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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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