MEDICAL MALPRACTICE STEMMING FROM BREACH OF CONTRACTUAL LIABILITY

One of the lesser known forms of medical negligence can originate from violation of the contractual relationship between patient and provider. In its most basic form, the patient contracts with the provider for consideration (performance of medical care, treatment, services, etc). In exchange, the patient provides consideration of his own, usually financial, to the provider of the services. 

When breach of contract questions arise, the courts do not ordinarily try to make judgments about the value, quality, or degree of consideration.  Courts tend to focus on whether each party had the opportunity to assess the value, quality, or degree of consideration, and whether the required contractual elements were present. This includes contractual capacity, the number of parties to the agreement, a legal purpose for the agreement, and a promise or performance in exchange for same. 

Although there are few guarantees in medical care given the complexity and uniqueness of each patient, there are circumstances in which the patient can reasonably expect a certain outcome or result based on statements made.  While most patients and providers consider their relationship professional and not contractual, the basic contractual elements are still present.  If the conduct of the provider leads the patient to reasonably perceive a specific guaranteed result, the court may allow a breach of contract action to proceed.

For example, Doctor X prescribes a hair loss medication for a patient.  The patient is a man suffering from severe hair loss and Doctor X tells him that the latest studies confirm a near total success rate assuming daily use of a prescribed medication. Based on Doctor X’s representations, the man is certain that in a period of six to eight months, as promised by Doctor X, his hair will be fully restored.  Doctor X believes that the hair loss is due to stress and feels that with the medication and time, his hair will return naturally and that the medication will assist the growth and provide the needed emotional reassurance.  After several months, the man finds himself completely bald and suffering both emotional damage and physical side effects, including loss of employment. Because Doctor X made specific guarantees to the patient and, based on these guarantees, the patient endured the aforementioned problems, it is very possible that a court would allow a breach of contract action to proceed against the physician.