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Maryland Court of Special Appeals Affirms that Breach of Contract Claims Related to Medical Malpractice Require an Additional Promise or Warranty

Valerie Heneberry v. Bashar Pharoan
No. 2440 (Court of Special Appeals of Maryland)

by Marie Claire Langlois, Law Clerk
Semmes, Bowen & Semmes (

Available at:

Ms. Heneberry brought a claim for medical malpractice and breach of contract against Dr. Pharoan. Dr. Pharoan performed an appendectomy for acute appendicitis in which he failed to remove all of the appendix, leaving 3.5 centimeters of the appendiceal stump. When Ms. Heneberry started feeling significant pain, another doctor decided to remove the remaining stump, which cost Ms. Heneberry additional time and money.

Dr. Pharoan filed a motion to dismiss the breach of contract claim, and after holding a hearing on the issue, where both parties presented oral argument, the court granted the motion to dismiss. Subsequently, the jury found in favor of the doctor on the counts of negligence. This appeal ensued.

On appeal, Ms. Heneberry argued two issues. First, she asserted that the court improperly considered parts of her deposition in deciding on the motion to dismiss. Second, she argued that there was an issue of fact and significant value to the breach of contract claim because Dr. Pharoan agreed to remove all of the appendix, not just some.

The Court looked specifically to Maryland Rule 2-322(c), which states that a trial court may choose to look to matters outside of the pleadings when ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, but that in doing so, the court shall treat the motion as one for summary judgment. Under such circumstances, both parties will be given reasonable notice of the intent to pursue matters outside of the pleadings and be given an opportunity to present any material pertinent under Rule 2-501.

While the Court acknowledged that there exists a risk for unfair prejudice to the non-moving party when proceeding under Rule 2-322(c), the Court believed that not just did both of the parties have sufficient opportunity to present their case, but that the deposition testimony considered was used primarily to show an absence of facts material to the breach of contract claim and not to show additional information outside of the four corners of the complaint. Therefore, the court not only believed it was appropriate for the trial court to consider the testimony, but in their analysis of Ms. Heneberry’s second issue, it was only proper for them to review the ruling on the motion to dismiss, under a summary judgment standard.

Maryland courts have consistently held that to establish a prima facie case for breach of contract where the facts relate to a physician’s performance of a medical procedure, the plaintiff must show existence of an additional promise or warranty separate from the agreement to perform the procedure. See Dingle v. Belin, 358 Md. 354, 372 (2000); Sard v. Hardy, 281 Md. 432, 451-52(1977).

Ms. Heneberry failed to do just that. In her brief, Ms. Heneberry pointed to various out-of-state cases where facts were alleged sufficient to show an additional promise or warranty. Some of those cases included promises to cure, promises to make the patient completely sterile, or promises to achieve a different specific result. Without adopting the rulings in these cases, the Court still believed that the verbal declarations made by Dr. Pharoan did not raise to the level of an additional expressed warranty separate from the promise to perform the procedure.

A physician’s assurances alone on conducting the procedure, or even the hopeful success of the procedure, are not enough to prove the existence of an additional warranty or promise. For this reason, the Court affirmed the trial court in favor of Dr. Pharoan.