A Few Medical Malpractice and Punitive Damages Misconceptions

I’ve got a couple issues with this Daily Business Review article:

A Fort Lauderdale, Fla., man, who is suing two Broward County doctors for malpractice in a rare case allowing a punitive damages claim contends one of his surgeons “left me on the table unconscious to be mutilated” by the other doctor.

Thomas Glasson, a former lawyer, claims his plastic surgeon later lied about his detached role in the botched surgery, created two sets of medical records to hide the truth and still billed his insurance company for performing surgery.

Attorney Spencer Aronfeld of Aronfeld & Associates of Coral Gables, Fla., who represents Glasson, said the punitive damages option is unusual in Florida and nationally. Broward Circuit Judge Peter Weinstein issued an order in July putting punitive damages in play, and Florida’s 4th District Court of Appeal on Sept. 29 denied a petition for a writ of certiorari on the issue. The trial is set for March 2.

“We’re unaware of any other case in the country where a patient has been allowed to allege — against a physician in a plastic surgery case — punitive damages for an intentional tort,” Aronfeld said.

First, the conduct described in the article was not “intentional.” “Reckless,” sure. But there was no apparent intent to cause the harm.

Second, while it is rare for a court to permit punitive damages in a medical malpractice case (really, in any case) go to a jury, this particular ruling — a pretrial denial of defendant’s motion to exclude punitives — is not that major of an event. I had the same ruling in a medical malpractice trial (tried with Catherine Rothenberger) two months ago. It just means the court finds that the plaintiff might be able to show an outrageous disregard for others’ safety at trial. The defendant still gets three cracks at knocking punitives out: at nonsuit when plaintiff rests, at directed verdict when defense rests, and, if the jury finds punitives, at judgment notwithstanding the verdict. Then comes appeal.

Third, if they want another case in the country alleging punitive damages against a plastic surgeon, they need only look to the Fledderman case Slade McLaughlin and I took to trial in April and May this year. It resulted in a $20,525,000 verdict, $15,000,000 in punitives. The court also denied defendants’ motion for judgment notwithstanding the verdict, and requests to lower the punitive damages.

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