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In many malpractice actions, the plaintiff advances a claim in negligence based on a breach of the standard of care and disclosure and a claim in contract based on a breach of an implied term of the contract between the defendant and the patient requiring the defendant to provide medical services in accordance with those standards.
The addition of a claim in contract in a medical malpractice action usually will not increase the probability of obtaining a judgment awarding damages to the plaintiff. One possible exception is a claim for damages for loss of the benefit of the contract between the patient and the defendant (for example, a claim that the patient lost a chance for effective treatment of a medical condition as a result of the defendant’s breach of the implied term of the contract that the defendant would provide diagnosis and treatment in accordance with the standard of care).
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