PROCEDURAL HISTORY

ECONOMIC ANALYSIS OF THE CASE

    2. These background facts of the case are provided by a student newspaper account in the Harvard Law School Record, March 17, 1978. George Hawkins had been burned on the hand at age eleven in 1920, in an accident resulting from faulty wiring in the electric lighting of his family's kitchen in Berlin, New Hampshire. After healing, the use of his hand was not noticeably impaired. He had, according to the memory of surviving members of his family in interview nearly sixty years later, a "pencil sized" scar on his right thumb and forefinger, and across the tissue separating them. The scar was noticed by the family physician, Dr. McGee, on a house call in 1924. For three years, Dr. McGee urged Hawkins and his parents to have a skin graft, stressing the socially uncomfortable character of a such a scar. The doctor provided significant assurance as to the outcome of the surgery (I will give the boy a whole hand, a new hand) and as to the consequences of the surgical procedure (three or four days in the hospital, followed by three or four days of outpatient recovery to full normal health with a hand good as new). The first set of assurances was upheld as contractual by the court of appeal, while the latter was not. Part of the Doctor's motive, it was suggested by the plaintiff attorney, was to experiment on skin graft techniques that he had witnessed but not previously performed. That was held to be the element of consideration in the ensuing trial proceeding. Hawkins finally consented (against advice obtained years earlier, from specialists in Montreal, that nothing useful further could be done for the hand), and surgery was undertaken in 1928.

    The result was most horrid. When his mother beheld George in post-operative recovery, she fainted. Her son was lying, bleeding profusely, with his hand grafted to his chest. Bleeding continued intermittently throughout the remainder of his life. The wound became infected, and post-operative hospitalization was prolonged through three months. After the graft was released, the skin removed from his chest began to sprout hair on George's hand. Full use of the hand was never recovered, and George, a shy person in any event, dropped out of high school in mortification at its appearance. Further consultation with Montreal specialists resulted in the same advice: cut your losses, and do nothing further. A local Berlin attorney masterminded (or by blind luck mistakenly stipulated) the charge of breach of contract, instead of the more ordinary charge of tort through malpractice or negligence. Negligence might have been very difficult to prove in this case.

    The trial court instructed the jury on measurement of damages that we recognize as based on expectation loss; the appropriate sum of money should suffice to make the plaintiff as well off as if the operation had been performed as guaranteed. The appellate court concurred. The trial court instructed on evaluation of reduced functioning of the hand which resulted directly from the surgery, as an additional element of damages. The appellate court, perhaps correctly, perhaps incorrectly, designated that damage as properly comprehended in the expectation loss theory: we cannot tell from the record whether the appellate court reasoning on this point is correct. The trial court instructed on the measurement of pain and suffering as a component of damages. On this point, the appellate court, acting in clear error, ordered a new trial, holding that pain and suffering are components of the price paid by the patient in anticipation of restoration, and should not have been stipulated by the trial court as items against which recovery could be claimed. The trial court jury had awarded plaintiff $3,000 damages. The appeal court offered to let $500 stand, or otherwise a new trial would be set. After the new trial was ordered, the case settled for $1,400 and legal fees.

    3. Cooter and Ulen, in their development of the theories of expectation and reliance damages, model Hawkins v. McGee as an exchange of money for a more ordinary looking and/or more dexterous hand. Their analysis is substantially correct, but incomplete in its silence on the issue of pain and suffering. We can lay the groundwork for a more complete treatment with a hypothetical set of numbers.

    Suppose that pre-surgery, the economic profile of George Hawkins is reduced to two elements: a personal net worth (including the present value of his prospective future earnings) of $100,000, and a right hand that is scarred but otherwise serviceable. His physician, Dr. Hawkins, offers the following contract: a fully serviceable right hand, without trace of scar, in exchange for a surgeon's fee ($100) plus four days in the hospital ($5 per day, or $20), plus seven or eight days of pain, valued by a sturdy lad at no more than hospital charges: call it $35. Here what quite simply is meant is that George would with equal distaste face the prospect of a loss of $35, or seven days of recuperative pain from the surgery. Those commitments of money and endurance in total actual or implied amount $155 are held, because of the doctor's enthusiastic blandishments, to be contractual prices, and the plaintiff by his action reveals the deal to be a good one by his calculation.

    What materialized from the surgery was quite different from what was contracted. Instead of four hospital days, there were about ninety. Instead of the pain and suffering of normal recuperation, there was the pain and suffering of infection and lifelong bleeding. Instead of the abolition of a cosmetic blemish, there was the creation of a matt of hair (the social implications of which at that time must have been all but intolerable). Moreover, there was diminished motor function in the hand itself, limiting the range of tasks that the plaintiff could perform successfully, and limiting his lifetime earning prospects, apart from any impact of his anguish upon his employability.

    A diagram can be drawn which shows these outcomes: the promise of a perfect hand, accompanied by a $155 loss in wealth; that is revealed to be preferred to the initial situation, a scarred hand with no loss in wealth; and both certainly are vastly preferred to a crippled, hairy and interminably bleeding paw with a loss in actual wealth due to earning impairment and pain-equivalent wealth that runs to thousands or even tens of thousands of dollars.

    4. According to the Harvard Law School Record article, George Hawkins went on to lead a miserable reclusive life, and Dr. McGee went on to be elected mayor of Brattleboro, Vt. for several terms.

    5. Look at the next-to last paragraph of comment 3 above. If the numbers are approximately correct, what is the difference in recovery between reliance loss and expectation loss?

    6. A 1972 movie called "The Paper Chase" prominently featured Hawkins v. McGee in an early law school scene.