings that were outside of Heneberry’s complaint and amended complaint.

See Danielczyk, supra, 400 Md. at 105 , 928 A.2d 795 . Assuming arguendo that the trial court’s consideration of these materials transformed the motion to dismiss to one for summary judgment pursuant to Md. Rule 2—322(c), the outcome would have been the same as there were no material facts were in dispute. Moreover, “when reviewing the grant of either a motion to dismiss or a motion for summary judgment, an appellate court must determine whether the trial ⁴⁷⁸ court was legally correct.” Hrehorovich v. Harbor Hosp. Cntr., Inc., 93 Md.App. 772, 785 , 614 A.2d 1021 (1992).

Because the trial court did not exclude all extraneous materials from its consideration of the motion to dismiss, we treat the trial court’s dismissal of the breach of contract claim as a determination of summary judgment in favor of Dr. Pharoan. Viewing the motion as one for summary judgment, the trial court was well within its discretion to consider the consent form and Heneberry’s deposition testimony, as well as other relevant documents submitted by the parties. See id. at 783-85 , 614 A.2d 1021 (1992). As we explained in Hrehorovich , “Rule 2-322(c) gives the trial court discretion to convert a motion to dismiss to a motion for summary judgment by considering matters outside the pleading.” Id.

We recognize that converting a motion to dismiss to a motion for summary judgment carries the risk of unfair prejudice to a non-movant by potentially denying that party “a reasonable opportunity to present material that may be pertinent to the court’s decision as required by Maryland Rule 2-501.” Worsham v. Ehrlich, 181 Md.App. 711, 722-23 , 957 A.2d 161 (2008). This risk, however, is not present here, where both parties had the opportunity to fully brief the issues on which the court based its determination and had the opportunity to submit materials pertinent to the court’s decision. Green, supra, 355 Md. at 502 , 735 A.2d 1039 (concluding the non-moving party suffered no unfair prejudice as a result of converting the motion where the court’s opinion turned on the plaintiffs failure to establish facts necessary to assert a prima facie case and both parties had fully briefed that issue). In this case, Heneberry suffered no unfair prejudice as a result of converting the motion to dismiss into a motion for summary judgment.

The central issue in this case is 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. Both parties had ample opportunity to argue and brief this issue to the trial court. Critically, Heneberry filed a motion for partial summary judg ⁴⁷⁹ ment, which included the claim for breach of contract. Indeed, with her motion, Heneberry appended several exhibits, including Dr. Pharoan’s deposition testimony. 5 Furthermore, neither party controverted any material facts contained in the exhibits filed with the court.

Heneberry, therefore, did not suffer prejudice by the court’s consideration of any materials outside of the four corners of the amended complaint. Accordingly, we treat the circuit court’s grant of Dr. Pharoan’s motion to dismiss as a grant of summary judgment in favor of Dr. Pharoan. 6 We review de novo a trial court’s grant of a motion for summary judgment. See Worsham, supra, 93 Md.App. at 784 . We described our standard of review on appeal in Worsham in the following way: The question of whether a trial court’s grant of summary judgment was proper is a question of law subject to de novo review on appeal.

Livesay v. Baltimore, 384 Md. 1, 9 , 862 A.2d 33 (2004). Summary judgment is appropriate when there is no genuine dispute as to any material fact and the party in whose favor judgment is entered is entitled to judgment as a matter of law. Maryland Rule 2—501(f). On appeal, the appellate court will review the record in the light most favorable to the non-moving party and construe any reasonable inferences that may be drawn from the facts against the moving party.

Myers v. Kayhoe, 391 Md. 188, 203 , 892 A.2d 520 (2006). In reviewing a grant of summary judgment under Maryland Rule 2-501, we independently ⁴⁸⁰ review the record to determine whether the parties properly generated a dispute of material fact and, if not, whether the moving party is entitled to judgment as a matter of law. Wells Fargo Home Mortgage, Inc. v. Neal, 398 Md. 705, 714 , 922 A.2d 538 (2007) (quoting Livesay, 384 Md. 1, 9-10 , 862 A.2d 33 (2004)). Id. at 723-24.

We note that there is no genuine dispute of material fact in this case, as the parties do not dispute any statements made by the parties prior to the surgery, nor the series of events that followed. We construe the facts in the light most favorable to Heneberry as the non-moving party to determine whether Dr. Pharoan was entitled to judgment as a matter of law.

II

Heneberry’s argument on appeal is that Dr. Pharoan is 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, and [there was] no testimony that he intended to leave a portion behind.” In Heneberry’s words, “[Heneberry] contracted with [Dr. Pha-roan] for the removal of all of her appendix, and not just some of her appendix ... Appellant [pled] sufficient facts to entitle! ] her to relief because ‘all’ means all.” Thus, according to Heneberry, the circuit court erred by granting judgment in favor of Dr. Pharoan on the breach of contract claim, rather than granting Heneberry’s motion for partial summary judgment on the same claim. 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. Benson v. Mays, 245 Md. 632, 636 , 227 A.2d 220 (1967).

As we explain below, to establish a prima facie case of breach of contract where the facts relate to a physician’s ⁴⁸¹ 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. See Dingle v. Belin, 358 Md. 354, 372 , 749 A.2d 157 (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.”) (quoting Robins v. Finestone, 308 N.Y. 543, 546 , 127 N.E.2d 330, 332 (1955)); Sard v. Hardy, 281 Md. 432, 451-52 , 379 A.2d 1014 (1977). Heneberry’s amended complaint, adding Count III claiming breach of contract, incorporated no new facts, such as an additional promise or warranty supporting the breach of contract claim.

On the count of negligence, Heneberry alleged that Dr. Pharoan diagnosed her with appendicitis, recommended surgery, and stated that he was “familiar with that procedure and could perform it safely and successfully.” Hene-berry argued that “the procedure, an appendectomy, was not performed properly and in accordance with generally accepted medical and surgical standards.” Finally, Heneberry alleged, “[a]s a sole, direct and proximate result of the negligence of the Defendant in failing to completely remove Plaintiff Hene-berry’s entire appendix, she suffered injuries and damages.” Similarly, on the breach of contract count, Heneberry alleged the following: 10. The Plaintiff contracted with the Defendant for the removal of all of her appendix, and not just some of her appendix. 11. The Defendant breached the contract by removing only a portion of her appendix. 12. The Defendant left an [appendiceal] stump measuring 3.5 centimeters. 13.

Thereafter, the Plaintiff came under Dr. [Rotolo’s] treatment and care. Dr. [Rotolo] performed a second surgical procedure and removed the stump. ⁴⁸² 14. As a direct and proximate result, Plaintiff incurred medical expenses, other treatment and care, injuries and [was] otherwise damaged and wounded. 15. The Defendant breached his contract because he agreed to and was contracted to remove the complete appendix as a part of an appendectomy. 16.

The