*1 HEALTH DEPARTMENT LAWRENCE v INGHAM COUNTY CLINIC FAMILY PLANNING/PRENATAL 22, 1987, Lansing. January Decided 91098. Submitted Docket No. 19, 1987. appeal applied May Leave to for. Department Ingham County Health went to the Ethel Lawrence pregnancy Planning/Pre-Natal Family test. The Clinic for a pregnant. She continued showed that Lawrence was test results clinic, prenatal and then went treatment with routine began having pains Hospital and labor when she St. Lawrence baby emergency suffered Caesarean section. underwent an resulting permanent, prenatal asphyxia, and fetal distress damage. to Edward W. The child was transferred serious brain Lawrence, individually Sparrow Hospital. and as next child, Lawrence, Douglas J. Lawrence and friend of Jessica County Department against Ingham Fam- filed suit Clinic, Hospital, ily Planning/Pre-Natal Edward St. Lawrence Ingham Sparrow Hospital, Circuit and various doctors W. alleging an the clinic breached inter alia Court plaintiffs Lawrence if Ethel itself and contract between advice, provide her and the it would the clinic’s followed court, prenatal Caro- appropriate care. The unborn child with Stell, J., cause of lyn failed to state a found that summary disposition granted for breach of contract action clinic. The court concluded in favor of defendant finding adequate support plead facts that would failed to fail. must therefore and that consideration appealed. Plaintiffs Appeals held: The Court acceptance condu- on health care of advice Ethel Lawrence’s baby deemed well-being cannot be of her unborn to the cive of consideration Plaintiffs’ claim for a contract. consideration that no factual clearly a matter of law so on the possibly justify to recover development can implied contract in fact. theory of an defendant’s breach Aifirmed. person may J., hold that Sawyer, He would dissented. References 86, 92, 11,12, 85, 2d, 95-97. Contracts §§ Am Jur Co Health Opinion op the Court contractually obligate himself to follow the directions of a forego physician, legally privileged action he is that, perform, given where such an in ex- change perform services, for the another to obligation serves as consideration and contract is established. *2 claim, would He find that stated a have however may tenuous it be. He would reverse. op Mutuality — — Obligation 1. Contracts Consideration. Mutuality is an essential element of a contract mutuality party want of where would one leave without a valid promise. or viable consideration for his Implied — — — 2. Contracts Contracts Consideration Health. implied promise prenatal An to follow the advice of a clinic’s regarding prenatal staff legally medical health care is not a promise; therefore, acceptance enforceable the of such advice cannot be deemed consideration for an if appropriate prenatal advice is the followed care will be ren- dered. Dimanin, Konkel & Konkel), P.C. G. (by John for plaintiffs.

Smith, Roegge Rice & Haughey, Susan J. (by for Bradley), defendant. Sawyer Kelly, P.J., M.

Before: and M. R. Knoblock,* JJ. Kelly,

M. J. P.J. Plaintiffs appeal as of from an order of disposition summary granted 2.116(C)(8) MCR under Ing- favor defendant ham County Department Planning/ Family Pre-Natal Clinic. affirm. We

Plaintiffs filed this complaint three-count follow- birth ing the of their daughter, Jessica Lawrence. According to allegations complaint, in the which are taken true for purposes deciding reviewing 2.116(C)(8), a motion MCR under plaintiff Ethel Lawrence first visited defendant

* judge, sitting Appeals by assignment. Circuit on Court of op Opinion the Court pregnancy 13, 1979, test. for a clinic on December period reported as October menstrual last She pregnancy. positive Plain- 19, 1979, for and tested prenatal treatment routine tiff then continued appeared August 1980, she On the clinic. with Hospital labor, St. Lawrence defendant emergency Caesarean underwent an where she fetal distress Lawrence suffered section. Jessica prenatal asphyxia, theorized which and could have been by applying prevented standard Following postmature procedures fetuses. delivery, and transferred Jessica resuscitated was Sparrow Hospital. She Edward W. to defendant damage. permanent, serious brain sustained alleged original complaint various acts Plaintiffs’ physi- part negligence of the individual on the of cians, hospitals. Defendant clinic and two granted disposition summary as to the clinic ground governmental negligence *3 of claims on (On immunity. Co v Consumers Power See Ross (1984). Rehearing), 641 567; 363 NW2d ruling. appeal do not from that Plaintiffs complaint included two Plaintiffs’ third amended paragraphs 4 and of contract.1 ****6In counts of breach complaint, of ii of their third amended Count agree- allege plaintiffs breach of an enforceable Douglas plaintiffs Law- and ment between rence and the clinic physicians: and clinic thereafter, Ingham County 4. That Defendant Planning/Prenatal Family Department agreed accept Plaintiff Ethel Lutman Lutman Clinic patient and Plaintiff Ethel as a Lawrence law, interpret plaintiffs plead implied Although we contract determining implied in In a contract fact. claims as of their whether and conduct ments of an breach fact, implied look the acts the courts there a contract parties the essential ele of to determine whether Michigan express 6A Law have been established. contract Contracts, Practice, 3, pp 69-70. § Lawrence Co Health Opinion of Court agreed

Lawrence to follow the directions of the (cid:127)physicians personnel and other medical Defendant Clinic for the benefit her unborn child.

5. implied That an contract in law was created aas result of the pro- Defendant Clinic’s offer to vide medical services Plaintiff Ethel Lutman then-existing applicable within the standard of care and Plaintiff Ethel Lutman Law- acceptance rence’s of said offer agreeing to follow the directions of the Defendant Clinic’s physicians personnel and other medical for the benefit of 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, allege breach between the clinic However, and the hospital. plaintiffs admitted at argument oral on the motion for summary disposition that Count m did against state a claim defendant clinic and we will therefore not address iii Count on appeal.

The lower court that found failed to state a cause of action for breach of contract and granted summary disposition in favor defendant clinic. Summary disposition ground on this tests legal basis the complaint, not can whether supported, be factually is proper only when the claim is clearly so as a matter of law that no factual development can possibly to recover. Bradford v justify Michigan, 761; Mich 396 NW2d 522 *4 court trial concluded that failed plead to facts finding would support of adequate consideration and that plaintiffs’ fail. must therefore

Plaintiffs argue that provided consideration Opinion the Court of agreement by plaintiff not Lawrence was her to follow and her an abortion have staff. Plaintiffs of the clinic medical the directions entering agreements, by that, these into contend doing which from refrained Ethel Lawrence thereby legally privileged ren- to do and she was in return for defen- valuable consideration dered dant clinic’s adequate prenatal promise alleged in not have care. Since complaint agreed to have that Ethel Lawrence not promise of medical in return for the an abortion argument further.2 care, not consider this we will by plaintiffs an involves The contract described exchange promises: promise to Ethel Lawrence’s of exchange prom- in for the clinic’s follow directions ise to for Ethel provide appropriate prenatal In order care. promise to to the level of rise

Lawrence’s support a contract im- sufficient consideration promise plied fact, however, must of in think this to defendant clinic. We some value Although promise must be enforceable. means obligation recognize mutuality is of we necessary every always contract, we element persauded case, that, context of this are obligation mutuality into lack of translates lack of consideration: person merely one is Inasmuch as a support will of consideration that one of the kinds another, obligation is not promise by mutality Therefore, every contract. an essential element least, language susceptible say the which to the interpretation that consideration and mutual- elements lacks

ity of are two distinct essential, that, while precision consideration however, note, analysis be the same on that our would We argument. even if we did address this We sufficient consideration policy implications examining public such saved from complaint. by plaintiffs’ anomalous *5 Dep’t v Co Health op Opinion the Court not,

mutuality of unless the want of mutuality party would leave one without a valid promise. or available consideration for his Am [17 2d, Contracts, 11, Emphasis Jur pp 347-348. § added.]

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

areWe well aware facts rise to giving of negligence cause action for may give also rise to a cause of for action breach of contract. Where occurs, this the doctrine governmental immu- nity negligence bars only the claim and does not prevent from party pursuing breach based on the same facts. See Rocco Health, Mental 420 Mich 647-648; case, NW2d As in the instant plaintiff’s claim for breach of contract in Rocco was dismissed on the inadequate plead- basis of ings. Rocco, That order In however, was reversed. the plaintiffs expressly alleged paid for they the care and treatment rendered their decedent. plead in Rocco did not consideration of their by way to follow the defen- dant’s medical advice.

We do not evaluate the adequacy of the consid- eration rendered in this allegedly case since that question would be a for the factfinder rather than by Sawyer, plaintiff’s adequacy determining us in conclude simply We pleadings. clearly is so consideration

claim of development no factual law that a matter of on to recover justify possibly can con- of an breach of defendant’s theory *6 tract in fact.

Affirmed. Knoblock, J., concurred.

M. R. (dissenting). I

Sawyer, dissent. J. Ethel promise to clinic made a Defendant health clinic and the that if she would come Lawrence directions, it to follow its staff’s thereafter promise her unborn child with her and would promises, these prenatal Despite care. appropriate for purposes admit as true must which defendants motion, majority the disposition summary the of to follow the clin- promise that Ethel’s concludes and, to the clinic had no value ic’s directions therefore, promise.” enforceable legally "is not a the the of the courts scrutinize

It is not office Randolph v of consideration. Harwood adequacy Inc, Harwood, 142; 333 App NW2d 124 Mich (1983). fact, the concedes majority In even the of adequacy that "the paragraph its final for the question . . a factfinder consideration . [is] then, that How, majority say can the now ...” lacking in value? As I will Ethel’s below, my to sign fully more am unable explain states on the one hand opinion name to an which about worry it let factfinder will and, then, other on the of consideration adequacy consid- Lawrence’s plaintiff holds that hand of a matter clearly so eration "is law.” for opinion join majority’s

I am unable Co simple ignores one reason: effectively fact this comes Court matter before this by way of appeal grant summary disposition from claim, 2.116(C)(8), failure to state MCR rather than from a verdict jury favor defendants or even grant disposition from the of summary under (no 2.116(C)(10) MCR genuine issue of material fact). skeptical While I am will be trial, prevail able to unwilling am to deny them their in court. day 2.116(C)(8) disposition MCR

Summary under tests the legal complaint, basis not whether it can factually supported, and is proper only when the is so clearly unenforceable as a matter no development law factual can to recover. Bradford v possibly justify Michigan, 756, 761; NW2d 522 n

Regarding complaint, Count of the allege that there was an implied contract which defendant clinic breached.1 trial court *7 allege implied contract, While that there was an in law my plaintiffs’ allegations any review of me to leads believe that contract, express part contract was an with or all of the terms implied complaint alleges in fact. Plaintiffs’ third amended plain defendant health clinic offered to medical services and accepted agreeing by tiff Ethel Lawrence the "offer to follow the physicians.” implied directions of A the Defendant Clinic’s contract in law obligation imposed by all is not a contract at but an law to do

justice though even it is clear that was no ever made illustrate, physician gives necessary or intended. To medical care in the recover from the if a a child parental neglect, physician may face contract, parents, quasi the value of his principal gener- quasi services. . . . The function contract is ally prevention unjust said to be that enrichment. [Cala- (2d 12, (Footnotes Perillo, ed), pp mari and Contracts 19-20 § 1— omitted.)] concept implied in The of an fact contract differs: parties agreement by When the manifest words the 160 Mich as there be no contract there could concluded behalf: on was no consideration light most complaint Looking were if Plaintiff even the Plaintiff favorable to gotten had not proofs she to sustain able the directives [of and she had followed an abortion she physicians] when Department’s the Health so, the does by to do Court obligated law imagina- any of the under stretch not believe that adequate any or be considered as tion could that think to take that as I of consideration. form consideration of the expand the definition would recognition. all beyond contract view, which with to follow this majority The seems disagree. was discussed of consideration concept The (2d ed), Perillo, pp Contracts Calamari and § 4— 133-134: is an histori- of consideration Since the doctrine its therefore in some of as- phenomenon and cal circumstances, an en- pects by fortuitous affected impossible. None- perhaps is compassing definition

theless, attempt made. A learned an should be express. When it is manifested conduct is said to be contract telephones plumber implied If it in fact. is said pipe, may fix be inferred that a broken come to house a’s agreed pay plumber fee for his a reasonable has nothing partly although is is said of this. contract services express wholly partly implied are cases of contracts in fact. There implied this kind of in fact. The distinction between unimportant: expressed is in words a contract contract by a mutual manifestation of contracts formed both true [Id., at assent. 19.] agreement, plaintiffs allege there was mutual Inasmuch as express, implied, rather than contract. How- this as an would view ever, unnecessary express this is viewed as whether Rather, question this to the resolution of case. *8 consideration, allege plaintiffs which is a the existence of whether Lowery Dep’t requirement Corrections, express v for both contracts. (1985). 342, 359; 380 99 146 Mich NW2d 429 Co by Sawyer, C.J., College [Cardozo, Allegheny v Nat’l judge Bank, 369; Chautauqua (1927)] NY NE Co the three elements which has identified promise supported by before a must concur consideration. (a) detriment; legal must promisee The suffer is, legally he is not promise to do what

that do do; doing or to obligated to or refrain from doing legally privileged to from what he is refrain do. (b) promise. In induce the The detriment must the promisor must have made other words exchange it at least

promise in promisee. he wished to because by the to be suffered part for the detriment (c) detriment. This promise must induce the seen, effect, already as we have means intend to of the offer and promisee must know accept. omitted.] [Footnotes argue case, the considera- In this agreement given by her Ethel Lawrence was tion agreement to to have an abortion and not attending physicians.2 follow the directions of they agreements, were if fact Either of these made, a form of consideration. would constitute agreement constitutes not to have an abortion Her doing agreement she from that which an to refrain privileged legally to do.3 Her physicians an constitutes follow the advice of legally was not do that which she that, complaint majority, plaintiffs pointed recognize did as out 2 I agreed refrain from allege undergoing Ethel Lawrence in their However, plaintiffs part agreement. as of her an abortion easily argue could have added trial court. Since did so such since amendments in the amendment, way complaint by allegation to their given, freely complaints MCR should Co, 649; 2.118(A)(2), 213 NW2d P & Sons v Gunter Fyke Ben part argument (1973), properly we can consider believe However, I would reach the same plaintiffs’ claim of consideration. of result from the arising only plaintiffs’ claim of consideration if considered advice, physicians’ agreement to follow the 705; Wade, 113; L 2d 147 93 S Ct 35 Ed 410 US See Roe v *9 160 Mich by Sawyer, J. Dissent develop- Assuming to do. that a factual obligated agree- ment is made to show that Ms. Lawrence’s health clin- ments were made to induce defendant and, provide conversely, ic’s to services Ms. Law- required that defendant health clinic in order to re- agreements rence to make those services, ceive the health then a contract would parties. exist between the reasoning

The flaw in the is evident majority’s following from the statement: Plaintiff Ethel Lawrence’s to follow regarding the advice of the clinic’s medical staff prenatal legally is not health care a enforceable promise. however, The offers no for this majority, authority law, it conclusion. am aware of no rule of be law, regulatory or common which would statutory, operate prevent person to from contractually obligating following himself to the advice of a so, Since a is free to physician. person upon do to contractually binding following physi- oneself advice, person exposes cian’s himself to a subsequent breach of contract action for a failure to follow the con- majority apparently advice. appli- fuses the unusualness theory is, cation with its in the abstract. That viability while I would to learn that it surprised common practice patients contractually for to advice, agree to be bound I do by physicians’ not believe such contracts as a matter of law.4_ fact, imagine physician In I can situations in which a would wish contractually patient example, bind his to take certain actions. For physician may a develop offer services free or at a reduced fee order to technique patient’s a new wherein the obediance is essential physician’s perfection technique. to the admittedly majority’s broad-sweeping principle. and evaluation of the While occurrence, point an uncommon does to the flaw the Co Health principle applies plaintiffs’ argu

The same concerning ment the agreement to have an abortion. While am aware of no institution which promise, demands such a I can easily imagine that clinic, run private a charitable religious organization, might prena well offer free prevent tal care as an inducement women from *5 having an abortion.* While such an arrangement would undoubtedly prove difficult for a court attempt to enforce or to a remedy for a *10 arrangement, breach of such an I am unwilling to conclude at this time agreements such legally unenforceable.

Once the conclusion is reached that a person bind himself to follow a may legally physician’s advice, or to forego privi- action he is legally take, leged to question becomes a factual agreement. whether he has made such an It is improper to resolve that factual question context of a brought pursuant motion to MCR 2.116(C)(8) appeal or in an from an granted order under that subrule.

The and the majority’s trial court’s alternative conclusion, consideration, if any, inadequate disposed more easily of. It is not the role of the courts to ordinarily question the adequacy of the consideration supporting the con- consideration, tract. no Any matter how economi- cally insignificant, support is sufficient to a con- Harwood, supra tract. See at 142.6 summarize, To I would hold person that a may obligate himself to contractually follow the direc- tions of a to physician, forego or an action he is 5 question governmental agency demanding promise of a such a exchange opens which, from a woman in fortunately, for services a Pandora’s box yet upon open. we have not been called to 6However, adequacy may of consideration be relevant in cer instances, Harwood, tain such as to determine the existence of fraud. supra at 142. perform. legally privileged such an obli- to Where exchange given gation for the perform services, serves to another a contract is established. as consideration however, case stress, the fact that this I would summary by way a motion for to us comes express disposition claim.7 I to state a for failure opinion will be able to whether no prove as to trial, a motion even able survive genuine summary disposition issue of for no agree- fact,8 Ms. made her material depart- exchange health for defendant ments provide agreement services. If the health ment’s agree- induce the of one did not other, there is no contract. of the then ment upon Similarly, not been called to con- we have department has whether defendant sider provided agreement appears only Its consideration. provide If, for health services. to have been legal duty preexisting example, it was under a services, the health Ms. Lawrence with to do so cannot constitute its then Lowery Corrections, consideration. Mich App 342, 359; NW2d *11 plaintiffs’ recognize is, at that While tenuous, and, worst, I do not best, believe novel summarily dis- the basis that should theory missing complaint. is novel Plaintiffs’ prove suspect, and, difficult for them will alleged promises and of the the existence establish prom- party of each induced the is, I not at all convinced the other. That am ise of department required that defendant allegedly promises did she to make Lawrence However, the to receive medical attention. in order MCR MCR 2.116(C)(8). 2.116(0(10). Co v majority which seems to elude the and the point yet trial court is that have not been Court, it this upon anyone, called to convince court, or a their claim can be jury, the trial date, plaintiffs out the facts. To have only borne upon opinion, to state a claim. In my been called have done so. they opined Kelly once in most

Judge "[a]s trials, wins and loses.”9 How- somebody somebody ever, majority would have lose today they day before have even had their court. To me, that is unconscionable.

I would reverse.10 Co, 514, 542; Chesapeake 9 Kovacs & OR Mich (1984) added). (emphasis NW2d 581 10However, agree majority summary disposition I do with the complaint appropriate light on Count admission in the trial court against of the that Count m did not state a claim department. defendant health