Question: A physician injected silicone into a patient for purposes of breast augmentation, but used a preparation that was labeled "not for human use." The patient experienced inflammation, burning and discoloration, and subsequently developed chronic cyst formation in the breasts. In a lawsuit against the doctor, which of the following best describes the legal consequences?
By Dr. S. Y. Tan
A. Assuming negligence is proven, she will be awarded both compensatory and punitive damages.
B. Punitive damages are also called hedonic damages.
C. An award for pain and suffering is an example of punitive damages.
D. Punitive damages are frequently bundled with compensatory damages in medical malpractice lawsuits.
E. In order to be awarded punitive damages, the plaintiff typically must prove that the defendant was grossly negligent, exhibiting wanton and reckless disregard of the risks.
Answer: E. Punitive damages, also called exemplary damages, are uncommon in medical malpractice actions. They are awarded only in situations where there is gross or aggravated negligence and not in ordinary negligence, where compensatory damages constitute the usual remedy. Punitive damages should not be confused with damages for pain and suffering, which are common in medical malpractice lawsuits. The latter belong in the category of non-economic or general compensatory damages, as are hedonic damages that address the value of a life lost or truncated. The above hypothetical is taken from an actual case where punitive damages were allowed by the courts because of the egregious nature of misconduct.
Punitive damages are awarded where the conduct complained of merits punishment, hence the quantum, typically large, is added onto compensatory damages. Although punishing the tortfeasor is not a stated objective of the tort system, the use of punitive damages is justified where there is a reckless, willful, or wanton disregard of the obvious risk of harm. The term "gross negligence" is sometimes used to describe this type of misconduct.
For example, evidence that a defendant had prescribed an excessive number of birth control pills (over 1,000 pills within a time period when less than 200 were sufficient) with resulting liver complications was deemed sufficient to raise the issue of gross negligence (Jackson v. Taylor). Punitive damages are typically invoked in products liability actions against large corporations, in which awards may reach the multi-million range. However, some jurisdictions statutorily disallow punitive damages altogether (for example, under the Federal Torts Claim Act).
The U.S. Supreme Court has advanced a three-prong test to determine whether punitive damages are excessive. They are the degree of reprehensibility of the defendant’s conduct; the ratio between the plaintiff’s compensatory damages and the amount of punitive damages; and the difference between the punitive award and the civil or criminal sanctions that could be imposed for comparable misconduct. In BMW of North America, Inc. v. Gore, the litigants were embroiled in a controversy over a repainted BMW car that was sold as a new vehicle without due notice to the purchaser. The jury awarded $4,000 in compensatory damages, and $2 million in punitive damages, but the U.S. Supreme Court ruled that the punitive amount was grossly excessive.
It is not always easy to predict whether an appellate court will allow punitive damages, reduce the amount (termed a remittitur), or disallow them altogether. In Noe v. Kaiser Foundation Hospitals, the Supreme Court of Oregon disallowed punitive damages where the defendants (a medical resident and supervising staff physician) were judged to be negligent for performing a circumcision without parental authorization, but did not act in an aggravated disregard for their professional duties. In Manning v. Twin Falls Clinic & Hospital, Inc., punitive damages were allowed to stand against a nurse who moved a patient with terminal chronic obstructive lung disease without providing portable oxygen. However, the hospital was not liable for the punitive damages as there was insufficient evidence to indicate that it ratified the nurse’s conduct.
Other court decisions have upheld punitive damages in medical malpractice actions. For example, a $2 million award was not considered excessive or disproportionate to the loss of life caused by a gastric bypass surgical procedure that was complicated by postoperative infection (McKowan v. Day). In another situation, the court allowed the case of a doctor who caused his patient to become addicted to narcotic drugs to reach the jury on the question of punitive damages (Los Alamos Medical Center Inc. v. Coe). In yet another, the jury awarded $125,000 in punitive damages in addition to compensatory damages because of the doctor’s wanton failure to provide follow-up care for a child who developed fever and gangrenous toes following foot surgery (Dempsey v. Phleps).