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The Beautiful Nose of Hedy Lamrr

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 and value 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!

End-Notes:
  1. Sullivan v O' Connor 363 Mass. 579
  2. Hawkins v McGee 84 N.H. 114

Written By: Kanika Arora, LLB hons, RGSOIPL, IIT Kharagpur
Email: [email protected], [email protected]

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