(dissenting). In these early weeks of 1971 an exuberant new majority of a once great appellate court prepares to launch an unwarned, unprecedented, wholly gratuitous and destructively witless war of “contract liability” upon a brother profession which, by the multifold harassment of malpractice actions, has been forced already to undertake what is professionally known as “defensive medicine.”1 What the statewide impact will be, when today’s majority opinion is released, is not difficult to foresee. The five Justices composing this new majority should be forgiven, for demonstrably they know not what they do to an old and indispensable relationship of reciprocal trust which the legal profession and the followers of Hippocrates have always identified as that of physician and patient.
When this case was submitted May 5 last year, the writer as then assignee under our system wrote for a majority. His opinion for reversal was submitted to the other Justices on May 21, 1970. It appears verbatim at the end of this 1971 dissent.2 I stand by it today, just as last May. One endorse*77ment committed last year was eliminated by the progressive and then terminal illness of the late Justice Harry F. Kelly. The other was eliminated by political action November 3.
Determination of the appeal was held in abeyance by Justice T. ,G. Kavanagh, for preparation of an announced minority opinion. July 8 the Justice delivered to us an opinion proposing affirmance which, for reasons I think may be developed circumstantially, will not appear in our reports. Thereafter, with each of the two conflicting opinions bearing three signatures and awaiting Justice Kelly’s hoped for recovery, we were compelled finally to enter our November 30 order for rehearing of a then deadlocked appeal. That order eliminated the votes of two Justices who, but for events starting June 1, would have participated in a reasonably prompt decision, last year. Thus does the precedential law of Michigan swing back and forth like a two year timed metronome.
When one writes for a majority be is inhibited. As Justice Cardozo wrote (Selected Writings of Benjamin Nathan Cardozo, Fallon Publications 1947, p 353), “Comparatively speaking at least, the dissenter is irresponsible. The spokesman of the court is cautious, timid, fearful of the vivid word, the heightened phrase.” Then the Justice proceeded (same page): “Not so, however, the dissenter. He has laid aside the role of the hierophant, which be will be only too glad to resume when the chances of war make him the spokesman of the majority. For the moment, he is the gladiator making a last stand among the lions.” (To which the writer must add that the gladiator, wielding bis grimly boned claymore, usually begat a pretty fair lunch while the *78wounded lions that managed to survive were getting almost as costly a meal.)3
Much more than this has been written about the chores of a dissenter. I prefer to say in present context that his duty is to warn a great unrepresented throng of directly concerned citizens, doctors and patients alike, that the hitherto dependable nature of a wholesome relationship is bound by this upcoming judicial decision to lose much if not all of its value, and that the bedside assuager may no longer lay that alleviating foundation for ordeal, as before. The patient and his consulted surgeon must each proceed hereafter at wary and worried arm’s length, with words and writings chosen with care and recorded as a basis for the surgeon’s advisory judgment, that is, whether to operate or not operate. I can think of no greater blow a Court may strike at what is needed most, confidence and mutual trust that is, when the sick must consult an operating specialist with view toward that kind of major surgery which no man may deny is fraught with peril, no matter how skilled the surgeon and no matter the perfection of his work.
First: What is the Specific Nature of Our Divisive Issued
Plaintiffs, husband and wife, sued the defendant surgeons in separate counts for alleged breach of contract and malpractice, both charged as having arisen out of the same transaction and the same facts. The first count avers that the defendant surgeons for good and valuable consideration contracted with plaintiff Richard A. Guilmet to remove a portion of his stomach by “an operation known as *79a gastric resection,” that defendants performed the agreed operation “in an unworkmanlike, unprofessional and unskilled manner,” thereby injuring “plaintiff’s esophagus, a heretofore healthy part of his body which required no treatment,” and that they were injured thereby to the tune of $365,000.
The second count, for malpractice, charged the defendants similarly excepting only that the breach of contract theory was omitted from that count. Thus the first count was pleaded ex contractu upon negligence and the second was pleaded ex delicto upon negligence. See full quotation, ante at pp 71, 72, of the “breach” paragraphs of count one of plaintiffs’ complaint.
The pleaded issues were tried to a jury. The verdict of the jury specifically acquitted the defendants of negligence and found for the plaintiffs under the count ex contractu, in the amount of $50,000.
The verdict of the jury, and the verdict of today’s majority with respect to the jury’s verdict, expose with precise clarity that which on rehearing has become a simple and quite decisive issue. Here is the jury’s verdict:
“Foreman: The verdict of the jury is that on the count of malpractice, not guilty. On breach of contract, guilty.
“The Court: The word ‘guilty’ is not used except in criminal matters. Is it your finding that you found no negligence?
“Foreman: Yes.
“The Court: The finding of the jury is no negligence ?
“Foreman: That’s correct.
“The Court: You find breach of contract?
“Foreman: That’s right. Correct.
“The Court: What did you assess by way of damages ?
*80“Foreman: Fifty thousand.
(Jury sworn as to verdict [also polled]) * * *
“The Court: Ladies and Gentlemen, that concludes the trial of this cause.”
Here is today’s majority verdict, repeated for accentuation:
“The jury’s verdict of ‘no negligence’ does not resolve the contract question.
“IF THERE WAS A CONTRACT TO EFFECT A CERTAIN RESULT IT DOES NOT MATTER WHETHER THE TREATMENT WAS DONE NEGLIGENTLY OR WITH CONSUMMATE SKILL. IF THE CURE WAS NOT EFFECTED THE CONTRACT WAS BREACHED.”4
(I have put this last paragraph in full caps, that it may stand forth shamelessly naked before the courts of other states when they, predictably, are called upon to follow suit.)
As was noted last year, the “unworkmanlike, unprofessional and unskilled” language of count one manifestly was taken from, and plaintiffs’ contract theory of recovery was planted upon, the most prominent authority cited by them. That authority is Robins v. Finestone (1955), 308 NY 543 (127 NE2d 330), a decision which came to review, not as here after trial and verdict but upon the defendant surgeon’s motion to dismiss. His motion assigned New York State’s two-year statute of limitations, applicable to non-contract actions, as the sole basis of dismissal. The New York Court of Appeals held only that the complaint stated a cause ex contractu against the defendant surgeon, thus bringing into play the state’s much longer limitational statute. *81There was no holding at all that the pleaded came would hold up without proof and finding of the negligence charged in Mr. Robins’ complaint.
Hence, unlike last year, we are now definitely squared off for and against proposition that the jury’s verdict, having absolved the defendants from negligence, wiped out plaintiffs’ pleaded and tried theory that the alleged breach was committed by the specific acts of negligence that are charged as breach in plaintiffs’ first count.
Second: May These Plaintiffs Have Judgment Under the First Count, the Defendants Having Been Exonerated of Negligent Conduct as Alleged in that Count?
My then as now negative answer, with reasons based particularly on the reasoning of cases decided in California, Illinois and Montana,5 appears in the opinion submitted last May. As against this there is no pretense of proffered authority or precedent. My Brothers five just say “This is the law.” That they do with an arrantly dixitized vengeance, for all of the skilled research clerks of Lansing, working with no surcease and without food or drink, never could come up with any kind of respectable or even plausible authority holding that a surgeon, said as having contracted to accomplish what none but the Great Maker could perform, may be held to respond in damages for having failed to provide it.
The affirming Brethren attest on their own that no matter the skill with which these unusually competent and experienced specialist surgeons went about a perilously developing and finally successful *82task; that no matter they managed to save Mr. Guilmet’s life by their efforts; that no matter the jury did find them not guilty of negligence, that these same specialists nonetheless “contracted” to provide — yes in “approximately three or four weeks at the most” — a “cure” for Mr. Guilmet’s badly diseased and twice dangerously bleeding stomach and, having failed to have him “hack at work” at end of that four week period, that they are due for mulct aggregating today more than $63,000.
Such is the announced rule of this case, no more and no less. Let it stand in our books for all to read, wonder and prepare either for more amercement of doctors or more “defensive medicine.”
The policy and reasoning declared in the cited California, Illinois and Montana cases is not opposed by Beebe v. Koshnic (1885), 55 Mich 604, which last the Brethren standing for affirmance cite as authority for the proposition that today’s issue of contract and breach became one of fact.
Let us examine the Beebe case. There the doctor was the plaintiff. His pleaded cause was one of special contract, supported by a special consideration, to effect a cure on the same basis as in Hollywood v. Reed (1884), 55 Mich 308, that is, “no cure, no pay.” In view of our irreconcilably variant views of Beebe, hear Chief Justice Cooley tell us in steady — not conveniently expurgated — context what the nature of Dr. Beebe’s cause was, and how the issue there came to this Court (pp 604, 605):
“Cooley, C. J. The plaintiff is a physician, and brings suit to recover compensation for services in curing the defendant of a disease of one of the defendant’s legs. It was a part of the plaintiff’s case that he performed the services under a special agreement that he was only to be paid in the event of a cure. He therefore took the burden of showing *83that a cure had been effected.” (Emphasis hy present writer.)
I have read through, again this year, the 778 pages of this trial transcript. It discloses that the plaintiffs made out no submissible case of negligent malpractice under rules often laid down, strikingly applicable here, as in Lince v. Monson (1961), 363 Mich 135 and Skeffington v. Bradley (1962), 366 Mich 552. It discloses further that the testimony of Mr. Guilmet, taken at its best, failed to make out a submissible case under count one (the “contract” count) of his pleading. The reason is that his testimony did not support any “contract” theory of recovery, that theory being breach occasioned exclusively by negligence.
Read now all of the “breach” paragraphs of Mr. Gruilmet’s complaint:
“5. That Defendants agreed as part of their employment to perform said operation in a good and workman-like manner; that as specialists in surgery they would cure Plaintiff hy said operation and that Plaintiff would he able to leave the hospital in a short time and resume his occupation and normal family life.
W “ W
“7. That Defendants in the course of said operation and in breach of their contract, in an unworkman-like, unprofessional and unskilled manner, injured and perforated Plaintiff’s esophagus, a heretofore healthy part of his body which required no treatment.
“8. That Defendants in further breach of their contract, failed to timely diagnose and ascertain the aforementioned damage and to promptly and properly remedy their unskilled performance hy proper operative and post-operative examination and treatment; that Defendants’ post-operative procedures, particularly the oral administration of food and *84liquid which passed through the perforation in Plaintiff’s esophagus into his chest cavity thereby causing aggravation and infection, was contrary to Defendants’ agreement to exercise care and skill in administering to Plaintiff.
“9. That Defendants in further breach of their contract carelessly deposited and left a clamp within Plaintiff’s abdomen.
“10. That Defendants in further breach of their contract failed to advise Plaintiffs of the risks involved and serious consequences attendant to said -operation and failed to achieve satisfactory results.
“11. That Defendants wrongfully misrepresented to Plaintiffs and concealed from them the injury to Plaintiff’s esophagus and their careless and negligent acts in said operation as well as the extent of the surgery performed and the permanent and serious nature of the injury resulting from their treatment.”
Consider the pleaded factual specifics distinguished from the legal conclusions that are set forth in the quoted paragraphs. One is declared by paragraph 7, the other by paragraph 9. Paragraph 7 declares that the defendants “perforated” Mr. Guilmet’s healthy esophagus. Paragraph 9 declares that they left a “clamp” in his abdomen.
Take “7” first. Did the defendants “injure and perforate” Mr. Guilmet’s esophagus? The claim was based in particular upon an entry in the hospital record made by Dr. Wood, a specialist in thoracic surgery, not abdominal surgery, some five days after the gastric resection was performed. Dr. Wood had been called into consultation by the defendants in view of Mr. Guilmet’s then precarious condition. His entry reads:
“History and progress noted. X-ray today shows perforation of the lower esophagus — correction, *85lower esophageal segment with large pneumothorax on the right and pleural effusion on the left.”
Dr. Wood was sworn by plaintiffs as their witness. Unless our standing rules of evidence have changed, plaintiffs vouched for his credibility, which is not to suggest that there was anything incredible or doubtful about his testimony. It developed without shred of dispute, both by Dr. Wood’s testimony and that of defendant Arena, that the noun “perforation” was used by customary medical parlance in its broad sense and that the hole in the lower esophagus, discovered some days after the operation as above, is known technically as a “spontaneous fistula.” Hear Dr. Wood on this:
“Q. You have indicated a spontaneous fistula. Would you explain to the jury what the mechanics of such a thing might be?
“A. It usually occurs in a patient who has some vomiting for any particular reason. Vomiting with a large amount of gas in the stomach can suddenly balloon the esophagus beyond its stretching point and it splits. The esophagus is actually a rather weak structure. It has an inner lining called the mucosa and then a muscular coat but it doesn’t have any covering on the outside as the rest of the intestinal tract has, and so it’s a structure which does not have a great deal of strength and so it is possible for it to become perforated without a great deal of injury. I mean, a great deal of force let me say. So a patient that suddenly evacuates the contents of the stomach, if it be dilated with gas and fluid, can so perforate the esophagus. This would be called a spontaneous perforation of the esophagus and it is reported and has a syndrome attached to it.”
Later, when the trial judge intervened by saying he did not hear a presented question, Dr. Wood responded:
*86“Q. Actually in reviewing the chart here, my question was going to be is it your opinion that this hole in the esophagus was created during this operation of the gastric resection?
“A. I didn’t anticipate that question, your Honor. I would be of the opinion that the perforation in the esophagus occurred at some time subsequent to the actual operation. I stated before that if it occurred at the time of operation, the surgeon should see it. It is possible I think that either Levine tube or a situation at the time of surgery precipitated a subsequent perforation, several hours after. I don’t know whether the patient vomited after or not, but vomiting or retching could well have produced a perforation some time after surgery, perhaps during the immediate post-operative period, awakening from an anesthesia.
“Q. At any rate, it is your opinion that it did not occur during the operation?
“A. I think that is what I said.
“Q. Is that your opinion?
“A. I think that it occurred subsequent to the operation.”
It is enough to say that there simply was no proof, or scintilla out of which any permissible inference of actionable practice could be drawn, that the defendants were negligent as charged by quoted paragraph 7, or that they were guilty of “breach” as duplicitously charged in that paragraph. I suggest the Brothers five concede this when they say that the jury’s verdict of “no negligence” did not absolve the defendant surgeons of and from the alleged contractual liability. Do they not say that the defendants must respond no matter the “consummate skill” of their surgical doings?
Now for quoted “9”. This allegation was actually interred at the trial, when the trial judge considered the requests to charge with counsel. When chai*87lenged for proof plaintiffs’ counsel admitted that “clip” should have been employed in the place of “clamp.” Then this took place, with no objection on the part of plaintiffs’ counsel:
“Mr. Condit [attorney for plaintiffs]: I would move to amend the complaint to substitute the word ‘clip’ for the word ‘clamp.’
“Mr. Whitfield [attorney for defendants] : I again suggest there is no evidence in the record that this is not within the standard of care. In fact it was testified to do this. It is intended with clips that they be left in and there is no evidence to the contrary.
“The Court: I will have to agree with you on that.”
A “clip” such as was applied to Mr. Guilmet’s vagus nerve, after the latter had been snipped off as a necessary part of the main operation, is of minute size and made of silver. Its permanent purpose is to adjust and control — to the radically reduced size and gastric functioning of the remaining part of the stomach — the'discharge of gastric juices into that part. There was no showing whatever that this was done other than in accord with regularly accepted medical practice.
Third: A Looh at the Consequences of Today’s Misfortunate Decision.
From here on the surgeon contemplating a serious operation will undertake knowingly a third and even more menacing risk should he advise affirmatively. The first of course is the ever sobering possibility of sad or untoward results no matter his “consummate skill” and the careful employment thereof. The second is that crescently more perilous exposure to a suit for negligent malpractice should the result turn out funereal or misfortunate. And now comes the third. It is this Court’s newly invented *88and retroactively granted right of suit against a surgeon upon simple allegation that the surgeon contracted to do that which none but the Deity could possibly agree to perform, that is, effect a “cure” or defined result when the scheduled treatment is surgical removal of a substantial part of an anatomical organ; an organ which, to sustain life beyond extremis, must continue to perform a daily function.6
Does not the complaint before us allege that the defendants entered into an agreement “to perform an operation known as a gastric resection” ? Do the Brethren not realize that the recommended operation necessitated the excision of approximately 80% of Mr. Guilmet’s stomach, and that the vagotomy of which so much has been made was hut a vitally necessary preliminary to the plaintiff-pleaded gastric resection?7
One wonders why the minority affirmers of 1970, and now the majority affirmers of 1971, cannot see that their current opinion will not only create an easy new “breach of contract” way to sue physicians and surgeons for untoward or unforeseen results; that it will in addition open the doors of our courts to actions old and new so long as they pass six-year rather than two-year muster under MCLA § 600. 5807 (Stat Ann 1962 Rev §27A.5807). Do the Brethren not perceive that the medics will go even *89more “defensive” when this latest of our “forward-looking” decisions hits the precedential fan, and that many an operation that might have saved life will not he performed either of professional wariness or, more importantly, inability of the surgeon under new law to prepare his apprehensive patient mentally for the making of an affirmative decision?
It is natural for the sick, and the near kin of the sick, to seek anxiously for more and more medical assurance when the hour for surgical decision arrives. And when that decision is affirmative and the result turns out fatal, disabling or otherwise dismal, it is human to recall the doctor or doctors’ preparational encouragement as misrepresentative or even promissory; certainly when money is brought into legal focus. There is the rub as one gazes at testimony that Dr. Campbell, the circumstances being what they were when Mr. Guilmet was suffering the second time from serious internal bleeding,8 “promised to have the latter back at work in ‘approximately three to four weeks at the most’.”
Another curiosity: What will be contrived out of this case of Guilmet when, the presented case being exactly as at bar except only that the patient has died after administration of last rites, the patient’s promise-oriented widow sues or attempts to sue as fiduciary under our distinctive wrongful death statute? Is not the tortious linchpin of that statute the exact same as was originally written by Lord Campbell, that is, death “caused by wrongful act, neglect or default”? Has not our unique since-1939 statute provided that “All actions for such death, or injuries resulting in death, shall be brought only *90under this section.” (MCLA § 600.2922 [Stat Ann 1971 Cum Supp § 27A.2922]) ?9 What will we pronounce to be the measure of damages in such a case of contracted cure, when death results?
Still another for meditation is what our presently heady majority will do when an indignant client, having lost his case, insists in court on strength of Guilmet that his lawyer promised for consideration a damage verdict and judgment for no less than a given amount, or promised a decree saving the client’s home from an allegedly unjust foreclosure or title-trap, or promised a successful action against that life insurer refusing to pay on allegation of medical fraud, or promised a successful contest of Grandpa’s will, but did not come through. That will be a first class vexer for this Court to grant or deny when the contractual theory of Guilmet is advanced, yes against a lawyer; most certainly when the alleged promisor is a prominent member of the so-called plaintiffs’ bar and he is nominated for condemnation in damages.10
Thus far there appears to the writer still another like bushment the Court should see but does not see, or perhaps is too absorbed to see, dead ahead. But what avails further attempt at persuasion when all caution has been cast aside for the big rush toward more punitive damage awards? In our present exuberance this Guilmet case has become a blind stampede toward another jurisprudential precipice. Hence anyone in the way had best head for the hills *91of reasoned safety. Even a duty-bound dissenter cannot exhort too long, before stepping aside, lest he be run down or carried over the cliff with the rest.
To Conclude:
Is the above too gloomy? Not at all. Today in America there is a great and critically developing shortage of medical men. They already have too much to do, are stretching their hours the more, and are hardly interested in the assumption of more legal risks than they bear now. You see, Brothers all, no Court may or can force a surgeon to perform an operation he deems risky both ways, that is, risky for the patient personally and risky for himself legally. Guilmet will simply make him guardedly overcautious in the making of his most serious judgments, and that is not good for the public weal.
The doctor who cannot prepare and condition his patient, both mentally and physically for a serious operation, is crippled beforehand. So is the patient, only more so. What is recommended surgically becomes progressive Gethsemane for the patient unless the doctor can provide, as before, that “therapeutic reassurance” which Justice Talbot Smith so wisely preserved inviolate when he wrote our carefully narrowed opinion of Stewart v. Rudner (1957), 349 Mich 459, 468. But now with the threatening thrust of Guilmet the doctor must so hedge and guard his words (probably from now on with a tape recorder running) as to create more doubt and fear than ever in the patient’s mind and, here and there, impel a desperate negative decision by the latter.
All else aside, the stark tragedy of this Guilmet precedent is that we Justices will never see or know anything about the hundreds and hundreds of negative decisions today’s determination of “contract” liability will force upon the physician-patient rela*92tionship, both in the offices of medical consultation and in the hospitals of Michigan. Nor will we ever know about those predictably fewer cases where, more than true to their Hippocratic oath, the specialist in internal medicine and the specialist surgeon will risk despite Guilmet their reputations, their property, literally their all upon the sheer need for hopeful assuagement of the patient’s misgivings and fears; only to see things go wrong at the hospital through no fault of theirs.
Those cases will be settled, ere they reach us. Not many will defend in court as Dr. Campbell and Dr. Arena have done, only to find themselves at the mercy of a “contract to cure” when they have undertaken to resect in serious part one of the patient’s vital organs. I have no doubt, having read the details of Dr. Campbell’s enviably proud record in abdominal surgery and of the assiduous skill employed by him and Dr. Arena in bringing Mr. Guilmet finally to that state of health which is reasonably ex-pectable after such an operation, that the ordeal of this trial and of its ensuing appellate history had much to do with his untimely death last year. He and his partner saved Mr. Guilmet’s life. He has lost his, after having been acquitted of negligence and yet held in damages for breach of an unbelievable contract.
All of the defensive measures this Guilmet case will breed are not of course foreseeable by one of our profession. Some are, though. "Will not the Port Huron or Detroit medic, knowing as he does that equally skilled fellows in medicine are available within 15 minutes across the river, more likely refer that uncertain patient over the international boundary for treatment and surgery; over there where the “law” is a little different? What about Niles to South Bend, or Monroe to Toledo? Withal, *93words fit for a judicial report are not available with which to characterize properly the reprehensible nature of this war without warning upon a status of mutual trust.
Such is the ominous and wholly uncalled for stuff of which Guilmet is made. I consider myself privileged to be here at this time for rude exposure — in our books — of what before both the legal and medical professions will stand forth as incredible judicial folly; folly because we are not forced to make such an unreal decision, as occasionally is due when we interpret and apply a statutory or constitutional provision. Here we deal with the common law. Here wisdom is due from us; not legislators or electors. That Lady must have departed our midst January 7 last when five gentlemen of the Court announced that they would endorse what by these presents I oppose.
A final word: Have not all thus far directly concerned with this case, counsel, trial judge, three Judges of the Court of Appeals, and now five Justices of this Court and their clerks, given no thought to where lies the really damning error of judgment for these plaintiffs? Is it not likely, had Mr. Guilmet decided against the recommended operation after having been physically and mentally readied for it by the defendants in February of 1964, that he would not be alive today? I apprehend, that there is some little life-or-death difference between having a major operation when prepared for it with medical care, and undergoing it in desperate emergency after having been brought in by a speeding ambulance with a third attack of internal bleeding.
My vote is cast as before.
*94ADDENDA (June 21, 1971) :
The foregoing dissent was delivered to the Brethren March 24, 1971. May 3 our majority withdrew the opinion criticized by that dissent and substituted in its place another which, as I understand, the regular plurality stands ready to endorse.
This latest opinion begs literally if unintentionally for more denunciation of its ominous threat, and for further alert to the retroactive extension it is due to make of limitational time within which the disgruntled may think up suits, for breach of contract, against members of the medical profession. It should and will be dissected by means of successively contextual quotations, each followed by timid comment.
1. For the first time since this case came to original submission May 5, 1970, the Brethren standing for affirmance have deigned recognition of the fact that their endorsements lockstep over perilously untested legal ground. Let their opinion speak here, for firm inclusion in our annals, lest the following also disappear by amendment or substitution. By the fourth paragraph of this latest opinion five Justices say (ante at p 61):
“The danger attendant upon decision here is that on one hand if we sanction the award of damages to the plaintiffs we may foster suits which threaten the freedom physicians and surgeons must have in the practice of their vital profession, and on the other hand if we deprive these plaintiffs of their award, we not only may do them an injustice hut impair the very process by which we seek to administer justice.”11
Comment: They go on, nonetheless, to court if not invite the conceded danger by upholding, as due *95contractually, this “award” against two blameless surgeons in the sum of $50,000. Thus the statewide impact of the Court’s decision, upon unknown numbers of present and prospective patients and their necessary relationship with the medical profession (saying nothing of the medics themselves), is weighed with, but found wanting against, the claimed right of these plaintiffs whose good fortune it was that the defendant surgeons by their skill succeeded in saving Mr. Guilmet’s life. All this, however, is but nothing compared with the Court’s sweeping assignment to fact finders of all cases that are pleaded and allegedly supported as at bar. See division “4,” post.
2. On the same page the Court advises, in a one-sentence paragraph:
“Defendant Dr. Campbell testified that prior to the operation the plaintiff was in excellent physical condition and the operation was not an emergency.” (Italics by my Brothers.)
Comment: This is the occasionally deceptive half of the truth. The rest is that, when Dr. Campbell was sent for in December of 1963, Mr. Guilmet was in or near extremis, suffering from ulcerous internal bleeding which had sent him unconscious to the hospital. There and then at home he had to be nursed slowly to that state of health which would permit the operation recommended by Dr. Campbell. This was done under Dr. Campbell’s direction, but not until the doctor was satisfied with Mr. Guilmet’s condition vis-a-vis the recommended operation.
It is hardly fair, then, for one to aver upon this record that “the operation was not an emergency.” To the contrary it turned out to be just that, when the defendant surgeons opened Mr. Guilmet’s abdomen and found as they did a stomach so diseased that 80% thereof had to be removed.
*96True, the operation was not deemed an emergency when it was planned by the patient and his major surgeons. Yet I doubt that anyone here is willing to state from the trial court record — upon our record — that it was not a critical job, a true emergency that is, when as only may be done with utmost precision the extent of internal disease is brought to surgical vision and palpation. Who indeed is willing to suggest, the two-times critical background of Mr. Guilmet’s stomach trouble considered, that he in all probability would be just as alive today had the operation not been readied and done when it was?
3. Next comes new reasoning by the Court for sustenance of the award of damages now in scrutiny. Having stated plaintiffs’ claim
(a) That the observations and descriptions of the result which the defendants made were promises to achieve a specific end, and
(b) That they were inducements upon which the plaintiff Richard Guilmet relied in proceeding with the operation, and
(c) That plaintiffs have characterized all this as an undertaking to “cure” Mr. Guilmet of the stomach disorder from which he was then suffering;
our majority proceeds to “cure” this erroneous theory of recovery by sua sponte amendment thereof (an amendment not made, pretentiously or otherwise, upon authority of GCR 1963, 118.3). Read this (quoted from the majority opinion, ante at p 67):
“This appellation of ‘cure’ may be unfortunate.
“The parties when contracting never use the word ‘cure’ and the mere elimination of a troublesome condition may not always be properly so designated. For example, a headache may be eliminated by decapitation but no one seriously suggests that it is a ‘cure’. Similarly the substitution of a different *97stomach disorder for a specific one is not properly-called a ‘cure’ of the original ailment.”
Then comes what I would suggest is a “gisted” review by the Court, rather than a testimonially quoted presentation, of the facts upon which the Court comes to its judgment and the precedential effect thereof {ante at pp 67, 68):
“The following is the gist of what the defendants told him:
“ ‘Once you have an operation it takes care of all your troubles. You can eat as you want to, you can drink as you want to, you can go as you please. Dr. Arena and I are specialists, there is nothing to it at all — it’s a very simple operation. You’ll be out of work three to four weeks at the most. There is no danger at all in this operation. After the operation you can throw away your pill box. In twenty years if you figure out what you spent for Maalox pills and doctor calls, you could buy an awful lot. Weigh it against an operation.’ ”
Comment: Compare this “gist” and its preceding quoted counterpart with that which has been deleted from the Court’s opinion submitted May 3 last:
“The jury’s verdict of ‘no negligence’ does not resolve the contract question.
“IF THERE WAS A CONTRACT TO EFFECT A CERTAIN RESULT IT DOES NOT MATTER WHETHER THE TREATMENT WAS DONE NEGLIGENTLY OR WITH CONSUMMATE SKILL. IF THE CURE WAS NOT EFFECTED THE CONTRACT WAS BREACHED.”12
The comparison made, can there be any doubt that a wary Court has decided recently to avoid any precise definition of what it has in mind, as and for *98some new theory of recovery by plaintiffs? All the profession gets now is “This appellation of ‘cure’ may be unfortunate.”; plus an intimation that defendants may have breached the alleged contract by substituting “a different stomach disorder for a specific one.” As against that plaintiffs’ pleaded and tried, and briefed and supported on appeal, theory of count one recovery is that defendants contracted “to cure him [plaintiff Eichard Gruilmet] of the stomach disorder from which he was then suffering.”13
Come now Brothers, isn’t a planned major operation consisting of a “sub-total gastric resection” of one’s stomach, 80% in this instance, reasonably expected to result in a somewhat different stomach disorder than the infinitely more dangerous “specific” these medics diagnosed, as a basis for their recommendation? What then is the “specific” nature of the contract, and of its breach, upon which the Brethren in majority presently rely? Can we have no answer except that — possibly—the plaintiffs did not intend to plead, or try, an issue of contract of “cure” and breach thereof?
4. Next comes that which, presumably, is designed to soothe a profession already beset by steadily mounting malpractice claims. Plainly it will have an opposite effect.
*99Consider Judge Van Valkenburg’s recent article, “Can Our Courts Be Saved?” (February 1971 issue of MSBJ, 75-77, referring to that part headed “Malpractice Cases.”) He tells us that which is probably better known to trial lawyers and trial judges throughout Michigan than to appellate Judges:
“Malpractice suits have increased by leaps and bounds in recent years, by about eight to ten percent per year. As every judge knows, they are difficult to try and have a sweeping effect on the medical profession and the public. Doctors become extremely cautious, hospitalize patients for minor matters, order unnecessary tests and X-rays and refuse to handle some cases at all. Further, insurance rates have increased — in one state to $5,000 per year — and inexperienced doctors cannot obtain coverage at all unless connected with a firm.”
The Court starts out with observation that “We recognize that what we hold is sometimes made clearer by stating what we do not hold.” (Ante at p 69.) Then, pursuing such an apparently negative vein, my Brothers proceed to peal out a real alarm rather than an intended “all quiet”; one that is bound to send medics and surgeons posthaste to their lawyers for defensive preparations. To make it doubly clear that this is no overstatement, I repeat from the majority opinion the real “gist” of that which the medical profession is due to face; nunc pro tunc six years backward at that (ante at P 69).
“What we are saying is that under some circumstances the trier of fact might conclude that a doctor so speaking did contract to ‘cure’ his patient.
“What was said, and the circumstances under which it was said always determines whether there was a contract at all and if so what it was. These *100matters are always for the determination of the fact finder.” (Italics hy present writer.)
Cited in support of this last is Strong v. Saunders (1867), 15 Mich 339. That case is all that is proffered to sustain the quoted and rather remarkable conclusion of law. Now Strong was a suit in assumpsit to recover compensation for the use of certain range lights and stakes provided by the plaintiff for the guidance of the defendant’s steam tug through the St. Clair Flats, during the navigational season of 1864. The defendant tugboat owner denied obligation to pay on ground that no obligation accrued unless and until the captain of the tug had fixed and certified the amount to be paid, which last had not been done. The Court disposed of the defendant’s requests for separate and alternative jury instructions by saying that “There was evidence strongly tending to show an express promise to pay such sum as the defendant’s captain should certify to be fair and reasonable; and there also was evidence tending to show an implied promise, or, in other words, a clear duty on the part of the defendant to pay a reasonable compensation; * * * .”
I have read the Strong case from one end to the other and am unable to find that the Court employed the inclusive word “always,” or that it made any commitment such as I oppose, or any commitment remotely like it. Moreover, the case presented no question whatever of right to an instructed verdict of nonliability. It actually went back for retrial on account of an error of jury instruction not pertinent here.
We have a seven-tined forkful of uncommon law here. The point made now, for cases pleaded and tried as at bar, is that the issue of contractual liability or nonliability of the defendant doctor or surgeon is always to be one for determination of the *101jury or, if the issue is tried to the court, always for the fact finding determination of the judge. The message will get across. The medical profession and its legal advisers will simply have to ask pardon for taking more defensive measures, as all listen respectfully to the word of the Court.
Now for a few concluding observations:
Throughout a year (plus) of disagreement experienced since this case was initially submitted, one continually nagging question persists. It arises out of the jury’s reported and accepted verdict of “no negligence,” and of “not guilty” (of malpractice). Now most practitioners of law know no way whereby a man may breach a contract another avers he has made excepting (a) by neglect of performance, or (b) by omission or refusal of performance. The latter is not of course charged by these plaintiffs. They do however count upon the former, that is, negligent performance. If any doubt remains on that score, read again the total charging part of count one of plaintiffs’ complaint {ante at p 71).
Plaintiffs’ charge of negligent (“unworkman-like, unprofessional and unskilled”) performance was tried as their count-one issue of contractual liability, along with their count two liability issue of negligent malpractice. The jury found no malpractice and “no negligence.” How then, all dixitism aside, can the trial court’s judgment stand?
If the doctor cannot win even when the jury says “no negligence,” how can he win at all without planning and erecting beforehand his own bar of exposure to what this day is made a newly conceived method of penalizing doctors of medicine and major surgeons for untoward results of the best of treatment, the best of surgery?
The patient who, with fear of his contemplated major operation left not too well assuaged by his *102consulted but legally forewarned surgeon, cannot be tbe heartened and trusting patient he should be. The surgeon who must be on legal guard against his patient and the relatives of that patient, simply cannot perform as otherwise he might. Too often he is likely to leave to the patient, by mechanical record, that critical decision of operation or no operation. And when the doctor of medicine or the specialist in surgery learns that he must by law protect himself against suits upon alleged contracts of cure or result, suits that are due now to be made expansible timewise from two years to six years, our majority can hardly blame that doctor or surgeon for taking the precautionary advice of his lawyer, rather than what may be intended to be the mollifying word of the Court.
It appears now that the die is cast. We are about to provide for grim ingest by our two most eminent professions the very essence of Michigan’s new order of legalistic ultraism. This State, once proud of a national reputation for dependable as well as masterfully written precedents, deserves better than this from a Court which, in the venerable Capitol from which we departed last year, was graced by judges like Cooley in his time and Fellows in the present century.
As before my vote is cast to reverse and remand for entry of judgment in favor of the defendants.
Read “Suing the Doctor: A Rising Problem,” US News & World Report, March 8, 1971 issue, pp 70-72:
“ ‘Defensive medicine.’ Doctors’ fears of malpractice suits are adding heavily to medical bills across the nation.
“As doctors become more aware of the legal dangers they are running, they become increasingly cautious. They turn to a new— and expensive — kind of practice called ‘defensive medicine.’ ”
The USNWR article portrays only what is thus far, in the area of malpractice litigation. The writer thereof knew naught of what in dismaying compound is due for the medical profession of Michigan and those it needfully serves. Fortunately elsewhere, not one high Court of any other State has gone so far as to affirm a “contract” judgment against an accused doctor where the jury has actually acquitted that doctor of negligent malpractice as charged.
(June 21, 1971): The intervening multiplication of pagination of our 385th Report considered, I have decided to eliminate this demonstrative appendix and to advise all concerned counsel that copies thereof will be available upon request directed to me.
The reader will understand that last year’s opinion for reversal was, to satisfy a more kindly ordered Brother of our then majority, couched as Cardozo said was in accord with the proper role of the Court’s “spokesman.”
(June 21, 1971) : Since the foregoing opinion of dissent was submitted to the Justices, this quotation of the then opinion for affirmance was deleted by means of a new opinion for affirmance. See “ADDENDA”, post at p 94.
Wilson v. Blair (1922), 65 Mont 155 (211 P 289, 27 ALR 1235); Marvin v. Talbott (1963), 216 Cal App 2d 383 (30 Cal Rptr 893, 5 ALR3d 908); Gault v. Sideman (1963), 42 Ill App 2d 96 (191 NE2d 436).
Doubtless the medical profession cannot buy insurance protecting against this new kind of professional liability. And even if such insurance were obtainable, what now with Guilmet will be the cost thereof, superimposed as it must be over the cost of liability insurance against malpractice. See the previously mentioned USNWR article at p 70:
“The cost of malpractice insurance for doctors and hospitals has risen astronomically.”
Let me again, as done last year, provide an understanding of what a vagotomy is, distinguished from a gastric resection. Webster has given it, for at least the last 15 years, as the “Surgical division of the vagus nerve.”
To quote plaintiffs’ brief: “As to these conversations appellee testified: ‘I was in deep thought at that time of bleeding, I am bleeding to death in the woods, on the way home from work, some late night, and then he tells me that “Well if there is any more I can do for you, let me know.” Well, I thought about it.’ ”
The preceding statutory provision, § 2921, really buttons this up: “Actions on claims for injuries which result in death shall not be prosecuted after the death of the injured person except pursuant to the next section.”
We have here even now a case which, had Guilmet been handed down a while back, might well have posed for monetary punishment a lawyer who recommended successfully the turndown during trial of an offer to settle for $27,500, only to hear the jury say later “no cause.” See Sifers v. Horen (1970), 22 Mich App 351 and our order granting leave to review, 383 Mich 822.
Until now, the writer has assumed that “justice” is to be administered “under law.”
For quotation of and respects paid this pair of paragraphs, see ante at p 80.
The quotation is taken from count one of plaintiffs’ complaint. It was never amended. The issue of recovery on that basis, plus the effort of plaintiffs to sustain their count for negligent malpractice, were the only issues that were tried below.
Our only question now is whether the plaintiff burden-bearers made out a prima facie case of right to recover under contractually ordered count one. A prima facie case is defined (Purity Ice Cream & Dairy Co. v. Adams Express Co. [1922], 217 Mich 593, 596):
“‘A case made out by proper and sufficient testimony; one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced on the other side.’ 31 Cyc. p 1172.” (Quoted with supporting authority in People v. Licavoli [1933], 264 Mich 643, 653).