When surgery leads to a bad result, the plaintiff almost always files suit for medical malpractice. I say “almost always” because a recent Massachusetts case has reminded me that occasionally a plaintiff can sue a surgeon for breach of contract, and that in such a case expert testimony is not only not required, but if offered would not be admissible. Based on the court’s opinion and the cases it cites, it appears to me that the occasion for a breach of contract action against a surgeon will arise almost exclusively in the context of elective cosmetic surgery.
The plaintiff in Early v. Slavin (No. 21-P-600, Mass. App. Ct., 6/10/22), https://www.mass.gov/files/documents/2022/06/10/v21P0600.pdf, suffered from gynecomastia, a condition of overdevelopment or enlargement of the breast tissue in men or boys. The defendant, a plastic surgeon, recommended excision of the excess breast tissue and liposuction to remove excess fat.
From a previous experience, the plaintiff knew that liposuction can result in sagging skin, and so he made clear to the defendant that he did not want to proceed with the surgery unless it included “a skin excision component.” The defendant promised in return that he would remove the excess skin as part of the surgery. The defendant discussed the skin excision procedure with the plaintiff “in some detail”…. Upon awaking from anesthesia, the plaintiff discovered that the defendant had not removed the excess skin…because the defendant had determined that the skin would retract and flatten on its own. Months later, however, the skin still had not tightened, and it became clear that the condition was not temporary….
The plaintiff filed suit for breach of contract, alleging that that the parties had “entered into a contractual agreement pursuant to which [the defendant] agreed to perform a chest skin excision as part of [the] gynecomastia procedure”; that the plaintiff had performed his contractual obligation by paying for the surgery; that the defendant had “breached the contract by failing to perform the chest skin excision as part of the gynecomastia procedure”; and that the plaintiff “was harmed by this breach.”
The trial court granted the defendant’s motion for summary judgment, reasoning that the plaintiff’s case was essentially a medical malpractice claim and could not survive summary judgment without expert evidence. The Massachusetts Appeals Court reversed:
[W]e conclude that his claim asserts breach of contract, not malpractice or negligence, and that it should not have been dismissed on summary judgment. The crux of the claim is that the defendant made a specific promise to perform the chest skin excision and did not keep that promise, causing harm to the plaintiff. No expert testimony is needed to prove these allegations, which do not depend on any finding that the defendant was negligent or deviated from a standard of care. See Rosato v. Mascardo, 82 Conn. App. 396, 411 (2004) (claim that plaintiff “bargained for a breast lift and instead received a breast lift and silicone implants” sounded in contract as it “specified alleged acts of the defendant that would constitute a deviation from the alleged agreement”); Heffner v. Reynolds, 149 Ohio App. 3d 339, 343 (2002) (claim based on promise that plaintiffs “would be satisfied with the results of the liposuction surgeries” was not one for malpractice because it was “not dependent on a finding that [the doctor] committed some form of professional misconduct”….[If] a doctor chooses to guarantee that a patient will be satisfied with the results of elective cosmetic surgery, the patient has the right to sue the doctor for breach of contract if he or she is not satisfied”)….
[T]he plaintiff claims that the defendant’s failure to perform the chest skin excision was a breach of a specific promise, not that it was an error of medical judgment. This is not a disguised malpractice claim, as the defendant argues. Although the defendant may have exercised medical judgment in determining that the skin would tighten on its own, the plaintiff does not allege that that determination was a departure from the standard of care, nor does success on his claim depend on proof that it was. The claim is in substance that the plaintiff did not receive the cosmetic procedure for which he bargained and paid. This sounds in contract, and whether the parties made such a bargain is within the capacity of a lay jury to decide. See Salem Orthopedic Surgeons, Inc. v. Quinn, 377 Mass. 514, 521 (1979) (“question whether the parties made the agreement as alleged in the counterclaim is beyond the competence of a [medical malpractice] tribunal”); Koltin v. Beth Israel Deaconess Med. Ctr., 62 Mass. App. Ct. 920, 920 (2004) (tribunal should not have decided breach of contract claim where “[t]here was no suggestion that [claim] was based on neglectful care or medical misjudgment”).
Finally, the court mentioned that the complaint had included a count for “breach of contract to produce a specific medical result” – which is not the same thing as a contract to perform a specific surgical procedure – and that the plaintiff had not appealed the summary judgment dismissing that count. “We note also that claims alleging breach of contract to produce a specific medical result must be referred to the tribunal to evaluate whether the medical result obtained is consistent with the medical result allegedly promised by the health care provider. This rule is based partly on the rationale that, because it is unlikely that physicians of even average integrity will in fact promise specific results, the great bulk of cases so alleging will actually turn on the ordinary question of negligent treatment.” (Citations and internal quotation marks omitted.) That tart remark about “physicians of even average integrity” makes me wonder what the Ohio plastic surgeon in Heffner v. Reynolds, cited above, could possibly have been thinking when he or she promised patients (clearly there was more than one) that they “would be satisfied with the results of the liposuction surgeries.”
The two Massachusetts case cited by the court – Salem Orthopedic Surgeons v. Quinn and Koltin v. Beth Israel Deaconess Med. Ctr. – were not cosmetic surgery cases. The first involved breach of an alleged promise that orthopedic surgery would completely straighten the patient’s leg (a promise that I doubt was made, and that issue was not before the court). The second involved breach of an alleged promise to continue care. And even there, the court held that “[w]hether a medical provider has a duty to continue care once undertaken is a question of law appropriate for a court, not a malpractice tribunal.” In other words, the court apparently concluded that the claim sounded in tort, not contract, but the nature and scope of a duty to continue care was a question of law and therefore outside the competence of the tribunal.
Thus, as I stated out the outset, I think it will be very unusual to see a medical breach of contract claim outside the context of elective cosmetic surgery. That said, enough such surgeries go south that plaintiff attorneys should be aware of this possibility. And surely the overwhelming majority of cosmetic surgeons are ethical and competent, and they don’t make promises that could expose them to liability for breach of contract.
