What?! Now They Want to Sue the Doctor for Breach of Contract?

Going after a blameless physician for malpractice is bad enough. But can plaintiffs also try to sue the doctor for breach of contract?  No way; this is not a contract case!  But that doesn’t mean they won’t try.  Consider a recent lawsuit in which we successfully defended a Maryland doctor who faced this scenario.

At no fault of the physician, a laparoscopic appendectomy did not go well and serious complications ensued.  In the Complaint that followed, the surgeon was sued for medical malpractice (Count 1) and breach of contract (Count 2).  The breach of contract claim was premised on an implied promise that the surgeon would perform the surgery correctly.  We tried this case to a jury.  The jury found in favor of the physician and the Court granted judgment on the contract claim.  We thought it was settled law: medical malpractice claims are based in negligence – not contract.  But, plaintiff appealed!

The appellate court confirmed our belief: failure to exercise reasonable care is a tort not generally governed by contract law.  The exception is where the physician makes a specific additional promise or warranty apart from the agreement to perform the procedure properly (e.g. a guarantee that the patient would return to work the next day, or would be “cured” of the disease).

Bottom Line:  Despite plaintiff’s clever attempt to re-package the cause of action against the doctor, the defense verdict was upheld.  Absent a specific additional warranty or promise by the physician, medical malpractice claims will be governed solely by the general rules of negligence/tort law.

If you have any questions about this case, contact John Sly or Anthony Breschi of our office who handled this appeal.  We are always here to help.

Larry Waranch

Larry Waranch

Larry Waranch is an AV rated trial lawyer and a founding partner of Waranch & Brown. His practice focuses primarily on medical malpractice defense, medical licensure matters, administrative defense and general liability.
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