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Hawkins v. McGee

Melissa A. Hale

ProfessorMelissa A. Hale

CaseCast "What you need to know"

CaseCast –  "What you need to know"

Hawkins v. McGee

Citation. 146 A. 641, 84 N.H. 114 (N.H. 1929)
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Brief Fact Summary.

A doctor agreed to perform a surgical procedure on a patient’s hand, and promised certain results.  The results were not achieved and suit was brought.

Synopsis of Rule of Law.

See held section because there are rules concerning the formation of a contract and damages in this case.


The Defendant, a doctor (the “Defendant”), removed a considerable amount of scar tissue from the Plaintiff, a patient’s (the “Plaintiff”), right hand and replaced it with skin from the Plaintiff’s chest.  The skin removed was the result of an electrical burn endured by the Plaintiff more than nine years before this procedure.  Prior to the procedure, the doctor told the Plaintiff and his father that the Plaintiff would be in the hospital three or four days, but no more than four.  Additionally, after the hospital stay, the Plaintiff could go back to work in a few days with a good hand.  The doctor also said “I will guarantee to make the hand a hundred per cent perfect hand or a hundred per cent good hand.”  As to damages, the lower court instructed the jury in the following manner: “[i]f you find the plaintiff entitled to anything, he is entitled to recover 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.”


Was a valid contract formed by the doctor’s utterance that ” I will guarantee to make the hand a hundred per cent perfect hand or a hundred per cent good hand”?

•    What is the proper calculation of damages in this matter?


The court first observed that the Defendant’s statements that the boy would be home from the hospital within three or four days and would be back at work a few days after did not form a contract.  Instead, this was the Defendant’s opinion or prediction.  As such, if the Plaintiff were in the hospital or could not work for a longer period of time, the doctor would not be contractually obligated.  The court, however, found that the Defendant’s statement “I will guarantee to make the hand a hundred per cent perfect hand or a hundred per cent good hand” arguably “would establish the giving of a warranty in accordance with his contention.”  The court could not find that the jury improperly construed “whether the words [of the Defendant’s statements] could possibly have the meaning imputed to them by the party who founds his case upon a certain interpretation”.  The court put credence in the fact that the Defendant repeatedly solicited the Plaintiff’s father to perform the operation in which he had little prior experience.  The court concluded “[i]f the jury accepted this part of plaintiff’s contention, there would be a reasonable basis for the further conclusion that, if defendant spoke the words attributed to him, he did so with the intention that they should be accepted at their face value, as an inducement for the granting of consent to the operation by the plaintiff and his father, and there was ample evidence that they were so accepted by them.”

•    The court observed “[b]y ‘damages,’ as that term is used in the law of contracts, is intended compensation for a breach, measured in the terms of the contract.”  The purpose of an award of damages is “to put the plaintiff in as good a position as he would have been in had the defendant kept his contract.”   Further, recovery “is based upon what the defendant should have given the plaintiff, not what the plaintiff has given the defendant or otherwise expended.”  Additionally, “[t]he only losses that can be said fairly to come within the terms of a contract are such as the parties must have had in mind when the contract was made, or such as they either knew or ought to have known would probably result from a failure to comply with its terms.”  The court found that the damage calculation in this case was analogous to the damage calculate in a case where a machine is “built for a certain purpose and warranted to do certain work.”  As such, the court found that the appropriate damage calculation was “the difference between the value to the Plaintiff of a perfect hand or a good hand, such as the jury found the defendant promised him, and the value of his hand in its present condition, including any incidental consequences fairly within the contemplation of the parties when they made their contract.”  Accordingly, the Plaintiff’s suffering does not appropriately fit into this calculation, especially since the Plaintiff was willing to accept the pain knowing full well it would be a circumstance attendant to the operation.  In other words “[i]t represented a part of the price which he was willing to pay for a good hand.”


This case offers an interesting discussion about when a doctor’s promises can be construed to form a contract and how damages are calculated if said contract is breached.

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