Dingle v. Belin

• Decision Date: 11 April 2000
• Docket Number: No. 98,98
• Parties: Lenox DINGLE, M.D. v. Deborah M. BELIN.
• Court: Maryland Court of Appeals

749 A.2d 157

358 Md. 354

Lenox DINGLE, M.D. v. Deborah M. BELIN.

No. 98, Sept. Term, 1999.

Court of Appeals of Maryland.

April 11, 2000.

Catherine W. Steiner (Whiteford, Taylor & Preston, L.L.P., on brief), Baltimore, for petitioner.

Leslie L. Gladstone, Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and THEODORE G. BLOOM (retired, specially assigned), JJ.

WILNER, Judge.

The issue before us was characterized by the Court of Special Appeals in this case as one of "ghost surgery." The more precise question is whether a surgeon who is employed by a patient to perform certain surgery and who agrees, as part of that employment, to do the actual cutting, leaving to assisting residents a subordinate role, may be held liable for breach of contract, distinct from negligence in the performance of the surgery or negligence associated with the failure to obtain informed consent from the patient, if the surgeon attends and participates in the surgery but permits a resident to do that cutting.

The Circuit Court for Baltimore City concluded that the claim for breach of contract made by respondent Deborah Belin was, in effect, subsumed in her alternative claims of negligence and, for that reason, entered judgment as a matter of law on the breach of contract action at the conclusion of the evidence. The Court of Special Appeals reversed that part of the judgment. Belin v. Dingle, 127 Md.App. 68, 732 A.2d 301 (1999). Although we do not consider what allegedly occurred here to be "ghost surgery,"on the facts of this case we agree that a claim for breach of contract was sufficiently pled and proved to warrant submission of that claim to the jury. We shall reverse the judgment of the Court of Special Appeals dealing with that claim, however, because we conclude that the essential underpinning of the claim was, in fact, submitted to the jury, which determined the issue in the doctor's favor.

BACKGROUND

On June 29, 1993, Ms. Belin, employed petitioner, Lenox Dingle, a general surgeon with operating privileges at Mercy Hospital in Baltimore, to perform a laparoscopic cholecystectomy—the removal of her gall bladder through a small incision in her abdomen. In brief, the surgery involves making the incision and inserting at least three ports into the abdomen. Carbon dioxide is introduced into the abdomen to expand the area and make it more visible. A camera, inserted through one of the ports, displays the interior on two high-definition television monitors. Observing the monitor, one physician, through another port, retracts the organs and tissues in order to isolate the gall bladder and the structures that connect it to other organs and tissues, and a second physician, also observing the monitor, cuts and clips those connecting structures and removes the gall bladder through a port.

The surgery occurred at Mercy on July 2. Dr. Dingle was assisted by a medical student and by a resident, Dr. Magnuson, who was just beginning her fourth year of residency training. The student was responsible for operating the camera, which was done properly. Dr. Dingle did the retractions, exposing the field. Dr. Magnuson dissected the gall bladder and removed it. She and Dr. Dingle regarded the surgery as routine, without incident. There was, however, a problem. One of the connecting structures that needed to be dissected was the cystic duct, which runs from the gall bladder to the common bile duct. The common bile duct runs from the liver to the intestines. Instead of dissecting the cystic duct, Dr. Magnuson dissected and clipped the common bile duct, which resulted in the drainage of bile into Ms. Belin's abdomen. That, in turn, led to a great deal of pain and discomfort and to the need for extensive corrective surgery at Johns Hopkins Hospital.

In November, 1996, after having waived arbitration pursuant to Maryland Code, § 3-2A-06(b) of the Courts and Judicial Proceedings Article, respondent filed suit against Dr. Dingle, Dr. Magnuson, and Mercy Hospital in the Circuit Court for Baltimore City. The amended complaint now before us contained four counts— negligence based on the lack of informed consent, battery, negligence in the performance of the surgery, and breach of contract. Aside from the negligence alleged as part of the lack of informed consent, Dr. Dingle was not charged with any separate negligence in delegating duties or responsibilities to Dr. Magnuson. The claim of general negligence focused solely on the actual conduct of the surgery.

The battery count was dismissed by the court at the end of respondent's case and is no longer an issue. The claim for breach of contract by Dr. Dingle was dismissed by the court at the end of the entire case. The correctness of that ruling is the heart of this appeal. The counts for negligence arising from the lack of informed consent and negligence in the performance of the surgery were submitted to the jury, which returned verdicts for the defendants.

The claims for breach of contract and lack of informed consent were both based on the assertion that, when Ms. Belin employed Dr. Dingle, she insisted, and he agreed, that, although he would be assisted in the surgery by one or more residents, he would do the actual cutting and removal of the gall bladder. In Count One—lack of informed consent—she alleged that "[b]ecause Belin was aware that Mercy was a university affiliated hospital and often used for teaching inexperienced residents in various surgical techniques, Belin requested and received assurances from Dingle that he would perform the surgical procedure in the cholecystectomy and only use a resident to assist him as was absolutely necessary." The thrust of Count One was the assertion that, without Belin's knowledge or consent, the resident Magnuson "played a very active role in the surgery" and "did the cutting, clamping and stapling that should have been performed by [Dingle]" and that, by failing to inform Belin of the scope of responsibilities that would be performed by Magnuson, Dingle and Magnuson "breached their duty to secure the fully informed consent of Belin prior to commencing operating upon her." Had she been aware of the active role to be played by Magnuson, Belin asserted, she would not have consented to having the surgery performed at Mercy or by Drs. Dingle and Magnuson. For that breach of duty, Ms. Belin sought compensation for all injuries and losses, past, present, and future, sustained by her, all of which, she claimed, were caused by the defendants' negligence in failing to obtain her informed consent.

Count Four, alleging the breach of contract, incorporated all of the allegations stated in the other counts. It added that Dingle had entered into an oral contract with Belin under which he had agreed "that he would do the identification of the anatomy and the cutting and clipping required during the [surgery] and not a resident or other assistant," and that, in consideration of that agreement, she agreed to allow Dingle to perform the surgery. Dingle breached that contract, she averred, by permitting Dr. Magnuson to perform the cutting and clipping of the gall bladder and related structures. The same measure of damages was asserted—"compensation for all injuries, damages and losses, past, present and future, which she has sustained, is sustaining and will sustain in the future, all of which were caused by the breach of contract."

It was undisputed that Drs. Dingle and Magnuson both participated in the surgery, that Dr. Dingle did the necessary retractions, and that Dr. Magnuson performed the dissections and removed the gall bladder. It was also undisputed that Ms. Belin had no contact whatever with Dr. Magnuson before the surgery, although she was aware that one or more residents would be assisting Dr. Dingle.

The evidence regarding the alleged contract and what Dr. Dingle said and agreed to do was in sharp dispute. Ms. Belin testified that she told Dingle "that I wanted him to be the one that was going to cut me and identify the gall bladder and take it out," that he advised her that he could not do the surgery by himself, and that she said she understood "but if you have a resident in there, I just want that person to maybe suture me up." She added, "I want you to be the one to do my surgery. And he agreed." Ms. Belin informed the jury that, as a surgical technician who worked at Mercy, she was aware that it was a teaching hospital and that surgeons often allowed residents to play a major role in surgery, and she did not want her surgery to be used for training purposes.

The written consent that Ms. Belin signed authorized Dr. Dingle "and/or such assistants as may be selected and supervised by him" to perform the laparoscopic cholecystectomy. The form has a place for "Special remarks or comments by patient," which was left blank. There was no indication on the written consent form, in other words, of any allocation between Dr. Dingle and the assistants selected and supervised by him as to what, precisely, each was to do during the surgery. Dr. Dingle denied that he ever had the conversation testified to by Ms. Belin and stated that he never would have agreed to the conditions she alleged. Although at one point he said that, to satisfy those conditions, the surgery would have to have been performed at another hospital, Dr. Dingle indicated that, if faced with that demand, he would have offered Ms. Belin only two options— "allow me to do what I thought was best unrestricted, or to get another surgeon."

The evidence was essentially undisputed that the particular surgery requires three medical participants—one to operate the camera, one to do the necessary retractions, and one to do the dissection and removal. It would thus not have been possible for Dr. Dingle to do both the retraction and the dissection and removal, as Ms. Belin said he agreed to do. Dr. Dingle and the defense experts opined that the...