October 13, 2008
Contracts Limerick of the Week: Sullivan v. O'Connor
Sullivan v. O'Connor involves a promise by a doctor to provide the plaintiff with a nose that "would enhance her beauty and improve her appearance." However, after three surgeries, the plaintiff emerged with a nose that was disfigured and deformed (as the photo to the left illustrates). She also experienced both mental and physical pain. Plaintiff sued both for medica malpractice and for breach of contract. The jury found for the doctor on the malpractice claim but for plaintiff on the breach of contract claim. She was awarded damages in the amount of $13,500.
This verdict was upheld on appeal, with the Massachusetts Supreme Court ruling that plaintiff was entitled to recover her out-of-pocket expenses ($622.65), for the worsening of her condition and for pain, suffering and mental distress involved in the third operation. Ducking the difficulty of reconciling such damages with contracts doctrine, the court found such harms compensable as either expectancy or reliance damages.
To be honest, I never much cared for this case or its hairy-handed twin, Hawkins v. McGee. They have, for me, the musty scent of a now abandoned pedagogy:
Still, even if legal pedagogy has moved on, the cases are with us -- and yes, they do raise interesting damages issues. Accordingly, a Limerick for Sullivan.
Sullivan v. O'Connor
Assessing a botched operation
Requires tort-like harm calculation.
Suffering and pain
Invade contracts domain
Both as reliance and expectation.
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