The defendant surgeon solicited the plaintiff for an operation to repair scar tissue on the plaintiff’s hand and stated that he would make the hand “a hundred percent perfect” or “a hundred percent good.” The operation involved skin grafting, but the graft caused the hand to grow hair and left it worse in appearance and utility than before. The plaintiff sued not for negligence in performing the surgery, but for breach of an alleged special contract or warranty based on the doctor’s promise. The trial court submitted the case to the jury and instructed on damages in a way that allowed recovery for pain and suffering from the operation.
When a physician makes a special promise about the result of medical treatment, what is the proper measure of damages for breach of that promise?
For breach of a special contract, damages are measured by the expectation interest: the difference between the value of the condition promised and the value of the condition actually resulting, together with any consequential losses proved. Pain and suffering incident to the operation are not recoverable when they were part of the contemplated treatment, unless they flow from the breach rather than from the agreed procedure itself.
Yes, a physician may be liable for breach of a special promise as to results, and the proper measure of damages is the difference between the value of the perfect hand promised and the value of the hand after the operation, not the difference between the pre-operation hand and the post-operation hand. The trial court’s damages instruction was erroneous because it permitted recovery for pain and suffering ordinarily incident to the operation.
The court treated the doctor’s statement as evidence from which the jury could find a binding promise rather than mere opinion or encouragement. Because the action sounded in contract, the goal was to put the plaintiff in the position he would have occupied had the promise been performed, which is the standard expectation measure. Under that measure, the relevant comparison is between the promised hand and the actual result. The ordinary pain and suffering of the operation could not be added as damages because the plaintiff agreed to undergo the operation and such pain would have occurred even if the contract had been fully performed.
Hawkins is the classic contracts case for the expectation measure of damages and for distinguishing contract recovery from tort-style compensation. It is often paired with cases on reliance and restitution to illustrate the major remedial interests in contract law. The case also shows that a doctor may incur contract liability when making a definite warranty of results, apart from malpractice principles.
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