Reference no: EM133676909

Question

Sullivan v. O'Connor, 363 Mass. 579, 296 N.E.2d 183 (1973), another law school classic, was an updated version of Hawkins v. McGee. In a very similar situation to that of Hawkins v. McGee, the Massachusetts Supreme Judicial Court concluded that the reliance measure of damages was appropriate as a matter of policy. In Sullivan, the plaintiff was a professional entertainer. Her nose had been straight but long and prominent. She alleged that the defendant, a surgeon, had promised to enhance her beauty and improve her appearance through plastic surgery. He planned two operations to make her nose shorter and less prominent. The surgeries were not successful - the plaintiff underwent one additional, corrective surgery, but the end result was a nose that had a concave line halfway down, after which it became bulbous. Her postsurgery nose was asymmetrical and, according to the plaintiff, anything but pleasing. Ultimately, the plaintiff sued the surgeon for negligence and for breach of contract. The surgeon was found not to have been been negligent, but the plaintiff was awarded damages for breach of contract. At issue on appeal were the judge's instructions to the jury on contract damages. The Massachusetts Supreme Judicial Court noted: It is not hard to see why the courts should be unenthusiastic or skeptical about the contract theory [of recovery in a lawsuit by a patient against her doctor]. Considering the uncertainties of medical science and the variations in the physical and psychological conditions of individual patients, doctors can seldom in good faith promise specific results. Therefore it is unlikely that physicians of even average integrity will in fact make such promises. Statements of opinion by the physician with some optimistic coloring are a different thing, and may indeed have therapeutic value. But patients may transform such statements into firm promises in their own minds, especially when they have been disappointed in the event, and testify in that sense to sympathetic juries. If actions for breach of promise can be readily maintained, doctors, so it is said, will be frightened into practicing "defensive medicine." On the other hand, if these actions were outlawed, leaving only the possibility of suits for malpractice, there is fear that the public might be exposed to the enticements of charlatans, and confidence in the profession might ultimately be shaken. The law has taken the middle of the road position of allowing actions based on alleged contract, but insisting on clear proof. Instructions to the jury may well stress this requirement and point to tests of truth, such as the complexity or difficulty of an operation as bearing on the probability that a given result was promised. The court then proceeded to discuss the proper measure of damages, should breach of contract be found. Citing Hawkins v. McGee, the court observed that some cases treated a physician's promise like an ordinary commercial promise and allowed "expectancy" damages as a matter of course. Alternatively, the patient could elect to rescind the contract and recover the fee paid to the doctor as "restitution" damages. Other cases, the court suggested, while not distinctly repudiating the analysis in Hawkins v. McGee, applied an intermediate measure: This measure is expressed in somewhat variant ways, but the substance is that the plaintiff is to recover any expenditures made by him and for other detriment (usually not specifically described in the opinions) following proximately and foreseeably upon the defendant's failure to carry out his promise. This, be it noted, is not a "restitution" measure, for it is not limited to restoration of the benefit conferred on the defendant (the fee paid) but includes other expenditures, for example, amounts paid for medicine and nurses; so also it would seem according to its logic to take in damages for any worsening of the plaintiff's condition due to the breach. Nor is it an "expectancy" measure, for it does not appear to contemplate recovery of the whole difference in value between the condition as promised and the condition actually resulting from the treatment. Rather the tendency of the formulation is to put the plaintiff back in the position he occupied just before the parties entered upon the agreement, to compensate him for the detriments he suffered in reliance upon the agreement. The court concluded that in circumstances where an agreement of this sort should be enforced at all, recovery limited to restitution seemed too meager, while expectancy recovery may well be excessive. The court instead favored applying a reliance measure to facts such as those presented. (The court did not ultimately decide whether the plaintiff could have received full expectation damages or whether her recovery would necessarily be limited to reliance damages, because the plaintiff did not press for full expectation damages on appeal.)

(a) Based on this summary of the Sullivan case, catalog the damages the plaintiff would claim under an expectancy measure of recovery, a reliance measure of recovery, and a restitution measure of recovery. Where, precisely, do the differences among the measures lie?