December 9, 2008

Med Mal Punitive Damages: How Rare Are They?

Law.com has a story today about a Florida medical malpractice case in which the trial court has allowed the plaintiff to seek punitive damages. The overall theme of the story is that the ruling is a major breakthrough because punitive damages are rarely allowed in med mal cases. The plaintiff's lawyer, Spencer Aronfeld, says he has been contacted by lawyers across the country about this case and has been asked to speak about how to get punitive damages in med mal cases.

The blog Litigation and Trial takes issue with the Law.com story. Pennsylvania attorney Maxwell Kennerly writes that the Law.com story greatly overstates the significance of the Florida ruling. He notes that the Mr. Aronfeld has achieved nothing more than crossing the first procedural hurdle to obtaining punitive damages, and has not actually obtained a punitive damages award from the jury, much less defended that award against posttrial motions and appeal.

I agree with the Law.com article to the extent it suggests that punitive damages are rarely awarded in med mal cases. That seems to be true based on my California experience anyway. I think there are two reasons for that. First, California med mal plaintiffs must demonstrate a substantial likelihood of success before they can even allege a claim for punitive damages. (See Cal. Code Civ. Proc. section 425.13(a).) Second, it is extremely difficult in most medical malpractice cases for a plaintiff to convince the jury that a doctor's conduct was not merely negligent, but was so despicable as to warrant punitive damages. But as rare as punitive damages awards may be in medical malpractice cases, they are not entirely unheard of, and I agree with Mr. Kennerly that it seems a bit premature for Mr. Aronfeld to be crowing about his victory at this stage in the proceedings. He has a lot more hurdles to cross before he and his client actually pocket any punitive damages.

Hat tip: TortsProf blog.