Reference no: EM133374424

BREACH OF CONTRACT? SCENARIO (BASED ON A REAL MICHIGAN CASE)

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 commitment.

Did the doctor enter into a legally binding contract to cure the 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?

Argue a legally binding contract was formed and that the plaintiff should prevail?