england-and-wales
When, if ever, can Contract Law assist victims or patients of medical malpractice?
<p>I know medical malpractice involves mostly tort law, but <strong>when and how can Contract Law enter the fray or picture?</strong> I am not a lawyer, but I work in the medical field. Ordinarily, physicians ask patients to peruse and sign forms  before prescribing certain medication (e.g. Diazepam) or medical procedure. These forms raise the question of contract law in medical malpractice.</p>
<h3>I know Capacity is a vitiating factor, but I do not know if it is an element of contract formation??? <em>BUT ASSUME CAPACITY FOR THIS QUESTION.</em> I want to focus on capable, reasonable, shrewd ADULT patients. Undeniably, incapacitated, unconscious, diseased patients lack capacity to form contracts!!! Unquestionably, I am asking about NON emergencies!</h3>
<p>I know these 5 elements must be formed for contract. See Ewan McKendrick, <em>Contract Law Text Cases Materials</em> 2020 9th edition, pages 17-8.</p>
<blockquote>
<p>The <strong>first</strong> is that the parties
have reached <em><strong>agreement</strong></em>. This is usually done by demonstrating that one party has made an
offer that the other has accepted. The rules relating to offer and acceptance are discussed in
Chapter 3. <strong>Secondly</strong>, the agreement must be expressed in a <em><strong>form that is sufficiently certain</strong></em> for
the court to be able to enforce. The tests applied by the courts when deciding whether a term
has been expressed in a form that is too vague, incomplete, or uncertain to be enforced are discussed in Chapter 4. <strong>Thirdly</strong>, the agreement must be supported by <em><strong>consideration (although
it is possible that effect may be given to a promise that is unsupported by consideration via an
estoppel)</strong></em>. The doctrine of consideration and the role that estoppel can play in giving effect to
promises that are unsupported by consideration are discussed in Chapter 5. <strong>Fourthly</strong>, the law
may only recognize the validity of the agreement if it is entered into in a particular form (such
as writing). The significance of requirements of form has diminished in recent years but they
have not been entirely abolished. <em><strong>Requirements of form</strong></em> are discussed in Chapter 6. <strong>Finally</strong>,
the parties must have had an <em><strong>intention to create legal relations</strong></em>. This intention is presumed in
commercial transactions, but in the case of domestic and social agreements the law initially
presumes that the parties did not intend to be legally bound by their agreement. The doctrine
of intention to create legal relations is discussed in Chapter 7.</p>
</blockquote>

<h2><a href="https://www.lawteacher.net/free-law-essays/medical-law/introduction-to-medical-law-and-duty-of-care-essays.php" rel="nofollow noreferrer">Hardly ever</a></h2>
<p>While all doctors in private practice has a contract with each of their patients:</p>
<blockquote>
<p>For most practical purposes clinical negligence lawyers can forget about these. It is not that contractual duties do not exist – all private medicine and surgery is performed pursuant to such duties – but that they rarely add anything to the parallel duty owed in tort. The courts have been very reluctant to imply a duty in contract which goes beyond the duty imposed by the common law of negligence.</p>
</blockquote>
<p>While tort damages aim to restore the plaintiff to the position they were in before the tort and contractural damages aim to place them in the position they would have been in had there been no breach, for medical malpractice there is no practical difference.</p>

<p>For contract law to be helpful to the patient the contract would have to have very atypical terms, and the breach of contract claims would have to involve something distinct from medical malpractice in the ordinary sense.</p>
<p>For example, a medical practitioner might be able to lawfully contract to pay a patient either compensatory or liquidated damages for not being able to conduct a procedure at the scheduled time, if the cancelation or postponement were due to no fault of the patient and was not compelled by medical ethics or National Health system rules. Compensatory damages might make sense, if, for example, the patient was an actor, and the actor needed the procedure or treatment done in order to take their next big dollar job.</p>
<p>Similarly, a medical practitioner might be able to lawfully contract to pay liquidated damages of ten thousand British pounds to a patient receiving plastic surgery if an independent arbitrator found that the end result was &quot;not a success&quot;, without regard to whether that result was caused by the malpractice of the medical practitioner, or simply due to bad luck or unanticipated circumstances.</p>
<p>But ordinarily, medical practitioners don't voluntarily enter into those kinds of contracts.</p>
<p>Also, the circumstances when a medical practitioner could enter into such a contract consistent with medical ethical obligations is probably significantly narrower than the circumstances under which this kind of contract would otherwise be valid under the general principles of contract law. Further, the overall arrangement between the medical practitioner and the National Health system might pre-empt contractual arrangements that were designed to get around regulatory requirements of the system like rules on who a medical practitioner must or must not, take on as a patient, or the priority rules afforded to certain kinds of treatments.</p>
<p>For example, a medical practitioner could probably not contract with a patient to give that patient priority for a liver transplant.</p>
