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Archive for March, 2011

If a doctor tells you that you are sure to get a good result, or there is absolutely no chance of anything going wrong, that is

what is known as an Express Warranty and creates a contract.  You give him your money, or put up

with the suffering, inconvenience, and time lost due to the treatment, in consideration of his express warranty that he can produce a certain result.

What if the doctor does not actually make any specific promises?  What if he says, “I have given these weight-loss pills to over 500 patients, and no one has ever had a bad reaction.”  What if a plastic surgeon shows you photos of patients he has operated on, and every photo shows an attractive person, so you think, “This doctor never misses.  All his patients look wonderful, so I will, too.”  Are those warranties, even if he did not spell them out in so many words?

Yes.  This type of inducement creates what lawyers call an Implied Warranty and also creates a contract between you and the doctor.  Even though the doctor did not spell it out, his presentation to you was designed to create the impression that nothing could go wrong.  In some states, the courts will recognize an implied warranty as grounds for a lawsuit for breach of contract, but you have to be careful.  As already explained in our blog, giving a good prognosis is recognized and accepted medical practice, to reassure the patient.  The courts in most states will consider an implied warranty as just a prognosis and not a contract.

An unusual case of an implied warranty, giving rise to a successful lawsuit for breach of contract, took place in New York City.  A famous plastic surgeon, who was also a talented artist, used to give his patients sketches showing what they would look like after he operated on them.  When one patient’s nose did not turn out like the nose in the doctor’s sketch, she sued for breach of contract.  The New York court held that the sketch was an implied contract and she won.

The Rule Is: If you claim the doctor gave you a warranty, either express or implied, you have to be prepared to show that it went well beyond what could be considered as a good prognosis and misled you into submitting to treatment you would not otherwise have had.

For instance, a ruptured appendix needs to be attended to immediately.  Either it comes out right away or you could develop anything from an abdominal abscess to a fatal peritonitis.  So, it does not really matter what the doctor tells you before he operates.  On the other hand, you are not going to let a doctor do major surgery on your arthritic knee, or a rhinoplasty (nose job) on your daughter, unless you are reasonably sure  he will produce a good result.  You have time to look for a doctor, who will do the best job.  If the procedure is something unrelated to your health or well being, like a face lift, it may not matter whether you ever have it done.

What if a doctor says, “I’ll admit I promised my patient a good result, and it didn’t turn out that way, but I defy you to show that I did anything wrong.”  Maybe you do not have to.  It is good medical practice and dental practice for doctor

s to give what is called a prognosis, which means an educated

guess.  They will tell patients that everything will be all right, or that they will recover, or predict the outcome of disease.  It is a time-honored tradition to make the patient feel better, and it is not binding on the doctor.

The prognosis is not a guarantee of good results.  The courts have ruled that when a doctor accepts you as a patient, he only undertakes to treat you, not to cure you or produce any specific result.  In fact, the medical profession considered that, since no one can predict the outcome of an illness with any degree of certainty, any such guarantee is unethical.  Most good doctors avoid saying anything that could be taken as a specific promise or guarantee of results and will rarely give you more than a general idea of what to expect.

There is an exception, however, when the doctor persuades you to submit to some treatment on the express promise that he will produce a certain result.  This is especially true when the treatment is something you really did not need and would not have submitted to but for the doctor’s specific promise.  In other words, you may have reason to sue for Breach of Contract if you did something, or submitted to some unnecessary treatment or surgery, just because you relied on the doctor’s promise of good results.  The doctor’s promise does not have to be spelled out or put in writing.  You would have to show that you acted in reliance on the doctor’s explicit promise of a good result.

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