Lawrence v. Ingham County Health Department Family Planning/Pre-Natal Clinic

M. J. Kelly, P.J.

Plaintiffs appeal as of right from an order of summary disposition granted under MCR 2.116(C)(8) in favor of defendant Ingham County Health Department Family Planning/ Pre-Natal Clinic. We affirm.

Plaintiffs filed this three-count complaint following the birth of their daughter, Jessica Lawrence. According to the allegations in the complaint, which are taken as true for purposes of deciding and reviewing a motion under MCR 2.116(C)(8), plaintiff Ethel Lawrence first visited defendant *422 clinic on December 13, 1979, for a pregnancy test. She reported her last menstrual period as October 19, 1979, and tested positive for pregnancy. Plaintiff then continued routine prenatal treatment with the clinic. On August 19, 1980, she appeared at defendant St. Lawrence Hospital in labor, where she underwent an emergency Caesarean section. Jessica Lawrence suffered fetal distress and prenatal asphyxia, which plaintiffs theorized could have been prevented by applying standard procedures for postmature fetuses. Following the delivery, Jessica was resuscitated and transferred to defendant Edward W. Sparrow Hospital. She sustained permanent, serious brain damage.

Plaintiffs’ original complaint alleged various acts of negligence on the part of the individual physicians, the clinic and the two hospitals. Defendant clinic was granted summary disposition as to the negligence claims on the ground of governmental immunity. See Ross v Consumers Power Co (On Rehearing), 420 Mich 567 ; 363 NW2d 641 (1984). Plaintiffs do not appeal from that ruling.

Plaintiffs’ third amended complaint included two counts of breach of contract. 1 ****6In paragraphs 4 and 5 of Count ii of their third amended complaint, plaintiffs allege breach of an enforceable agreement between plaintiffs Ethel and Douglas Lawrence and the clinic and clinic physicians:

4. That thereafter, Defendant Ingham County Health Department Family Planning/Prenatal Clinic agreed to accept Plaintiff Ethel Lutman Lawrence as a patient and Plaintiff Ethel Lutman *423 Lawrence agreed to follow the directions of the •physicians and other medical personnel at the Defendant Clinic for the benefit of her unborn child.

5. That an implied contract in law was created as a result of the Defendant Clinic’s offer to provide medical services to Plaintiff Ethel Lutman Lawrence within the then-existing and applicable standard of care and Plaintiff Ethel Lutman Lawrence’s acceptance of said offer by agreeing to follow the directions of the Defendant Clinic’s physicians and other medical personnel for the benefit of her unborn child.

Plaintiffs allege that Jessica Lawrence is a third-party beneficiary of this contract between her parents and the clinic.

In Count m of the third amended complaint, plaintiffs allege breach of an implied contract between the clinic and the hospital. However, plaintiffs admitted at oral argument on the motion for summary disposition that Count m did not state a claim against defendant clinic and we will therefore not address Count iii on appeal.

The lower court found that plaintiffs failed to state a cause of action for breach of contract and granted summary disposition in favor of defendant clinic. Summary disposition on this ground tests the legal basis of the complaint, not whether it can be factually supported, and is proper only when the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover. Bradford v Michigan, 153 Mich App 756, 761 ; 396 NW2d 522 (1986). The trial court concluded that plaintiffs failed to plead facts that would support a finding of adequate consideration and that plaintiffs’ contract claim must therefore fail.

Plaintiffs argue that the consideration provided *424 by plaintiff Ethel Lawrence was her agreement not to have an abortion and her agreement to follow the directions of the clinic medical staff. Plaintiffs contend that, by entering into these agreements, Ethel Lawrence refrained from doing that which she was legally privileged to do and thereby rendered valuable consideration in return for defendant clinic’s promise to provide adequate prenatal care. Since plaintiffs have not alleged in their complaint that Ethel Lawrence agreed not to have an abortion in return for the promise of medical care, we will not consider this argument further. 2

The contract described by plaintiffs involves an exchange of promises: Ethel Lawrence’s promise to follow directions in exchange for the clinic’s promise to provide appropriate prenatal care. In order for Ethel Lawrence’s promise to rise to the level of consideration sufficient to support a contract implied in fact, however, that promise must be of some value to defendant clinic. We think this means the promise must be enforceable. Although we recognize that mutuality of obligation is not always a necessary element to every contract, we are persauded that, in the context of this case, lack of mutuality of obligation translates into lack of consideration:

Inasmuch as a promise by one person is merely one of the kinds of consideration that will support a promise by another, mutality of obligation is not an essential element in every contract. Therefore, to say the least, language which is susceptible of the interpretation that consideration and mutuality of obligation are two distinct elements lacks precision in that, while consideration is essential, *425 mutuality of obligation is not, unless the want of mutuality would leave one party without a valid or available consideration for his promise. [17 Am Jur 2d, Contracts, § 11, pp 347-348. Emphasis added.]

Plaintiff Ethel Lawrence’s agreement to follow the advice of the clinic’s medical staff regarding prenatal health care is not a legally enforceable promise. Contrary to the position of plaintiffs below, we are not persuaded that defendant clinic has or had a cause of action for breach of contract against plaintiff for failure on her part to follow its medical advice. Plaintiff Ethel Lawrence was given advice on health care conducive to the well-being of her unborn baby. We hold that her acceptance of that advice cannot be deemed consideration for a contract.

We are well aware that facts giving rise to a cause of action for negligence may also give rise to a cause of action for breach of contract. Where this occurs, the doctrine of governmental immunity bars only the negligence claim and does not prevent the party from pursuing the breach of contract claim based on the same facts. See Rocco v Dep’t of Mental Health, 420 Mich 567, 647-648 ; 363 NW2d 641 (1984). As in the instant case, the plaintiff’s claim for breach of contract in Rocco was dismissed on the basis of inadequate pleadings. That order was reversed. In Rocco , however, the plaintiffs expressly alleged that they paid for the care and treatment rendered their decedent. The plaintiffs in Rocco did not plead consideration by way of their agreement to follow the defendant’s medical advice.

We do not evaluate the adequacy of the consideration allegedly rendered in this case since that would be a question for the factfinder rather than *426 for us in determining the adequacy of plaintiff’s pleadings. We simply conclude that plaintiffs’ claim of consideration is so clearly unenforceable as a matter of law that no factual development can possibly justify their right to recover on the theory of defendant’s breach of an implied contract in fact.

Affirmed.

M. R. Knoblock, J., concurred.

Although plaintiffs plead contract implied in law, we interpret their claims as breach of a contract implied in fact. In determining whether there is a contract implied in fact, the courts look to the acts and conduct of the parties to determine whether the essential elements of an express contract have been established. 6A Michigan Law 6 Practice, Contracts, § 3, pp 69-70.

We note, however, that our analysis would be the same on sufficient consideration even if we did address this argument. We are saved from examining the public policy implications of such an anomalous agreement by plaintiffs’ complaint.