Punitive Damages in Missouri Medical Malpractice Cases; a Case Study
As most trial lawyers know, punitive damages are rarely submitted to a jury and even more rarely awarded. This is how it should be, and holds even more true for medical malpractice claims since a majority of Missouri physicians are great doctors and not every medical error is malpractice. A very small percentage of the doctors, however, do commit medical malpractice, and an even smaller percentage of physicians make a conscious decision that ultimately puts a patient at harm. This article will briefly address the law on punitive damages in a medical malpractice claim and discuss the experience of our firm has had with one such claim.
R.S. Mo. § 538.210 sets the standard for punitive damages in medical malpractice cases. A plaintiff must prove that the healthcare provider “demonstrated willful, wanton or malicious misconduct with respect to his actions which are found to have injured or caused or contributed to cause the damages claimed in the petition.” Id. The Missouri Supreme has upheld the constitutionality of the medical malpractice statutes, even though the Missouri Legislature set out a different and unequal system for health care providers as compared to every other defendant in the civil justice system. See Adams By and Through Adams v. Children’s Mercy Hospital, 832 S.W.2d 898 (Mo banc. 1992). There must be “clear and convincing” evidence for a jury to award punitive damages, a higher standard than a simple negligence case. Hoskins v. Business Men’s Assurance, 116 S.W.3d 557 ( Mo. App. W.D. 2003). Obviously, there must be a wealth of discovery to prove by “clear and convincing evidence” that a doctor “demonstrated willful, wanton or malicious misconduct.” Id.
Here is an example of a case where punitive damages were applicable in a medical malpractice case. The plaintiff underwent an elective hernia repair surgery and developed a life-threatening infection. Plaintiff claimed that before the surgery an inadequate dose of pre-operative antibiotics was administered. Since the plaintiff was obese and had a history of diabetes, both factors for an infection, plaintiff claimed that the low levels of antibiotics that he was given never provided a therapeutic dosage. Plaintiff alleged that he came back to the defendant surgeon, the signs and symptoms of an infection were ignored. Plaintiff went to a different doctor, who rushed him into surgery. During the course of treatment, plaintiff developed MRSA, a more severe infection, and had to be transferred to a different hospital.
During discovery it was revealed that one of the nurses that treated the plaintiff filed a Quality Assurance Complaint against the defendant doctor. The nurse complained that the doctor did not follow proper sterile technique in changing the bandages. A separate nurse testified that the defendant doctor failed to change his gloves during the sterile dressing change and that she even offered him a new set of sterile gloves at a time that was appropriate for a glove change. Deposition and trial testimony from other nurses revealed that the doctor failed to wash his hands prior to, during or after the care of the plaintiff. Plaintiff’s experts testified that this was a deviation from the standard of care and that it caused plaintiff’s injuries to be worse. The hospital’s infection control nurse testified that the plaintiff’s infection was hospital acquired. The hospital’s risk manager testified that at the time care was provided to the plaintiff that the she had concerns about the quality of care being delivered by the defendant doctor.
The following punitive damage jury instruction, based upon Missouri Approved Jury Instruction 10.07, was submitted:
If you find in favor of plaintiff under Instruction Number 8 and if you believe that:
First, defendant failed to wash his hands and/or broke proper technique before treating plaintiff, and
Second, defendant knew or had information from which defendant, in the exercise of that degree of skill and learning ordinarily used under the same or similar circumstances by the members of defendant’s profession, should have known that such conduct created a high degree of probability of injury, and
Third, defendant thereby demonstrated willful, wanton or malicious misconduct.
If you find that defendant is liable for punitive damages in this stage of the trial, you will be given further instructions for assessing the amount of punitive damages in the second stage of the trial.
In arguing for punitive damages in this case plaintiff did not seek punitive damages on all the deviations from the standard of care, only those that were the most egregious. For example, while plaintiff alleged that the defendant doctor gave the incorrect level of antibiotics, that did not seem to rise to the level of willful and wanton misconduct. Instead, the testimony by nursing staff that the doctor didn’t even wash his hands or that when given the opportunity to put on clean gloves, he refused, seemed to be shocking to our common senses. The trial judge seemed to focus on the ability of the doctor to make a conscious decision, i.e. to accept the offer of sterile gloves, in deciding whether or not to submit the punitive damage instruction.
The jury, apparently, agreed that the defendant deserved punishment for his behavior. After hearing testimony from two experts for the plaintiff and one expert for the defendant, all of whom testified that they would have washed their hands and changed their gloves, the jury returned a verdict for the plaintiff and awarded actual and punitive damages. The defendant doctor had previously moved for a bifurcated trial, so the jury heard brief oral arguments on how much punitive damages should be awarded. Ultimately, the jury returned a punitive damage verdict for approximately 150% of the actual damages award.
The lessons learned from this case were clear – pretrial discovery of all witnesses is extremely important. In medical malpractice cases, attorneys all too often ignore and may not even take the depositions of treating nurses, risk managers, infection control nurses and other healthcare providers. In talking with our jury after the trial we learned that the jury saw the nurses as the only witnesses who didn’t have an ax to grind. Plaintiffs, defendants and experts are all witnesses who have an interest in the outcome of the case. Nurses were putting their jobs on the line by testifying against a fellow healthcare professional and the jury believed every word the nurses said.
While punitive damages in medical malpractice cases are extremely rare, they are possible. Pretrial discovery of the defendant’s conscious decision-making process allow for a punitive damage instruction to be submitted and the testimony of nurses and other healthcare professionals will win the jury.
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