The present article intends to briefly explain three contractual damage
remedies available to aggrieved plaintiffs viz., expectation interest, reliance
interest and restitution interest.
The case of Supreme Judicial Court of Massachusetts, Sullivan v O' Connor [i] began
when the plaintiff wanted a nose surgery done for her excessively long nose. Dr.
Connor promised her a nose like that of Hedy Lamarr, the actress-inventor who
invented preliminary technology for Bluetooth, Wifi and GPS and had certainly
proved the maxim “beauty with brains”. Sadly, after three surgeries, Sullivan's
nose turned out to be even worse and had lost symmetry.
She sued for breach of
contract and medical malpractice. The jury decided to award damages for breach
of contract but ruled in favour of the doctor upon allegation of medical
malpractice. At this point, it is desirable for the reader to have questions in
mind like- Should doctor's promise be enforced at all? Was it a good faith
promise or taking it further, a guarantee for specific result? The court gave a
direction to these queries by stating that contractual remedies are not
forbidden for medical cases.
Yes, it is a lawful contract and a suit is
permissible if there is a breach. Doctors and physicians can seldom make such
promises and it is unlikely that a medical practitioner of average integrity
would do so.
The appellate court felt that the damages haven't been calculated appropriately.
In Justice Kaplan's words, she could recover out of pocket expenses
of her distress. We may identify two kinds of damages here viz, direct damage
from disfigurement of nose and the pain and suffering she had to undergo during
the third operation. The reader is made aware that lady entertainer contracted
only for two surgeries. Section 344 of Restatements lays three interests that
contractual damages protect.
Expectation interest arises when one expects a
particular result from a contract. It is required that the person be put in a
good position as he would have been if the contract was performed. It focuses on
the plaintiff's position and is the most commonly awarded remedy. So
mathematically, the damages in the present case would be the value of operated
and disfigured nose subtracted from the value of Hedy Lamarr's beautiful nose or
the pain and suffering from the third operation.
In the instant case, the judge
was of the opinion that enforcement of expectation interest could lead doctors
to practice ‘defensive medicine'. Legal theorists are of opinion that
expectation damages make most sense in commercial context. Had Sullivan not
waived her plea for expectation damages, the world would have seen the grant of
these damages in patient-physician breach of contract cases.
It is interesting
to note that in the renowned case of Hawkins v McGee [ii], expectation damages
were awarded for a "hairy hand". The case is distinguished from the present case
by courts' reasoning that pain and suffering would have occurred even when the
operation was successful, the detriment was not caused by the breach of
contract. Under the reliance interest, the plaintiff is reimbursed for loss
after relying on the contract and is put in a good position as the person would
have been if the contract had not been made.
The position before entering the
contract has to be restored. In the present case, the damages would be the value
given to doctor for the operation, no pain and suffering and the previous long
nose. These damages also focus on the plaintiffs' position.
The judge in this
case has necessarily awarded damages as per the reliance measure. The distress
is the direct and consequential result of breach of the contract, therefore has
to be compensated for. Third type of remedy is the restitution interest whereby
the plaintiff is restored any benefit given to defendant under the contract.
This focuses on the defendants' position and is based on the principle of unjust
enrichment as we know it today.
The general rule is that the plaintiff can choose as to which of the three
damage measures they want to pursue and often they choose expectation damage as
the most favourable. Maybe, such plaintiffs believe in the rule that agreements
must be kept and benefits of the bargain must be accrued!
Written By: Kanika Arora
- Sullivan v O' Connor 363 Mass. 579
- Hawkins v McGee 84 N.H. 114
, LLB hons, RGSOIPL, IIT Kharagpur
Email: [email protected]
, [email protected]