Sullivan v. O'Connor

NAME:	Sullivan (π) v. O’Connor (Δ),363 Mass. 579, 296 N.E.2d 183 (1973) [J. Kaplan]
P/S:	π brought suit against Δ for the breach of K and negligence. π was awarded $13,500 for the breach of K and threw out the claim of negligence. Δ appealed contending that the trial judge had erred in instructing the jury about the issue of damages. π also objected to those instructions, on the ground that the judge had not instructed the jury that she was entitled to the difference between the value of her nose as promised and the diminished value of her nose after the operations. π indicated on appeal that she was willing to waive that objection if the appellate court denied Δ’s appeal.
F:	π, a professional entertainer, entered into a K with Δ, a plastic surgeon, “to enhancer her beauty and improve her nose.” But, as a result of 3 surgeries (originally only two were initially required) her appearance had been worsened and could not be improved by further surgery. π’s original fee to Δ was $622.65.
I:	Did the judge err in allowing the jury to take into account anything but the π’s out of pocket expenses?
H:	NO. π’s exceptions waived, Δ exceptions overruled.
Rule:	1. Expectancy Damages attempt to put the non-breaching party in the position it would have been had the K been performed. a. Where the π by reason of the operation was put to more pain than he would have had to endure, had the doctor performed as promised, he should be compensated for that difference as a proper part of his expectancy recovery. 2. Restitution Damages attempt to put the breaching party back in the position it would have been had the promises never been made 3. Reliance Damages put the non-breaching party in the position it would have been in had the promise never been made.
R:	1. For breach of the patient-physician agreements under consideration, a recovery limited to restitution seems plainly too meager, if the agreements are to be enforced at all. On the other hand, expectancy damages may be excessive (and harsh) where the doctor has been absolved of negligence by the Trier. Although the fee paid by the patient to the doctor for the alleged promise would usually be quite unequal to the assumed expectancy recovery. 2. There is no general rule barring recovery of pain and suffering (or the like) damages in actions for breach of K. It is all a question of the subject matter and background of the K. When the K calls for an operation on the person of the π, psychological as well as physical injury may be expected to figure somewhere in the recovery, depending on the particular circumstances. Even suffering or distress resulting from the breach going beyond that which was foreseen by the treatment as agreed, should be compensable on the same ground as the worsening of the patient’s condition b/c of the breach.