Guilmet v. Campbell

188 N.W.2d 601, 385 Mich. 57, 43 A.L.R. 3d 1194, 1971 Mich. LEXIS 175

• Court: Michigan Supreme Court
• Decided: July 7, 1971
• Docket: 2 April Term 1970, Docket No. 52,412. No. 9, January Term 1971, Docket No. 52,412
• Status: Published

Opinions

T. G. Kavanagh, J.

This appeal presents a very-simple question but it is fraught with great danger to the public weal.

The question is: Was the trial court in error in refusing to grant defendant’s motion for a Judgment notwithstanding the jury’s verdict for the plaintiffs ?

The defendants are skilled surgeons who performed a relatively complicated operation on plaintiff Richard Guilmet, and after such operation the plaintiffs suffered very great damages.

The danger attendant upon decision here is that on one hand if we sanction the award of damages to the plaintiffs we may foster suits which threaten the freedom physicians and surgeons must have in the practice of their vital profession, and on the other hand if we deprive these plaintiffs of their award, we not only may do them an injustice but impair the very process by which we seek to administer justice.

The facts and circumstances giving rise to the suit are as follows:

In the fall of 1963 the plaintiff had suffered near fatal bleeding through a peptic ulcer. At that time he was being treated by Dr. Klewicki and it was Dr. Klewicki who recommended the defendant surgeons. In January of 1964 the plaintiff went to see the surgeon “ * * * curious about an operation, if I should have one or if I shouldn’t have one * * * It was never indicated to the plaintiff that he must have the operation.

Defendant Dr. Campbell testified that prior to the operation the plaintiff was in excellent physical condition and the operation was not an emergency.

At the first consultation with the defendant, Dr. Campbell, the following conversation took place according to the plaintiff’s testimony:

“Q. Now what was the nature of the conversation? Did you state your purpose in being there?

“A. Yes, I asked Dr. Campbell — I was curious about an operation, if I should have one or if I shouldn’t have one, I told him. He knew of my records. I started to tell him about my records. He said, ‘I know all about your records.’ I said, ‘Fine.’ He told me, he said, ‘Once you have an operation, it takes care of all of your troubles/ and he said, ‘You can eat as you want to, you can drink as you want to, you can go as you please.’

“Q. This type of operation we are talking about then is a stomach or an ulcer operation, is that right ?

“A. Yes, it is.

“Q. Did you talk with him at all about his familiarity with this type of operation or the extent of the operation?

“A. Yes, I did.

“Q. What was the conversation as you recall it?

“A. Well, he explained to me how they do this operation, and at that time he told me that him and his associate, Dr. Arena, were specialists, and there was nothing to it at all. It was a very simple operation according to them.

“Q. Did he talk at all about whether he had performed these before?

“A. Yes, he did.

“Q. And what was the conversation along those lines ?

“A. I asked him how often. He said, ‘Very often.’

“Q. Any discussion as to complications or problems that may arise, that may result?

“A. I asked him about it, how long I’d be out of work. He said, ‘Approximately three to four weeks at the most,’ and I asked him about any complications, anything dangerous. He said, ‘No, there is no danger at all in this operation.’

“Q. Was there any discussion as to where it would take place, how long you’d be convalescing in the hospital?

“A. He said ‘Beaumont Hospital.’ I’d probably be in four to five days and then I’d be off work maybe another two to three weeks.

“Q. You say he was familiar with your background. Was he aware that you were taking various medications, Maalox and things of this nature ?

“A. Yes, he was.

“Q. You had been taking these pills for a number of months, had you not?

“A. Yes, I had.

“Q. What was the discussion about the future use of medication f

“A. Well, he said, ‘after this operation, you can throw your pillbox away, your Maalox you can throw away,’ and then he come up with an example.

“Q. Give the example.

“A. The example was that ‘In twenty years if you could figure out what you spent for Maalox pills and doctors calls, you could buy an awful lot. Weigh it against an operation.’

“Q. Was there any conversation with him as to operations he had performed on other individuals who had treated for a while?

“A. Yes. He told me, he never mentioned no names. He just told me of a gentleman that he knows treated for an ulcer thirty years and he went in, had this operation, and he is altogether a different man at this time.

“Q. Now at the time of the conversation were you back to work?

“A. Yes, I was.” (Emphasis added.)

Following this conversation the plaintiff Richard Guilmet underwent the operation.

The record contains a stark description of the troubles that thereafter befell him.

The record description of the vagotomy reveals activity around and on the esophagus. On March 4, 1964 the day following the operation Dr. Wood— a specialist in thoracic surgery on the staff of Beaumont Hospital examined plaintiff and diagnosed : “Ruptured esophagus due to surgical trauma in doing the vagotomy with bilateral effusion and mediastinal emphysema and mediastinitis.” Dr. Wood testified that the symptoms displayed by the patient would cause him concern, that the mortality rate from a ruptured esophagus is 50% to 75%.

After the original operation plaintiff went through three subsequent operations for the insertion of tubes to drain excess fluid from his body; he suffered hepatitis which the defendant Dr. Campbell thought was probably caused by one of the many pints of blood he had been given; due to plaintiff’s constant coughing and vomiting when eating, his weight fell from 170 pounds to 88 pounds and he was unrecognizable; he was unable to sleep due to coughing and only a return to the hospital and insertion of a drainage tube enabled him to sleep; and finally, he is scarred badly from the operations; he is unable to hold down two jobs as he once could; he is physically weak and unable to be athletically or socially active, and Dr. Wood testified that it is not unusual for recurrences of one of his infections as long as 20 years later.

The plaintiffs brought suit for their damages in a two count complaint. One count asserted negligence on the part of the defendants in performing the operation, and the other count charged a breach of contract saying:

“4. That in January of 1964, Plaintiff, Richard A. Guilmet, for good and valuable consideration, entered into an agreement with Defendants to perform an operation known as a gastric resection upon Plaintiff and to administer subsequent post-operative care; that thereupon Defendants in furtherance of their contract jointly undertook to examine, diagnose, treat and operate upon and care for Plaintiff so as to cure him of the stomach disorder from which he was then suffering.”

At the conclusion of proofs, overruling a defense motion for a directed verdict, the trial court sent the case to the jury and stated in his ruling:

“Turning to the matter of contract, it is true that Plaintiff Richard Guilmet, in his testimony, direct testimony, said that he talked with Dr. Campbell and Dr. Campbell said the operation would take care of all his troubles, and he could do as he pleased afterwards; that it was a simple operation, said that he performed it very often and he would be out of work four weeks and there was no danger.

“Now again, this Court would doubt whether those statements were all made, particularly after having listened to the Doctor, and while it is true that the Doctor is not required to guarantee his work, I suppose there is no reason why a medical doctor can’t do that if he wishes, as well as any other person, so there is testimony here from which the Jury might reasonably infer that a contract was made to do these things as Mr. Guilmet testified, and I guess Dr. Campbell would be the first to admit that it was far more than four weeks before this man did go back and there must be a great danger involved as a matter of practical fact, and that apparently the Plaintiff, Mr. Guilmet, has not been able to throw away his pill box since he recovered.

“Well, the record indicates, according to my notes that Plaintiff Richard Guilmet had a conversation with Dr. Campbell prior to the operation, and that Dr. Campbell said that the operation would take care of all troubles and that he could go as he pleased afterwards, and it would be a simple operation ; that he had performed many before and that the Plaintiff would not be out of work more than four weeks, there was no danger, and he’d be in the hospital four to five days, and he could throw the pill box away after the operation, and told of other successful operations. * * * if tfoig conversation and if the Jury accepts it, they would be in position to conclude that this Defendant Doctor had assured the plaintiff of the success of his operation, and having failed in that respect, they would be liable for damages(Emphasis added.)

The jury returned a verdict of “no negligence” on the tort count but awarded the plaintiffs $50,000 on the breach of contract count.

Following this verdict the defendants moved for judgment notwithstanding the verdict, and the trial court denied it.

This decision was affirmed by the Court of Appeals and we granted leave in light of our conviction that it raised questions of the indicated significance to the jurisprudence of this state.

The defendants argue on appeal that “to establish a special contract to effect a cure plaintiff must prove a clear and enforceable promise, within the contemplation of the parties, supported by a special consideration, followed by reliance.” (Emphasis added.)

The distracting aspect of casting the question thus is that the plaintiffs never asserted a “special contract”.¹ They claim, on the contrary, that the observations and descriptions of the result which the defendant made were promises to achieve that specific end, and were inducements upon which plantiff, Richard Gruilmet, relied in proceeding with the operation. They characterize it as an undertaking to “cure” him of the stomach disorder from which he was then suffering.

This appellation of “cure” may be unfortunate.

The parties when contracting never used the word “cure” and the mere elimination of a troublesome condition may not always be properly so designated. For example, a headache may be eliminated by decapitation but no one seriously suggests that it is a “cure.” Similarity the substitution of a different stomach disorder for a specific one is not property called a “cure” of the original ailment.

The gravamen of the plaintiffs’ breach of contract complaint is that: 1) The following is the gist of what the defendants told him:

“Once you have an operation it takes care of all your troubles. You can eat as you want to, you can drink as you want to, you can go as you please. Dr. Arena and I are specialists, there is nothing to it at all — it’s a very simple operation. You’ll be out of work three to four weeks at the most. There is no danger at all in this operation. After the operation you can throw away your pill box. In twenty years if you figure out what you spent for Maalox pills and doctor calls, you could buy an awful lot. Weigh it against an operation.”

2) That this amounted to an offer of a contract to achieve by the operation the condition described.

3) That in reliance on the description, the plaintiff accepted the offer, and in breach of the contract the condition described did not result.

In effect by their motion for judgment N.O.V., the defendants ask the court to rule as a matter of law that such statements by defendant before the parties had contracted for the operation as to the danger, convalescence, and result can not be regarded as a term of a contract between a physician and his patient.

This we will not do for we agree with Mr. Justice Cooley when he said:

“ * * * where the terms of a negotiation are left to oral proofs, the question what the parties said and did, and what they intended should be understood thereby, is single and cannot be separated so as to refer one part to the jury and another part to the judge; but in its entirety the question is one of fact. Strong v. Saunders [1867], 15 Mich 339; Maas v. White [1877], 37 Mich 126; Estate of Young [1878], 39 Mich 429; Engle v. Campbell [1880], 42 Mich 565.”

McKenzie v. Sykes (1882), 47 Mich 294, 295, 296.²

We hold that the terms of a contract, when contested, are for the jury’s determination. This is true even when the evidence of the terms is uncontradicted. See Boyer v. Joyal (1911), 164 Mich 662.

We recognize that what we hold is sometimes made clearer by stating what we do not hold. Here we do not say that everytime a doctor says to his patient prior to the formation of their contract for example, “I recommend an immediate appendectomy. It will fix you up fine. You will be back at work in no time. Do not worry about it — I have done hundreds of these operations. It is really a very simple thing.” It may be said that he contracted to “cure” his patient.

What we are saying is that under some circumstances the trier of fact might conclude that a doctor so speaking did contract to “cure” his patient.

What was said, and the circumstances under which it was said always determines whether there was a contract at all and if so what it was. These matters are always for the determination of the fact finder. (Strong v. Saunders, supra.)

Justice Talbot Smith in Stewart v. Rudner (1957), 349 Mich 459, 467, 468 articulated our concern for the sensitivity of this area of engagement, when he said:

“A doctor and his patient, of course, have the same general liberty to contract with respect to their relationship as other parties entering into consensual relationship with one another, and a breach thereof will give rise to a cause of action. It is proper to note, with respect to the contracts of physicians, that certain qualitative differences should be observed, since the doctor’s therapeutic reassurance that his patient will be all right, not to worry, must not be converted into a binding promise by the disappointed or quarrelsome.”

This sound counsel, however, should not he read to import a different standard to this relationship than to any other. It merely stresses the importance of circumstances in determining the effect of words in establishing a contract. The qualitative difference between the relationship of a physician and his patient and the relationship between a shopkeeper and his customer is a significant circumstance the fact finder must remember in assaying their respective words of undertaking.

In this case the trial judge instructed the jury in part:

“Now, on the other hand, the two doctors take the position first of all, that they did not enter into a contract to effect a cure or a result, but that they only agreed to perform with such degree of care and knowledge and attention as is ordinarily possessed by practitioners of their profession under like circumstances. In other words, they say that they did not assure to the plaintiffs any cure or specific result, * * * (Emphasis added.)

As in all contract cases for personal services, in order to find for the plaintiffs here the jury must have found from the evidence that the doctors made a specific, clear and express promise to cure or effect a specific result which was in the reasonable contemplation of both themselves and the plaintiff which was relied upon by the plaintiff.

The plaintiffs say they did, the defendants say they did not.

We conclude that under the circumstances disclosed by this record the trial court was correct in sending this case to the jury to determine the offer, acceptance, breach and damages, and refusing to grant judgment notwithstanding their verdict.

As did the Court of Appeals, we affirm.

Plaintiffs may tax costs.

T. M. Kavanagh, C. J., and Adams, Swainson, and Williams, JJ., concurred with T. G. Kavanagh, J.

1 In this state, a doctor is free to contract as he sees fit. He may or may not warrant the results of his treatment. He may do so as a term of the contract or as a separate contract subsequent to the original contract. (Stewart v. Rudner [1957], 349 Mich 459.) But in this case the warranties were prior in time to the acceptance and thus did not, as there, present a question of “past” consideration. Inapposite is Gault v. Sideman (1963), 42 Ill App 2d 96 (191 NE2d 436) wherein the Illinois court held the complaint did not sound in contract and observed “Attention has been called by (sic) courts to the fact that a promise to cure is not made by a competent and honorable physician and that such a physician knows that he cannot warrant a cure.” In addition to the obvious distinction between the cases, the quoted observation (whatever its validity) sheds little light on the question here involved as to whether or not such a promise was made.

It is well settled that a physician or surgeon may bind himself by express contract to perform a cure or obtain specific results by treatment or an operation. 41 Am Jur, Physicians and Surgeons, § 105, p 220.

2 See also Beebe v. Koshnic (1885), 55 Mich 604, 606, wherein Mr. Justice Cooley stated: “The question what oral contract parties have made is not for the court, but for a jury * * * .”