Sullivan v. O’Connor
Supreme Judicial Court of Massachusetts, 1973
363 Mass. 579 , 296 N.E.2d 183.
My case brief: http://bit.ly/2MDgSgn
This is a case about plastic surgery gone terribly wrong. My colleague, Andrew San Jose, brought up an intriguing point: To win this case, you, the lawyer, essentially have to roast your client in front of an entire jury to successfully convince them that her face is a crime against humanity. “Your honor, my client was ugly before, BUT LOOK AT HER NOW.” Pizza face aside, the purpose of this case was to illustrate the damages available for a breach of contract. Specifically, expectancy, restitution, and reliance (my primer: http://bit.ly/2vSrUVC).
So what happened?
Sullivan, a known professional performer, contracts with her plastic surgeon, O’Connor, for a new nose. She hoped to trade her long and prominent nose for a cute and “more pleasing” aesthetic. The doc said he could make it happen with two operations which was enough for Sullivan to go under the knife. After the second operation, Sullivan is met with the asymmetric disaster that is her new nose. So, naturally, she agrees to LET THE SAME DOC OPERATE A THIRD TIME because he swore he could totally fix it. Spoiler: the 3rd operation fails miserably.
The pissed off, deformed Sullivan drags her doc to court and attempts to sue for breach of contract and negligence (malpractice). Breach of contract because the doc “promised to improve her beauty” and he didn’t and negligence because Michael Myers probably could have done a better job. The trial jury finds for Sullivan on breach of contract and for O’Connor on negligence. They award Sullivan $13,500 in reliance and restitution damages (her surgery cost $622). But Sullivan feels she’s entitled to expectancy damages too and “excepts” (objects) to the judge’s jury instruction that she couldn’t recover on that. The doc responds to Sullivan’s exception with his own exception saying that Sullivan deserves nothing more than her “out-of-pocket” expenses of $622.
Sullivan, recognizing that $622 is considerably (get it?) less than $13,500, panics and informs the court that she’s super cool with taking the $13k if they reject the doc’s request. The court agrees and overrules the doc’s exception and Sullivan keeps her original award.
Why is Sullivan entitled to reliance damages but not expectancy?
Expectancy is ultimately quantitative and best served in a business situation. Ex: you’re promised $500, they broke the promise, so you should get exactly $500. But when it comes to medicine and surgery, the calculations aren’t as clear. In this case, Sullivan had no proof of lost income or that her hideous disposition put her out on the streets. So how are the courts supposed to determine the amount that’s owed to Sullivan had the contract been fulfilled and she were made to be beautiful? Maybe she would have become the world’s greatest porn star. But does that mean the courts owe her an award of Mia Khalifa’s yearly income? That, of course, would be ridiculous. Hence, expectancy is thrown out.
But reliance throws a much more interesting curve into the mix. When you “contract” with a surgeon it’s pretty much implied and guaranteed that you’re going to go through some pain and suffering during the recovery process. In Sullivan’s case, she agrees to the first two surgeries and therefore agrees to the inevitable resulting pain and suffering. Interestingly though, she does not “agree” (she consents) to the third “no really I can fix it!” surgery. And for that, the court agrees that the pain and suffering incurred during the third surgery was “wasted.” So, to put Sullivan into the position that she would have been in had the third surgery not occurred, the court awards her reliance damages on top of the out-of-pocket because $622 is simply “too meager” for the hell this plaintiff endured.
Breach of contract is fascinating when applied to the medical field because there’s an awkward balance that exists between scaring doctors into practicing “defensive medicine” and only allowing the public the option to sue for malpractice (putting the public at risk for sloppy surgical work). The courts are left to balance between the two. We see this in Sullivan where they deny her plea for expectancy but award her reliance.
But really, the moral of the story here is third time is not always the charm.