Krauser, C.J., Berger, Salmon, James P. (Senior Judge,
Specially Assigned), JJ.
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"),  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
Heneberry was permitted -- as a matter of law -- to bring a
claim against Dr. Pharoan for breach of contract.
Circuit Court for Baltimore County granted Dr. Pharoan's
motion to dismiss Count III (alleging breach of contract) of
Heneberry's amended complaint. Heneberry timely noted an
appeal to this Court.
appeal, Appellant presents one issue for our review,
 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.
reasons discussed below, we shall affirm the judgment of the
Circuit Court for Baltimore County.
AND PROCEDURAL BACKGROUND
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.
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.
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.
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 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.
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,
Heneberry noted a timely appeal.
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
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.
specifically, the circuit court considered a consent form
executed by Heneberry prior to surgery, as well as
Heneberry's deposition testimony,  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 . . . .
[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
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].
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
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).
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 (2012) (quoting Okwa v. Harper, 360 Md.
161, 177 (2000)); see also Smith v. Danielczyk, 400
Md. 98, 105 (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 consideration);
accord Anne Arundel Cnty. v. Bell, 442 Md.
539, 552 (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 (treating the
motion as one for summary judgment where the court relied on
facts stated at a motions hearing and in the plaintiff's
affidavit, but not in the complaint); Green v. H & R
Block, Inc., 355 Md. 488, 501 (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).
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 (2015). In Advance
Telecom, where the material not excluded from
consideration (a "Teaming Agreement") was the
document upon which the plaintiff's 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.
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 Heneberry and Dr. Pharoan.
Heneberry's counsel stated the following:
[T]here'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
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 ...