Discussion 03.2: breach of contract? | HA4050D-Healthcare Law | National American University

 Discussion 03.2: Breach of Contract?

  Read to the Discussion 03.2 Scenario. We will debate the question: 



A patient went to his doctor complaining of stomach pains. The doctor diagnosed the patient with a

bleeding ulcer, recommending surgery. Before the patient agreed to the surgery, the doctor told the

patient, “Don’t worry, Bob, after this you’ll be good as new.” The surgery was unsuccessful.

Although most medical malpractice suits are based on negligence, this plaintiff made a claim for breach

of contract. At trial, the patient argued that the doctor promised to cure him, and did not, so the

contract was breached. The doctor responded that he had only promised to treat the patient, not cure

him, and that there is always a chance that medical interventions will not succeed. He was just trying to

make the patient feel better about this procedure which had the best chance of helping him.

Oral contracts can be perfectly legal and binding. However, remember that any contract (oral or

written) must have both mutual assent and an exchange of consideration. The parties must agree to the

terms and have an exchange of promises or some other consideration to create a legally-binding


(Note: If you would like to see the real case this scenario is based upon, check out Guilmet v. Campbell,

188 N.W.2d 601 (Mich. 1971). Be warned—the scenario has altered the facts from the original case. Do

not rely upon the real case opinion in formulating your answer to the fictional scenario in the discussion



(Answer on the discussion board.)

We will debate the question:

 Did the doctor enter into a legally binding contract to cure this patient (that is, were the

contract formation elements of mutual assent and exchange of consideration met)? There is a

big difference between a legally binding contract and a “mere promise.” Which happened in

this case?

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