## Facts

- George A. Hawkins suffered a severe childhood burn to his right hand, leaving significant scar tissue on the palm.
- Dr. Edward R. B. McGee proposed surgery to remove scar tissue and graft skin from Hawkins’s chest onto the hand.
- In obtaining consent from Hawkins and his father, McGee made (1) estimates about hospitalization and recovery time and (2) an assurance that he would “guarantee” a “one hundred percent perfect” or “one hundred percent good” hand.
- The surgery did not produce the promised result; the grafted skin caused hair growth on the palm and left the hand impaired.
- Hawkins sued for negligence and breach of contract based on the alleged guarantee; the negligence claim was dismissed, and the contract claim went to the jury.
- The trial court instructed the jury that, if it found a warranty and breach, damages could include pain and suffering and additional injury beyond the pre-surgery condition.
- The jury awarded Hawkins $3,000; the trial court ordered remittitur to $500, Hawkins refused, and the verdict was set aside.
- Hawkins appealed, challenging the damages instruction.

## Issues

1. Whether the physician’s “guarantee” of a “one hundred percent good hand” could be found to be an enforceable contractual warranty rather than a nonbinding opinion or prediction.
2. If a contractual warranty existed and was breached, what is the proper measure of damages, including whether ordinary pain and suffering from the agreed-upon operation is recoverable.

## Decision

- The court held the evidence permitted a finding that McGee’s “guarantee” was intended and understood as a contractual warranty; submission of that question to the jury was proper.
- The court held the trial court’s damages instruction was erroneous because it treated the case like a bodily-injury measure rather than a contract measure.
- The court required use of expectation damages: the difference between the value of the promised “one hundred percent good hand” and the value of the hand actually delivered after surgery, plus incidental losses caused by the breach.
- Ordinary pain and suffering inherent in the operation and expected recovery period was not recoverable as contract damages because it was part of what the plaintiff agreed to endure in exchange for the promised result.
- The court ordered a new trial limited to determining damages under the correct expectation standard.

## Legal Principles

- A physician’s unequivocal assurance of a specific result may constitute an enforceable contractual warranty if the language and circumstances support a finding that the statement was offered and accepted as a promise.
- Predictions or estimates about duration of treatment or recovery are generally noncontractual opinions and do not create liability merely because they prove inaccurate.
- Contract damages protect the expectation interest: the nonbreaching party is entitled to the monetary equivalent of the promised performance.
- For breach of a medical-result warranty, damages are measured by the difference in value between the promised condition and the post-treatment condition, plus incidental, foreseeable losses attributable to the breach (e.g., added lost earnings from extended disability).
- Pain and suffering that would have occurred even if the contract had been performed, and that was contemplated as part of the agreed exchange, is not recoverable as contract damages; only additional harm traceable to the breach may be compensable.

## Conclusion

The court recognized that a doctor’s “100% good hand” guarantee could be treated as a binding warranty, but held that damages must be calculated by expectation—comparing the promised result to the actual outcome and adding incidental losses—rather than awarding ordinary surgical pain and suffering under a tort-like measure.


Hawkins v. McGee, 84 N.H. 114, 146 A. 641 (N.H. 1929)