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Heneberry v. Pharoan

Court of Special Appeals of Maryland

April 27, 2017


          Krauser, C.J., Berger, Salmon, James P. (Senior Judge, Specially Assigned), JJ.


          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 Heneberry 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. Pharoan'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.

         For the reasons discussed below, we shall affirm the judgment of the Circuit Court for Baltimore County.


         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 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, Heneberry noted a timely appeal.



         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 . . . .
[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 (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).

         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 (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.

         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 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 do.

         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 ...

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