Hawkins v. McGee
84 N.H. 114, 146 A. 641 (N.H. 1929)

  • Hawkins had a problem with his hand. He went to a doctor, McGee, who promised that an operation would make a patient’s hand ’100% perfect’.
    • It was a very explicit claim, unlike most doctor patient claims that are vague (i.e. “You’ll be fine” “I’ll do my best”).
    • That wasn’t the only thing McGee said. (The doctor solicited the patient for the operation, and the doctor wanted to experiment on skin grafting.)
  • Turns out, the operation was not a success and Hawkins wasn’t ’100% perfect’. He sued for breach of contract.
    • Note that there was no claim of malpractice or negligence (no torts), this was purely a breach of contract claim.
  • The Trial Court found for Hawkins and awarded damages for pain and suffering. McGee appealed.
    • The judge told the jury to “award the plaintiff for what pain and suffering he has been made to endure, and for what injury he has sustained over and above what injury he had before.”
  • The Appellate Court reversed the damage award.
    • The Appellate Court found that, “purpose of the law is to put the plaintiff in as good a position as he would have been in if the contract had been kept.”
    • Therefore, pain and suffering doesn’t count, since surgery would always include pain.
      • Plus, pain and suffering is only relevant as a tort and the doctor was not found negligent.
    • However, McGee is still liable for at least some damages because even if the hand was the same, it still isn’t as good as it would be if the contract had been kept.
  • This case is the standard for contract remedies/contract damages. The standard is to give enough money to put one is the position they would be in if the contract had gone through.
    • This is called expectation damages, or sometimes called benefit of the bargain.