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
- 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
- This is called expectation
damages, or sometimes called benefit
of the bargain.