Burns v. Wannamaker, 0155

Citation315 S.E.2d 179,281 S.C. 352
Decision Date30 January 1984
Docket NumberNo. 0155,0155
CourtCourt of Appeals of South Carolina
PartiesMary Sue BURNS, Respondent, v. Robert L. WANNAMAKER, D.D.S., Appellant. . Heard

John L. Choate, of Nelson, Mullins, Grier & Scarborough, Columbia, for appellant.

Carlos Gibbons, of Kneece, Kneece, Freeman, Willoughby & Ashley, Columbia, for respondent.

Heyward E. McDonald, Mary Lowndes Bryan, Rogers, McDonald, McKenzie, Fuller & Rubin, Columbia, for amicus curiae The South Carolina Dental Ass'n.

GOOLSBY, Judge.

This appeal concerns an express pre-treatment warranty allegedly given by a dentist. We affirm the Circuit Court to the extent that it found that an express pre-treatment warranty to effect a particular result can be extended in South Carolina by a dentist; however, we reverse the Circuit Court's conclusion that the evidence was sufficient to support the magistrate's finding of fact that the appellant Robert L. Wannamaker, a dentist, gave and breached an express warranty as to the manufacture and fit of dentures purchased from him by the respondent Mary Sue Burns and we remand the issue for determination in accordance with Section 18-7-170 of the South Carolina Code of Laws, 1976.

Mrs. Burns brought an action against Dr. Wannamaker in the Magistrate's Court and alleged claims involving, among other things, a breach of contract and a breach of an express pre-treatment warranty. The magistrate found that Dr. Wannamaker breached a contract and an express warranty as to the manufacture and fit of the dentures sold Mrs. Burns. Judgment was entered in her favor in the amount of $550, and Dr. Wannamaker appealed to the Circuit Court.

The Circuit Court held that South Carolina would recognize a cause of action based upon a breach of an express pre-treatment warranty to achieve a specific result given by a dentist. It also concluded that the evidence in the record supported the magistrate's findings of fact as to a breach of an express pre-treatment warranty. In affirming the judgment, the Circuit Court reduced the amount of recovery to the price paid by Mrs. Burns for her dentures and to court costs. Dr. Wannamaker appeals to this court asserting that South Carolina does not recognize a common law action for breach of an express warranty given by a dentist and that, in any event, the evidence does not reasonably support, as the Circuit Court held, the finding of fact by the magistrate that an express pre-treatment warranty was given by Dr. Wannamaker.

I.

Although there are no cases in South Carolina which address the issue of whether a dentist may enlarge his responsibilities and contract to fulfill specific assurances, we know of no reason why he should not be allowed to do so. See Preston v. Thompson, 53 N.C.App. 290, 280 S.E.2d 780, 781 (1981), cert. denied and appeal dismissed, 304 N.C. 392, 285 S.E.2d 833 (1981). A dentist should be as free as any other person who offers to perform skilled services to contract as he sees fit. If a dentist chooses, he should be able to warrant the results of his treatment. Guilmet v. Campbell, 385 Mich. 57, 188 N.W.2d 601, 43 A.L.R.3d 1194 (1971). Indeed, it appears well settled elsewhere that a physician or other healer may bind himself by an express contract to obtain specific results by either treatment or an operation. See 61 Am.Jur.2d Physicians, Surgeons, and Other Healers § 161 at 292-93 (1981).

Some courts hold, however, that liability against a practitioner based upon a breach of an express warranty requires proof of payment by the patient of a consideration separate from the consideration paid for the practitioner's normal undertaking to use due care and skill. See, e.g., Dorney v. Harris, 482 F.Supp. 323, 324 (D.Colo.1980); Coleman v. Garrison, 349 A.2d 8 (Del.1975); Rogala v. Silva, 16 Ill.App.3d 63, 305 N.E.2d 571, 573 (1973); 61 Am.Jur.2d Physicians, Surgeons, and Other Healers § 161 at 293 (1981); Annot., 43 A.L.R.3d 1221 at 1233 (1972). Other courts do not require a separate consideration where the warranty is made prior to treatment and is given to induce the patient to consent to treatment. See, e.g., Scarzella v. Saxon, 436 A.2d 358, 362 (D.C.App.1981); Cirafici v. Goffen, 85 Ill.App.3d 1102, 41 Ill.Dec. 135, 138-39, 407 N.E.2d 633, 636-37 (1980); Depenbrok v. Kaiser Foundation Health Plan, 79 Cal.App.3d 167, 144 Cal.Rptr. 724, 726 (1978); Sard v. Hardy, 281 Md. 432, 379 A.2d 1014, 1026 (1977); 61 Am.Jur.2d Physicians, Surgeons, and Other Healers § 161 at 294 (1981); Annot., supra, n. 12 at 1233. We agree with the latter view.

While we adopt the rule that a patient may recover for breach of an express pre-treatment warranty to effect a particular result despite the absence of a separate consideration, we hold that the patient must prove the existence of the alleged warranty by clear and convincing evidence. Scarzella v. Saxon, supra at 362; Sard v. Hardy, supra, 379 A.2d at 1027; Sullivan v. O'Connor, 363 Mass. 579, 296 N.E.2d 183, 186 (1973). Our reasons for insisting upon a higher degree of proof as to the existence of an express pre-treatment warranty were best explained by the Supreme Judicial Court of Massachusetts in the last cited case as follows:

Considering the uncertainties of medical science and the variations in the physical and psychological conditions of individual patients, doctors can seldom in good faith promise specific results. Therefore it is unlikely that physicians of even average integrity will in fact make such promises. Statements of opinion by the physician with some optimistic coloring are a different thing, and may indeed have therapeutic value. But patients may transform such statements into firm promises in their own minds, especially when they have been disappointed in the event, and testify in that sense to sympathetic juries. If actions for breach of promise can be readily maintained, doctors, so it is said, will be frightened into practising "defensive medicine." On the other hand, if these actions were outlawed, leaving only the possibility of suits for malpractice, there is fear that the public might be exposed to the enticements of charlatans, and confidence in the profession might ultimately be shaken. See Miller, The Contractual Liability of Physicians and Surgeons, 1953 [Wash.U.L.Q.] 413, 416-423. [Footnote omitted.]

296 N.E.2d at 186.

II.

Because the Circuit Court applied the wrong standard of review to the magistrate's judgment, we will not address the question of whether the Circuit Court erred in concluding that there was sufficient evidence in the record to support the...

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