2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

learned the day after the surgery that her ovaries had not been removed. Plaintiff did not ask theDefendant physician why the ovaries were not removed during her post operative visits. She didtell a friend about her fear of developing ovarian cancer. Plaintiff, several years later, sawanother gynecologist with complaints of abdominal pain and requested prophylactic removal ofher ovaries. He eventually performed this procedure and her ovaries were found to be normal.Plaintiff sued both the hospital and the physician who performed her first surgery. Heraction against the physician included both negligence and breach of contract claims. Prior totrial, the trial court granted Defendant’s motion for summary judgment on the breach of contractclaim. Trial on the negligence claims resulted in a verdict in favor of the Plaintiff and a largeaward for noneconomic damages. The trial court granted Defendants’ motion for remittitur andreduced the total amount of noneconomic damages. Plaintiff appealed to the Superior Court.Included in the issues raised on appeal was the question of whether the trial court had erred indismissing the breach of contract claim.In regard to this issue, the physician argued in part that section 1303.105 of the MCAREAct, which states that “[i]n the absence of a special contract in writing, a health care provider isneither a warrantor nor a guarantor of a cure,” precluded Plaintiff’s breach of contract claim.The Superior Court, however, found that this section was inapplicable since Plaintiff’s claim wasnot predicated on the guarantee of a cure but rather on the allegation that Defendant physicianhad agreed to perform the prophylactic BSO but failed to do so. The Superior Court also foundthat the evidence of record showed that a question of fact existed as to whether a contract wascreated by the dealings between Plaintiff and Defendant physician, and, therefore, the trial courthad erred in dismissing the breach of contract claim on summary judgment. The Superior Courtremanded for a new trial on this claim.10