Tuesday, August 10, 2010

A Contract Claim Permitted in a Medical Malpractice Action Against a Plastic Surgeon

In Duquette v. Oliva, the Appellate Division, Third Department reversed an Order of the Supreme Court, Clinton County, which denied the plaintiffs' motion for leave to amend their complaint. The plaintiff's sought to add a breach of contract claim to their medical malpractice action based upon the defendant's alleged "express special promise" to achieve a definite result in connection with a breast augmentation procedure. The Appellate Division concluded that the evidence showed some merit in the breach of contract cause of action to the extent that the defendant plastic surgeon "made express promises to insert smooth implants [as opposed to textured] and to increase her breasts to a specified size, but did not accomplish those results." Justices Spain and Cardona dissented, concluding that "the record is devoid of any evidence that any precise result was guaranteed that would convert this seemingly viable medical malpractice claim into a cause of action for breach of contract."

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