PUNITIVE DAMAGES
The primary role of the tort system is to compensate injured persons. A
secondary role is the deterrence of socially unacceptable behavior. Making
defendants pay for the harm they cause does have a deterrent effect, but in
some situations the outrageous nature of a defendant's actions is out of
proportion to the cost of compensating the plaintiff. In these cases, the jury
is allowed to award punitive (also called exemplary)
damages to punish the defendant:
- It is a well-established principle of the common law, that ... a jury
may inflict what are called exemplary, punitive or vindictive damages upon a
defendant, having in view the enormity of his offense rather than the measure
of compensation to the plaintiff. ... By the common as well as by statute law,
men are often punished for aggravated misconduct or lawless acts, by means of
civil action, and the damages, inflicted by way of penalty or punishment, given
to the party injured.[6]
Punitive damages may not be awarded for merely negligent behavior. The
conduct must be intentionally harmful or grossly negligent:
- The penal aspect and public policy considerations which justify the
imposition of punitive damages require that they be imposed only after a close
examination of whether the defendant's conduct is "outrageous," because of
"evil motive" or "reckless indifference to the rights of others." Mere
inadvertence, mistake or errors of judgment which constitute mere negligence
will not suffice. It is not enough that a decision be wrong. It must result
from a conscious indifference to the decision's foreseeable effect. ... We
prefer the term "reckless indifference" to the term "wanton," which has
statutory roots now largely extinct. Wantonness is no more a form or degree of
negligence than is willfulness. Willfulness and wantonness involve an
awareness, either actual or constructive, of one's conduct and a realization of
its probable consequences, while negligence lacks any intent, actual or
constructive.[7]
Punitive damages are seldom at issue in medical malpractice litigation that
arises from traditional treatment situations. In the medical treatment context,
they are usually awarded when the physician engages in conduct--medical (a
drunk surgeon), social (sexual abuse), or financial (fraudulently inducing the
patient to undergo medically unnecessary treatment)--before a court would allow
the awarding of punitive damages. They are a more significant problem for
medical device manufacturers. Even in these cases, the plaintiff must usually
show that the defendant knew that the product was dangerous, continued to
market the product, and covered up the product defect.
[6]Day v. Woodworth, 54 US (13 How) 363,
371, 14 L ED 181 (1851).
[7]Day v. Woodworth, 54 US (13 How) 363,
371, 14 L ED 181 (1851).
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