Breach of contract claim arising in the context of medical treatment; Failure to perform a “special agreement”; Stewart v Rudner; Penner v Seaway Hosp; Statute of frauds (MCL 566.132); Powers v Peoples Cmty Hosp Auth

Holding that plaintiffs’ allegations sounded “exclusively in medical malpractice rather than in contract[,]” and that the statute of frauds mandated a written contract, the court concluded the trial court did not err in granting defendants summary disposition on the contract claims. The complaint also asserted medical malpractice claims, but they were not at issue on appeal. The court noted that in “the context of medical treatment, a cause of action for breach of contract is ‘entirely separate’ from an action for malpractice even though both claims may arise out of the same transaction.” As explained in Stewart, the “action in contract is based upon a failure to perform a special agreement.” In Penner, the court explained “that the ‘special agreement’ that gives rise to a contract claim under Stewart in the context of providing medical treatment requires a ‘contract to perform a specific act,’ such as the express agreement that the physician in Stewart made to perform a Caesarean section.” And the court held in Powers that MCL 566.132 “requires a writing for any agreement, promise or contract relating to medical care or treatment as well as any warranty of cure.” The complaint here showed that the gravamen of plaintiffs’ claim was “that defendants breached an alleged contract to provide [plaintiff-]Cooper with an accurate diagnosis and appropriate medical treatment.” This alleged medical malpractice rather than breach of contract. And as to the statute of frauds, they conceded “the absence of a written agreement; consequently, any purported oral contract is void. The consent form executed in this case does not constitute a contract for these purposes, nor can an implied contract arise under these circumstances.” Affirmed.