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. [
Day v.
Woodworth, 54 U.S. (13 How) 363, 371 (1851).]
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. [
Jardel Co. v.
Kathleen Hughes, 523 A.2d 518, 529–530 (1987)
.]
Punitive damages are seldom at issue in medical malpractice litigation that
arises from traditional treatment situations. In the medical treatment context,
the plaintiff would need to show that the physician engaged in outrageous
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.
