Legal Implications of Doctor's Promise
Richard Warner's The Expectation Measure explores the breach of promise by a doctor in Hawkins v. McGee, leading to a compensation dispute over a botched skin graft operation. The court's interpretation of contractual obligations and damages in medical procedures is analyzed, highlighting the importance of clear promises and the pursuit of justice in breach of contract cases.
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Presentation Transcript
The Expectation Measure Richard Warner
Hawkins v. McGee George McGee had a small, pencil thin scar across his palm (from having grasped barbed wire). He performed a skin graft using hair from George s chest, and he performed the operation badly. George had a hairy, ugly hand. George claimed that Hawkins, a doctor, promised George a perfect hand. If that is true, the doctor breached his promise and George can sue for damages.
A Promise Of A Perfect Hand? The court says: The only substantial basis for the plaintiff's claim is the testimony that the defendant also said before the operation was decided upon, "I will guarantee to make the hand a hundred percent perfect hand or a hundred percent good hand." The plaintiff was present when these words were alleged to have been spoken, and, if they are to be taken at their face value, it seems obvious that proof of their utterance would establish the giving of a [promise of a perfect hand]. Why is that obvious?
The Doctors Argument The doctor argues that no reasonable person would understand that they were used with the intention of entering into any contractual relation whatever, and that they could reasonably be understood only as his expression in strong language that he believed and expected that as a result of the operation he would give the plaintiff a very good hand. This is the typical view of doctor promises of a good result. So why does the court reach a different result?
Facts Showing A Promise The doctor repeatedly solicited from [George s] father the opportunity to perform this operation . . . [There was] a reasonable basis for the further conclusion that, if defendant spoke the words attributed to him, he did so with the intention that they should be accepted at their face value, as an inducement for the granting of consent to the operation by the plaintiff and his father.
Compensation for the Breach The doctor breached his promise. How much money is George owed in compensation?
The Purpose of Awarding Damages The purpose . . . is to put the plaintiff in as good a position as he would have been in had the defendant kept his contract. Our formulation: The fundamental goal of awarding damages for breach of contract is to put the injured party in as good a position as he or she would have been in if the promise had been kept.
The Courts Version of the Rule We concentrate on this: The measure of recovery "is based upon what the defendant should have given the plaintiff, not what the plaintiff has given the defendant or otherwise expended. The court also says: The only losses that can be said fairly to come within the terms of a contract are such as the parties must have had in mind when the contract was made, or such as they either knew or ought to have known would probably result from a failure to comply with its terms. We put this aside. We discuss it at length later.
A Three-Step Rule Determine the promise kept position. Figure out the damages caused by the breach. Award enough money to change the damages caused by the breach position to the promise kept position.
Promise Kept Position If the doctor had kept his promise, George would have had (Pick the best answer) a) A skin-grafted hand. b) A repaired hand c) A perfect hand (a perfectly repaired hand).
Losses Caused By The Breach [To be filled in during class]
How Much Do We Give? We give George enough money to make the losses caused by the breach into the equivalent of a perfect hand. Don t worry yet about how we figure out how much money that is.
The Doctors Fee Should we give George the doctor s fee back? a) Yes b) No
Pain and Suffering Do we compensate George for the pain and suffering that he experiences and that is a normal part of any such operation? a) Yes b) No
The Defective House 1 Smith contacts with Jones for Jones to build Smith a house for which Smith promises to pay $1,000,000. The house Jones builds is defective and has a market value of $750,000. The expectation measure awards Smith a) $1,000,000 b) $750,000 c) $250,000
The Defective House 2 Smith contacts with Jones for Jones to build Smith a house for which Smith promises to pay $1,000,000. The house Jones builds is defective and has a market value of $750,000. During construction, Smith made a partial payment of $250,000. When he saw the condition of the house, he refused to pay more. The expectation measure awards Smith a) $1,000,000 b) $750,000 c) $250,000
Too Much For Smith It looks like Smith Has a house worth $750,000 for which he paid $250,000. So a net gain of $500,000 He gets $250,000 in expectation damages. So he comes out $750.000 ahead. This is better than if Jones had not breached. Then Smith would have a $1 million house for which he paid $1 million. A net gain of $0.
Jones Sues Too Smith s refusal to pay the full amount due is a breach of his promise to pay $1,000,000. Jones sues. His expectation damages are $750,000. This is the $1 million price minus the $250,000 paid. So Smith ends up paying the $1 million to get a $1 million (a $750,000 house plus $250,000 in cash).
Invasion of the Frat Boys Tony Tenor signs a contract with a movie company for the part of "Mad Dog" in the movie "Invasion of the Frat Boys", a comedy set in Malibu. In the contract, Tony agrees to gain 50 pounds since the part calls for him to be fat, and he also agrees to learn to speak without his strong New York accent. Tony hires a nutritionist and a speech therapist, and succeeds in gaining weight and losing his accent. However, the company never makes the movie since the city of Malibu denies it a permit to film in Malibu. The Malibu City Council imposes very stringent requirements for issuing such permits. Films showing Malibu have to be "consistent with the image of Malibu as a dignified and quiet upper class community." The Council held that "Invasion of the Frat Boys" was not consistent with this image. Can Tony recover the payments to the nutritionist and speech therapist under the expectation measure? (a) Yes (b) No
Pomegrante Computers Pomegranate computers, located in Los Angeles, has developed a breakthrough design in computer monitors, the Hades series. They plan to display it at the Winter Computer Trade Show in Chicago (they do not intend to sell any monitors there). They hire Olympus Express, a transportation company, to deliver the monitor and related equipment to Chicago in time for the show. Olympus delivers everything but the monitor, which somehow slipped through the cracks and disappeared as if swallowed up by the earth. Without the monitor, Pomegranate's attendance at the show is pointless. Pomegranate spent $5000 in preparing to go to the show and display the monitor. They spent $2500 of this money before they made the contract with Olympus. Pomegranate sues Olympus for breach of contract. Pomegrante recover under the expectation measure (a) The $5000 (b) The profit they would have made if the monitor had been delivered (c) Both (a) and (b)
Sowle and Wright Steve The Soul Man Sowle runs Wild Vinyl, which sells vinyl records. Richard the 8 Man Wright owns and operates Eight Track, a store catering to collectors of eight-track audio tapes Wright and Sowle agree that Wright will sell Sowle 100 Eric Clapton albums for $1000. Wright decides to make the delivery himself. He picks up the records, but, as he is crossing the Michigan Avenue Bridge, he thinks about just how angry he was when Clapton joined with Steve Winwood and changed the sound of the band. He remembers that Sowle liked the Winwood-inspired sound. Possessed by rage, he slams on the brakes, gets out the car, and begins to throw the albums one by one off the bridge, saying with each throw, Take that Sowle-less. When he finally gets control of himself, he has only 50 albums left. When Wright delivers only 50 albums, Sowle accepts the albums but refuses to pay Wright any money. What are Sowle s damages? What are Wright s damages
Johnniethe RedWalker Johnnie the Red Walker, of Bateau Ivre, Inc. is contacted by Rimbaud to excavate the site for Rimbaud s condo project, Les Genoux, the Eucalyptus Tree Paradise. They execute a written contract under which Johnnie will excavate the property. The contact calls for Johnnie to remove all maple trees on the property but to leave all the eucalyptus trees. The contract explains that Les Genoux appeals to a niche market who believe that inhaling the smell of eucalyptus trees increases their longevity, and that without the trees the market value of the houses drops by $1,000,000. When excavating the site, the transmission on Johnnie s main earth mover goes out, and he has to use a smaller earth mover. This causes delays, and Johnnie is so upset he begins to drink scotch as he works. The drunk Johnnie takes out all the eucalyptus trees by mistake and leaves the maple trees. The distraught Johnnie immediately joins AA, apologies to Rimbaud, and quits construction work to start his own TV show, Dr. John. What are Rimbaud s expectation damages?
