Bucalo v. Board of Regents of University of Michigan, 83848

• Decision Date: 03 February 1989
• Docket Number: No. 83848,83848
• Citation: 432 Mich. 859,434 N.W.2d 413
• Parties: Rebecca BUCALO, Plaintiff-Appellant, v. BOARD OF REGENTS OF the UNIVERSITY OF MICHIGAN, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 413

434 N.W.2d 413

432 Mich. 859

Rebecca BUCALO, Plaintiff-Appellant, v. BOARD OF REGENTS OF the UNIVERSITY OF MICHIGAN, Defendant-Appellee.

No. 83848.

Supreme Court of Michigan.

Feb. 3, 1989.

ORDER

On order of the Court, the application for leave to appeal is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

LEVIN and ARCHER, JJ., would grant leave to appeal and state as follows:

In Rocco v. Dep't of Mental Health, decided with Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 647-648, 363 N.W.2d 641 (1984), this Court held that Rocco's separate and legally distinct causes of action for breach of implied contract were not defeated by the governmental tort liability act, and therefore would be remanded for trial. In so ruling, this Court rejected the argument that because Rocco's claim could also be alleged on a tort theory, it could not be alleged on a contract theory. ¹

The Court of Appeals recently acknowledged:

"The same facts that give rise to a cause of action for negligence or malpractice may also give rise to a cause of action for breach of contract. Lawrence v. Ingham Co. Health Dep't, 160 Mich.App. 420, 425, 408 N.W.2d 461 (1987), lv den 429 Mich 864 (1987). In such a case, the doctrine of governmental immunity bars only the negligence claim and does not preclude the breach of contract claim. Id. See also Rocco v. Dep't of Mental Health, 420 Mich. 567, 647-648, 363 N.W.2d 641 (1984)." ²

The circuit judge in the instant case concluded that the statute of frauds requires that all agreements, promises, contracts, and warranties relating to medical care or treatment be in writing, and not only those agreements, promises, contracts, and warranties of cure. The plaintiff filed an application for delayed appeal in the Court of Appeals which was denied.

1974 P.A. 343, added the following subdivision to the statute of frauds:

"(g) An agreement, promise, contract, or warranty of cure relating to medical care or treatment. Nothing in this paragraph shall affect the right to sue for malpractice or negligence." M.C.L. Sec. 566.132(g); M.S.A. Sec. 26.922(g).

The timing and legislative history of the 1974 amendment indicate that it was added to overrule this Court's decision in Guilmet v. Campbell, 385 Mich. 57, 70, 188 N.W.2d 601 (1971), which held that an action could be maintained against a doctor on the basis of "a specific, clear and express [oral] promise to cure or effect a special result...."

This Court should address the question whether the 1974 amendment is applicable to all agreements, promises, contracts, and warranties relating to medical care or treatment, or solely to agreements, promises, contracts, and warranties of cure.

If this Court were to decide that the 1974 amendment is applicable to all agreements, promises, contracts, and warranties relating to medical care or treatment, it should also consider whether the letter from a physician on the staff of the University of Michigan Hospital, Department of Surgery addressed to plaintiff's physician, and the request and consent to operation, radiological procedures, anesthesia, or other procedures signed by plaintiff's mother and witnessed by a physician on the staff of the defendant, satisfied the writing requirement. See Fothergill v. McKay Press, 361 Mich. 666, 676, 106 N.W.2d 215 (1960). Plaintiff does not claim that the defendant agreed to cure, but only that it agreed to provide reasonable and careful medical care or treatment. The writings referred to indicate that the defendant undertook to provide medical care and treatment for the plaintiff and the Court should decide whether the writings suffice although they do not expressly state that the medical care and treatment to be provided shall be reasonable and careful.

In Hyde v. Univ. of Michigan Bd. of Regents, 426 Mich. 223, 393 N.W.2d 847 (1986), where this Court declined to give effect to 1986 PA 175, the governmental tort liability act, before the effective date stated in the amendatory act, the Court felt...