COA 373583 DAMIA COOPER V ST JOHN HOSPITAL Opinion - Per Curiam - Unpublished 4/15/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
DAMIA COOPER and KYLE PATTEN,
Plaintiffs-Appellants,
UNPUBLISHED
April 15, 2026
9:33 AM
v No. 373583
Wayne Circuit Court
ST. JOHN HOSPITAL, also known as ASCENSION
ST. JOHN HOSPITAL, RACHEL MCLAURIN
MATTHEWS, M.D., and FELICIA JADE
DROUILLARD, M.D.,
LC No. 21-000161-NH
Defendants-Appellees,
and
JAMES E. DENIER, M.D.,
Defendant.
Before: CAMERON, P.J., and BORRELLO and SWARTZLE, JJ.
PER CURIAM.
This matter arises from an action asserting claims of medical malpractice and breach of
contract. Plaintiffs appeal as of right from the trial court’s order dismissing their action. On
appeal, plaintiffs contest only the trial court’s prior order granting partial summary disposition in
favor of defendants on the breach of contract claims. The medical malpractice claims are not
before this Court. For the reasons set forth in this opinion, we affirm.
I. BACKGROUND
On September 14, 2019, plaintiff Damia Cooper presented to the emergency department at
Ascension St. John Hospital with lower abdominal pain and body aches. Evaluation revealed an
intrauterine pregnancy, and an ultrasound was performed. Dr. James Denier’s ultrasound report
indicated Cooper was approximately five weeks pregnant, with the gestational sac appearing high
and to the left, consistent with an interstitial ectopic gestation located in the portion of the fallopian

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tube traversing the myometrium. Consultation notes by Dr. Felicia Jade Drouillard confirmed
imaging findings of an ectopic pregnancy in the left interstitial segment. Dr. Drouillard
documented a discussion with Cooper outlining both medical and surgical management options,
including associated risks and benefits. Cooper elected to proceed with medical management
using methotrexate. The attending OB/GYN, defendant Dr. Rachel Matthews, concurred with this
assessment and management plan.
Cooper executed a General Consent to Treatment form, which stated that she
acknowledged the inherent uncertainties of medical and surgical practice and that no guarantees
were made regarding the outcomes of diagnostic procedures or treatments. Cooper’s affidavit
asserts that she signed this form upon initial presentation to the emergency department, prior to
any interaction with physicians or other medical staff. She further contends that she was not
provided the complete form and was only informed that it signified her consent to receive treatment
at the hospital.
After being notified of her pregnancy, Cooper contacted plaintiff Kyle Patten, the child’s
father, who indicated he would promptly come to the hospital. Prior to Patten’s arrival, Cooper
was advised by a physician that she had an ectopic pregnancy necessitating immediate termination
due to life-threatening maternal risk. Upon Patten’s arrival, both plaintiffs received the same
information. When Cooper and Patten requested a second opinion or additional time for
consideration, they were told the diagnosis and treatment plan were unequivocal and required
urgent intervention. Plaintiffs acquiesced, and methotrexate was administered without delay.
At a subsequent hospital visit, Cooper was informed that the initial diagnosis of ectopic
pregnancy was erroneous. She was advised that the fetus was unlikely to survive the prior
methotrexate exposure and, if viable, would be at significant risk for congenital anomalies. Cooper
obtained a second opinion at another hospital, where repeat ultrasonography demonstrated a
normal intrauterine pregnancy. Despite Cooper’s efforts to preserve the pregnancy, fetal demise
occurred in November 2019.
Plaintiffs initiated litigation asserting claims of medical malpractice and breach of contract.
As the present appeal is limited to the contract claims, discussion is confined accordingly. In
Count 4, plaintiffs alleged that defendants entered into an express or implied contract by
undertaking Cooper’s medical care and breached said contract by: failing to accurately diagnose
Cooper’s condition(s); failing to perform appropriate follow-up or corroborative studies for
diagnostic confirmation; failing to accurately communicate the degree of diagnostic certainty
regarding ectopic pregnancy; and failing to appropriately convey the urgency of pregnancy
termination. Plaintiffs contend that these breaches resulted in the unnecessary loss of their child
and caused significant emotional distress and mental anguish. Count 5 further asserted that Patten
was a third-party beneficiary of Cooper’s contract with defendants.
The trial court granted summary disposition in favor of defendants on plaintiffs’ contract
claims because there was no written contract as required by MCL 566.132(1)(g) for medical
treatment. The remaining claims against defendants were later dismissed by stipulation of the
parties. This appeal followed.

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II. STANDARD OF REVIEW
A trial court’s ruling on a motion for summary disposition is reviewed de novo. Maiden v
Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
Summary disposition may be granted under MCR 2.116(C)(7) if “[e]ntry of judgment,
dismissal of the action, or other relief is appropriate because of release, payment, prior judgment,
immunity granted by law, statute of limitations, statute of frauds, an agreement to arbitrate or to
litigate in a different forum, infancy or other disability of the moving party, or assignment or other
disposition of the claim before commencement of the action.” “A party may support a motion
under MCR 2.116(C)(7) by affidavits, depositions, admissions, or other documentary evidence,”
and the “contents of the complaint are accepted as true unless contradicted by documentation
submitted by the movant.” Maiden, 461 Mich at 119.
Summary disposition is warranted under MCR 2.116(C)(10) if “[e]xcept as to the amount
of damages, there is no genuine issue as to any material fact, and the moving party is entitled to
judgment or partial judgment as a matter of law.” MCR 2.116(C)(10). The trial court must
consider the parties’ evidence in the light most favorable to the opposing party to determine
whether “the record leaves open an issue upon which reasonable minds might differ.” El-Khalil v
Oakwood Healthcare, Inc, 504 Mich 152, 160; 934 NW2d 665 (2019) (quotation marks and
citation omitted).
III. ANALYSIS
Plaintiffs contend that the trial court erred in granting summary disposition on their contract
claims, asserting that the court improperly relied on the statute of frauds, MCL 566.132(1)(g), to
dismiss these claims.
In the context of medical treatment, a cause of action for breach of contract is “entirely
separate” from an action for malpractice even though both claims may arise out of the same
transaction. Stewart v Rudner, 349 Mich 459, 468; 84 NW2d 816 (1957) (quotation marks and
citation omitted). As the Court observed:
The two causes of action are dissimilar as to theory, proof and damages
recoverable. Malpractice is predicated upon the failure to exercise requisite
medical skill and is tortious in nature. The action in contract is based upon a failure
to perform a special agreement. Negligence, the basis of the one, is foreign to the
other. The damages recoverable in malpractice are for personal injuries, including
the pain and suffering which naturally flow from the tortious act. In the contract
action they are restricted to the payments made and to the expenditures for nurses
and medicines or other damages that flow from the breach thereof. [Id. (quotation
marks and citation omitted; emphasis added).]
It is the contract theory that is solely at issue in the present case. In Stewart, the plaintiff
and her husband consulted a physician and specifically requested that the plaintiff’s baby be
delivered by Caesarean section based on concerns arising from the plaintiff’s previous
pregnancies. Id. at 460-461. The Court determined that there was “no doubt that such a contract

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was made.” Id. at 461. However, when it came time to deliver the baby, the physician did not
ensure that a Caesarean section was performed. Id. at 463-464. The plaintiff delivered a stillborn
baby even though a fetal heartbeat had been detected the previous day. Id. Our Supreme Court
held that the contract was enforceable. Id. at 476. The Court reasoned:
A doctor and his patient, of course, have the same general liberty to contract with
respect to their relationship as other parties entering into consensual relationship
with one another, and a breach thereof will give rise to a cause of action. It is proper
to note, with respect to the contracts of physicians, that certain qualitative
differences should be observed, since the doctor’s therapeutic reassurance that his
patient will be all right, not to worry, must not be converted into a binding promise
by the disappointed or quarrelsome. Those qualifications we have in mind as we
proceed. [Id. at 467-468.]
This Court subsequently explained in Penner v Seaway Hosp, 169 Mich App 502, 508-
510; 427 NW2d 584 (1988), that the “special agreement” that gives rise to a contract claim under
Stewart in the context of providing medical treatment requires a “contract to perform a specific
act,” such as the express agreement that the physician in Stewart made to perform a Caesarean
section. The Penner Court distinguished this type of “special agreement” from a mere agreement
to provide appropriate or adequate professional medical care; in the second instance, a failure could
only provide the basis for a malpractice claim but not a contract claim. Id.
In Penner, the plaintiff brought a breach of contract claim against the defendant hospital
based on the defendant’s alleged failure to properly diagnose the plaintiff’s decedent. Id. At 509-
510. This Court held that the plaintiff’s claim sounded in malpractice, not contract:
In this case, plaintiff’s first amended complaint alleged that defendant
breached the alleged agreement by failing to properly diagnose the decedent’s
ailments and render appropriate medical care. In addition, plaintiff alleged that the
decedent received no medical care during his last four days at the hospital. After
examining the allegations in plaintiff’s complaint, we conclude that the allegations
are an attempt to disguise a tort action sounding in malpractice into a contract action
so as to avoid governmental immunity. Plaintiff’s complaint does not allege the
existence of a “special agreement” between the decedent and the hospital. The
“Authorization For Treatment” form signed by the decedent merely authorized the
hospital and its doctors to render appropriate medical care. Their failure to do so
constitutes malpractice. This case is unlike Stewart, supra, wherein the defendant
doctor specifically agreed to perform a Caesarean section. In our case, there was
no agreement to perform any specific act. In fact, the only acts that the decedent
agreed to allow the hospital to perform were those that were deemed necessary or
advisable in the professional judgment of the attending physician. Thus, plaintiff
has not established a contract cause of action. [Id.]
Additionally, the Penner Court held that there could not be an implied contract because the
defendant already had a statutorily prescribed preexisting duty to provide appropriate medical
services to all persons regardless of ability to pay, which meant that there could be no finding of

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the consideration necessary to form a contract with the decedent. Id. at 510-511. This Court in
Penner also concluded that the plaintiff could not sustain the contract claim because there was no
writing as required to satisfy the statute of frauds. Id. at 511. The Court further reasoned, that the
“ ‘Authorization for Treatment’ form [did] not constitute a contract” because “[a]t best, it granted
authority to the hospital to perform the requisite medical services.” Id.
Finally, the statute of frauds, MCL 566.132, provides in relevant part as follows:
(1) In the following cases an agreement, contract, or promise is void unless
that agreement, contract, or promise, or a note or memorandum of the agreement,
contract, or promise, is in writing and signed with an authorized signature by the
party to be charged with the agreement, contract, or promise:
* * *
(g) An agreement, promise, contract, or warranty of cure relating to medical
care or treatment. This subdivision does not affect the right to sue for malpractice
or negligence.
This Court has held that this statute “requires a writing for any agreement, promise or
contract relating to medical care or treatment as well as any warranty of cure.” Powers v Peoples
Community Hosp Auth, 183 Mich App 550, 554; 455 NW2d 371 (1990).
A review of plaintiffs’ complaint demonstrates that the gravamen of their claim is that
defendants breached an alleged contract to provide Cooper with an accurate diagnosis and
appropriate medical treatment. Such allegations, however, sound exclusively in medical
malpractice rather than in contract. See Penner, 169 Mich App at 508-510. Furthermore, because
the alleged agreement pertained to medical care or treatment, the statute of frauds mandates a
written contract. See Powers, 183 Mich App at 554. Plaintiffs concede the absence of a written
agreement; consequently, any purported oral contract is void. Id.; MCL 566.132(1)(g). The
consent form executed in this case does not constitute a contract for these purposes, nor can an
implied contract arise under these circumstances. See Penner, 169 Mich App at 510-511. Plaintiffs
have therefore failed to establish that the trial court erred in granting summary disposition to
defendants on the contract claims.
Affirmed. Defendants having prevailed in full are entitled to costs. MCR 7.219(A).
/s/ Thomas C. Cameron
/s/ Stephen L. Borrello
/s/ Brock A. Swartzle

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