Contracts

CASE BRIEF

Sullivan v. O’Connor

COURT
Supreme Judicial Court of Massachusetts, 1973

PARTIES
P = Sullivan
D = O’Connor

FACTS
P, professional entertainer, entered into contract with D for nose surgery to enhance
appearance. After 3 surgeries, Ps nose was worsened. It could not be improved by further
surgery. P did not demonstrate that change of appearance resulted in loss of employment.
P’s expenses (incl. D’s fee) totaled $622.65.

PROCEDURAL HISTORY
P files complaint for breach of contract as well as negligence (conventional form of
malpractice). D answers with general denial. P requests trial by jury, which is granted. Judge
puts as special Qs to jury the issues of liability on the two counts (breach of contract and
negligence). Jury returns with verdict for P on contract count and for D on negligence count.
Judge instructs jury on issue of damages. Judge instructs jury: (1) P can recover on out-of-
pocket expenses; (2) can recover on damages flowing from D’s breach of promise; (3) P can
recover on pain and suffering involved in third operation but not in the first two; (4) any loss
of earnings (no proof there was any) should not enter into calculation. Jury finds verdict in
favor of P and grants $13,000.

CLAIMS (*Exceptions = exclusions/objections)

P alleges she entered into a contract with D for plastic surgery on nose to enhance her
beauty and improve her appearance. P claims D failed in achieving the promised result and
caused: (1) disfigured/deformed nose; (2) pain in body and mind; (3) subjected her to other
damages and expenses. P also claims D was guilty of negligence in performing surgery
(form of malpractice).
 D’s exceptions: (1) judge’s denial of Ds request for general charge; (2) judge’s
refusal of charge that P could not recover for pain and suffering connected with third
operation; (3) judge’s refusal of charge that P could not recover for impairment of P’s
appearance and associated mental distress.
 P’s exceptions: judge’s refusal of request to charge that P could recover difference
in value between nose as promised and nose as appeared. (Waives this right if court
overrides D’s exceptions)
ISSUE
Did the judge err in its jury charge, excluding out-of-pocket expenses but allowing all else? Is
P entitled to recover for (1) worsening of appearance and (2) pain and suffering and mental
distress from third operation?

RULE(S)
Expectancy or reliance rule.

HOLDING
The court holds that all of Ds exceptions fail and that P is not entitled to recovery of out-of-
pocket expenses. However, she is entitled to recover for worsening of condition and for the
pain, suffering, and mental distress involved in the third operation.

REASONING
1. Court takes a middle of the road approach
a. “restitution” measure (fee paid) might be too meager since there is also the
issue of the worsening of P’s condition
b. “expectancy” measure might be too extreme (i.e. to put value on condition that
would or might have resulted had the procedure been successful as promised –
hard to imagine for trier of facts)
c. “reliance” measure is middle of the road: idea to put P back in original position
before procedure; compensate for damages he suffered in reliance to the
agreement.
2. There is no previous occasion to apply reliance rule to patient-physician cases.
a. Psychological injury was not fairly foreseeable as a consequence in a breach of
a business contract (buyer purchasing a lot of merchandise and being
disappointed)
b. No general rule barring such items of damage in actions for breach of contract
i. Contract dealing with operation on person, psychological and physical
injury can be expected to play a part in recovery.
3. Suffering is “wasted” if treatment fails.
a. Reliance on breach of physician’s promise similar to usual recovery for
malpractice.

ORDER
Court waives P’s exceptions and overrules D’s exceptions.