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Defending against claims for punitive damages

October 25, 2011
by Steven D. Weiner and Mario C. Giannettino
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Know how to reduce risk, and what to do in court

In LTC litigation, plaintiffs’ attorneys routinely assert claims for punitive damages, largely based on statutory language such as that contained in the New York Public Health Law. Such a tactic is more than mere legal posturing and can have serious ramifications for LTC facilities as was demonstrated in December 2009, when a Kings County jury rendered a $19 million verdict in a decubitus ulcer case. The jury’s award included $3.75 million for pain and suffering and a staggering $15 million in punitive damages, the first time a jury awarded punitive damages in an action against a nursing home in New York State.

 

In the first instance of punitive damages being levied against a nursing home in the Philadelphia courts, a jury awarded $5 million to the widow of a man who allegedly died from bed sores he developed during a hospitalization. In May 2010, a California jury awarded $28 million in punitive damages in a claim surrounding the death of a 79-year old woman in a pressure ulcer case. In the fall of 2010, a Kentucky jury assessed $40 million in punitive damages against a nursing home where a 92-year-old patient died nine days into his stay.

 

Clearly, trial court judges will increasingly permit punitive damages claims to be considered by juries in nursing home actions. Certain strategies to manage such claims and aggressively limit punitive damages exposure are recommended.

 

UNDERSTANDING PUNITIVE DAMAGES

 

It is critically important to understand the nature of the conduct which punitive damages are designed to redress as well as the judicial limitations that exist to limit them. Essentially, the tort system allows a person to be compensated for actual economic and non-economic damages directly related to the claimed negligence. These awards are called “compensatory damages” and may include such items as lost wages, past and future pain and suffering, loss of consortium and future medical treatment costs.

 

Punitive damages, by contrast, do not compensate the plaintiff, but are designed to deter the defendant and similar persons from pursuing a course of action such as that which damaged the plaintiff. Ideally, punitive damages are awarded only in special cases where the conduct was egregious—motivated by malice, intent to injure or acting with reckless disregard. Judicial restraint is expected to be exercised in the application of punitive damages. They should only be awarded when the conduct is exceptionally repugnant, which rarely applies in the context of claims for medical malpractice or medical negligence.

 

In many states, claims for punitive damages are generally uninsurable because the public policy underlying a claim for punitive damages is to punish the tortfeasor and deter future bad conduct. The logic is that if an insurance company simply insured the risk, there would be no punishment directed toward the actual wrongdoer.

 

A further complication is that many states do not have a statutory ceiling on punitive damages awards, thus there is the very real possibility that punitive damages awards may be greater than the corresponding compensatory award. Additionally, many states require a bond to be posted in order to appeal, and it may be too costly to appeal a large punitive damage award.

 

DEFENDING AGAINST PUNITIVE DAMAGE CLAIMS

 

The general recipe for success for the plaintiffs’ bar in prosecuting claims against nursing homes is to highlight issues unrelated to the actual medical care provided. Some of these issues include focusing the jury’s attention on “poor” documentation and claims of “falsified” records to overcome issues related to the plaintiff’s underlying illnesses.

 

Plaintiffs’ attorneys will inflame the jury by presenting blown-up photographs of pressure ulcers, with which most jurors have no prior experience. Attempts will be made to render the corporate institution a faceless entity, whose primary purpose is the business of promoting “profits over people.” Specific staff members will be targeted for depositions, particularly disgruntled former employees, hoping they will speak negatively about their experiences at the facility. Depositions of staff who are considered most likely to lack any comprehension of the legalities associated with their duties—the CNAs—will be sought because they may have failed to document, overwrite on documents or chart cares when the resident is not even in the facility.

 

Through the disclosure of personnel records, plaintiffs’ attorneys will try to demonstrate that the staff assigned to care for the decedent was unqualified for employment, poorly in-serviced or continued to be employed despite a history of repeated, documented care failures.

 

REDUCING RISK

 

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