View opinion on Lexis AdvanceWhere substantial performance has been rendered, the remedy is the cost of completion or correction, unless that cost "is grossly and unfairly out of proportion to the good to be attained. When that is true, the measure is the difference in value." The "difference in value rule" is applied to avoid "economic waste". But where the defect in performance is substantial, the cost of completion or correction will be awarded "notwithstanding the relatively small fee…charged for services rendered."
Contracts II, Pages 1060–1061
Khiterer v. Bell
Court of Appeals of Arkansas, 2005
Facts:
Defendant, a dentist, gave claimant two root canals and fitted her with three crowns. Claimant then treated with another doctor who informed her that her crowns were entirely porcelain instead of porcelain on gold as they should have been.
Issue:
To what damages is claimant entitled to for receiving a superior medical product with only a minor cost difference?
Rules:
Page 1060–1061
Whether the form of action is contract or tort, "the inquiry must always be, what is an adequate remedy to the party injured"; "the law awards to the party injured a just indemnity for the wrong which has been done him, and no more."
Reasoning:
There is nothing special about medical procedures in this area. As the defect was substantial but the breach was not, claimant is not entitled to a complete return of her fee. Since required her crowns to be replaced over this would be "grossly and unfairly out of proportion to the good to be obtained," her damages must just be the difference in value. The only value lost is that the porcelain crowns only required a cement $10 cheaper.
Holding:
Claimant is entitled to the difference in value given to her, or $10 here. Judgment to claimant for $10.
