For other versions of this document, see http://wikileaks.org/wiki/CRS-RL31721 ------------------------------------------------------------------------------ Order Code RL31721 Punitive Damages in Medical Malpractice Actions: Burden of Proof and Standards for Awards in the 50 States Updated January 18, 2006 Henry Cohen Legislative Attorney American Law Division Tara Alexandra Rainson Law Librarian Knowledge Services Group Punitive Damages in Medical Malpractice Actions: Burden of Proof and Standards for Awards in the 50 States Summary This report consists of a chart setting forth the burden of proof and standards for awards of punitive damages in medical malpractice suits in the 50 states. The burden of proof refers to the plaintiff's duty to present evidence to prove his case. The lowest burden, which usually applies in civil cases, is "preponderance of the evidence." To recover punitive damages, however, a majority of states, as this report indicates, impose a higher burden of proof -- proof by "clear and convincing evidence." Finally, for punitive damages, Colorado requires proof "beyond a reasonable doubt," which is the highest standard -- usually the burden that the government must meet in criminal prosecutions. Standards for awards of punitive damages refer to what the plaintiff must prove to receive an award of punitive damages. To recover compensatory damages in a medical malpractice case, the plaintiff typically must prove negligence. To recover punitive damages, the plaintiff must prove that the defendant's conduct was more egregious than negligence, and usually more egregious than gross negligence. This report sets forth the specific requirements. Most of the provisions listed in the chart apply to punitive damages not only in medical malpractice cases, but in other tort cases as well. Where "punitive damages prohibited" appears, the prohibition may be limited to medical malpractice cases, or it may apply to other tort cases as well. A chart of state caps on awards of punitive damages and of noneconomic damages in medical malpractice cases may be found in CRS Report RL31692, Medical Malpractice Liability Reform: Legal Issues and 50-State Survey of Caps on Punitive Damages and Noneconomic Damages, by Henry Cohen. Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Chart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Punitive Damages in Medical Malpractice Actions: Burden of Proof and Standards for Awards in the 50 States Introduction This report consists of a chart setting forth the burden of proof and standards for awards of punitive damages in medical malpractice suits in the 50 states. The burden of proof refers to the plaintiff's duty to present evidence to prove his case. The lowest burden, which usually applies in civil cases, is "preponderance of the evidence." To recover punitive damages, however, a majority of states, as this report indicates, impose a higher burden of proof -- proof by "clear and convincing evidence." Finally, for punitive damages, Colorado requires proof "beyond a reasonable doubt," which is the highest standard -- usually the burden that the government must meet in criminal prosecutions. Standards for awards of punitive damages refer to what the plaintiff must prove to receive an award of punitive damages. To recover compensatory damages in a medical malpractice case, the plaintiff typically must prove negligence. To recover punitive damages, the plaintiff must prove that the defendant's conduct was more egregious than negligence, and usually more egregious than gross negligence. This report sets forth the specific requirements. Most of the provisions listed in the chart apply to punitive damages not only in medical malpractice cases, but in other tort cases as well. Where punitive damages prohibited appears, the prohibition may be limited to medical malpractice cases, or it may apply to other tort cases as well. A chart of state caps on awards of punitive damages and of noneconomic damages in medical malpractice cases may be found in CRS Report RL31692, Medical Malpractice Liability Reform: Legal Issues and 50-State Survey of Caps on Punitive Damages and Noneconomic Damages, by Henry Cohen. CRS-2 Chart State and Citation Burden of Proof Standard Alabama, clear and convincing "the defendant consciously or deliberately engaged in § 6-11-20 evidence oppression, fraud, wantonness, or malice" Alaska clear and convincing "defendant's conduct (1) was outrageous, including acts done § 09.17.020 evidence with malice or bad motives; or (2) evidenced reckless indifference to the interest of another person" Arizona clear and convincing defendant engaged in "reprehensible conduct" and acted "with Medasys Acquisition evidence an evil mind" Corp. v. SDMS, P.C., 55 P.2d 763 (Az. 2002) Arkansas clear and convincing "defendant knew or should have known ... that his or her § 16-55-206; evidence conduct would naturally and probably result in injury or damage § 16-55-207 and that he or she continued the conduct with malice or in reckless disregard of the consequences ..." or "defendant intentionally pursued a course of conduct for the purpose of causing injury or damages." California Civil clear and convincing "oppression, fraud, or malice" Code § 3294 evidence Colorado beyond a reasonable doubt "fraud, malice, or willful and wanton conduct" § 13-25-127(2); § 13-64-302.5 Connecticut preponderance of the "a reckless indifference to the rights of others or an intentional Freeman v. Alamo evidence and wanton violation of those rights." Management Co., 607 A.2d 370 (Conn. 1992); Sorrentino v. All Seasons Servs., 717 A.2d 150 (Conn. 1998) Delaware preponderance of the "injury complained of was maliciously intended or was the T. 18, § 6855 evidence result of wilful or wanton misconduct by the health care provider" District of Columbia clear and convincing "egregious conduct"; "malice or its equivalent" Railan v. Katyal, 766 evidence A.2d 998, 1012 (D.C. 2001); Croley v. Republican Nat'l Comm., 759 A.2d 682, 695 (D.C. 2000) Florida punitive damages § 766.207(7)(d) prohibited CRS-3 State and Citation Burden of Proof Standard Georgia clear and convincing "willful misconduct, malice, fraud, wantonness, oppression, or § 51-12-5.1 evidence that entire want of care which would raise the presumption of conscious indifference to consequences" Hawaii clear and convincing "defendant has acted wantonly or oppressively or with such Dairy Road Partners evidence malice as implies a spirit of mischief or criminal indifference to v. Island Ins. Co., civil obligations, or where there has been some wilful 992 P.2d 93 (Hawaii misconduct or that entire want of care which would raise the 2000) presumption of conscious indifference to the consequences" Idaho preponderance of the "oppressive, fraudulent, wanton, malicious or outrageous § 6-1604 evidence; for actions conduct"; for actions accruing after 7/1/03, delete "wanton." accruing after 7/1/03, clear and convincing evidence Illinois punitive damages 735 ILCS 5/2-1115 prohibited Indiana clear and convincing defendant "acted with malice, fraud, gross negligence, or § 34-51-3-2; USA evidence oppressiveness which was not the result of a mistake of fact or Life One Ins. Co. of law, honest error or judgment, overzealousness, mere Indiana v. Nuckolls, negligence, or other human failing" 682 N.E.2d 534 (Ind. 1997) Iowa "preponderance of clear, "willful and wanton disregard for the rights or safety of § 668A.1 convincing, and another" satisfactory evidence" Kansas clear and convincing "willful conduct, wanton conduct, fraud or malice" § 60-3701 evidence Kentucky clear and convincing "oppression, fraud or malice" § 411.184 evidence Louisiana punitive damages Naquin v. Fluor prohibited Daniel Services Corp., 935 F. Supp. 847 (E.D. La. 1996) Maine clear and convincing Malice, either express (where the defendant "is motivated by ill St. Francis de Sales evidence will toward the plaintiff"), or implied (defendant's conduct "is Federal Credit so outrageous that malice toward a person injured as a result of Union v. Sun that conduct can be implied.") Implied malice is not established Insurance Company "by the defendant's mere reckless disregard of the of New York, 818 circumstances." A.2d 995 (Me. 2002, revised 2003) Maryland clear and convincing "evil motive, intent to injure, or fraud" Owens-Illinois, Inc. evidence v. Zenobia, 601 A.2d 633 (Md. 1992) CRS-4 State and Citation Burden of Proof Standard Massachusetts preponderance of the "malicious, willful, wanton or reckless conduct . . . or gross Ch. 229, § 2; evidence in wrong death negligence" Caperci v. Hutoon, cases; punitive damages 397 F.2d 799 (1st Cir. otherwise prohibited 1968). Michigan preponderance of the "defendant commits a voluntary act which inspires feeling of Jackson Printing evidence humiliation, outrage, and indignity" Co., Inc. v. Mitan, 425 N.W.2d 791 (Mich. 1988) Minnesota clear and convincing "deliberate disregard for the rights or safety of others" § 549.20 evidence Mississippi clear and convincing "actual malice, gross negligence which evidences a willful, § 11-1-65(1)(a) evidence wanton or reckless disregard for the safety of others, or committed actual fraud" Missouri clear and convincing "conduct that is outrageous, because of the defendant's evil Altenhofen v. evidence motive or reckless indifference to the rights of others" Fabricor, Inc., 81 S.W.3d 578, 590 (Mo. App. 2002) Montana clear and convincing defendant "has knowledge of facts or intentionally disregards § 27-1-221 evidence facts that create a high probability of injury to the plaintiff and: (a) deliberately proceeds to act in conscious or intentional disregard of the high probability of injury to the plaintiff; or (b) deliberately proceeds to act with indifference to the high probability of injury to the plaintiff" Nebraska punitive damages Miller v. Kingsley, prohibited 230 N.W.2d 472 (Neb. 1975) Nevada clear and convincing "oppression, fraud or malice, express or implied" § 42.005 evidence New Hampshire punitive damages § 507:16 prohibited New Jersey clear and convincing "actuated by actual malice or accompanied by a wanton and § 2A:15-5.12 evidence willful disregard of persons who foreseeably might be harmed" CRS-5 State and Citation Burden of Proof Standard New Mexico preponderance of the "malicious, willful, reckless, wanton, fraudulent or in bad faith" Uniform Jury evidence Instructions -- Civil § 13-1827 United Nuclear Corp. v. Allendale Mut. Ins. Co., 709 P.2d 649 (N.M. 1985) see Randi A.J. v. apparently unsettled "intentional or deliberate wrongdoing, aggravating or Long Island Surgi- outrageous circumstances, fraudulent or evil motive, or Center, 842 conscious act in willful and wanton disregard of another's N.Y.S.2d 558, 568 rights" (2007); Pearlman v. Friedman, Alpern & Green, LLP, 750 N.Y.S.2d 869 (2002) North Carolina clear and convincing "(1) Fraud. (2) Malice. (3) Willful or wanton conduct." § 1D-15 evidence North Dakota clear and convincing "oppression, fraud, or malice, actual or presumed" § 32-03.2-11 evidence Ohio clear and convincing "malice, aggravated or egregious fraud, oppression, or insult" § 2315.21 evidence Oklahoma clear and convincing "reckless disregard" (lower cap) or "intentionally and with T. 23, § 9.1 evidence malice toward others" (higher cap) Oregon punitive damages § 31.740 prohibited Pennsylvania preponderance of the "willful or wanton conduct or reckless indifference to the rights T. 40, § 1303.505 evidence of others" Rhode Island preponderance of the "defendant's actions are so willfull, reckless, or wicked that DelPonte v. Pusyka, evidence they amount to criminality" 615 A.2d 1018 (R.I. 1992) South Carolina clear and convincing "malice, ill will, or conscious indifference to the rights of § 15-33-135; King v. evidence others, or a reckless disregard thereof" Allstate Ins. Co., 251 S.E.2d 194 (S.C. 1979) CRS-6 State and Citation Burden of Proof Standard South Dakota "In any claim alleging A jury, by a preponderance of the evidence, may award punitive § 21-1-4.1 punitive or exemplary damages if it finds "oppression, fraud, or malice, actual or § 21-3-2 damages ... , before any presumed." such claim may be sub- mitted to the trier of fact, "They allege that it would make no sense for a trial court to the court shall find, after a apply the clear and convincing evidence standard in deciding hearing and based upon whether the jury should even be permitted to determine punitive clear and convincing damages, and then turn around and allow the jury to apply a evidence ... willful wanton lesser standard in making such determination. We disagree." or malicious conduct ...." Flockhart v. Wyant, 467 N.W.2d 473, 475 (S.D. 1991) Tennessee clear and convincing "intentional, fraudulent, malicious, or reckless" Hodges v. V.S.C. evidence Toof & Co., 833 S.W.2d 896 (Tenn. 1992) Texas Civil Practice clear and convincing "(1) fraud; (2) malice; or (3) wilful act or omission or gross and Remedies Code evidence neglect in wrongful death actions" § 41.003 Utah clear and convincing "willful and malicious or intentionally fraudulent conduct, or § 78-18-1 evidence conduct that manifests a knowing and reckless indifference toward, and a disregard of, the rights of others" Vermont preponderance of the "conduct manifesting personal ill will, evidencing insult or McCormick v. evidence oppression, or showing a reckless or wanton disregard of [a McCormick, 621 party's] rights" A.2d 238 (Vt. 1993) Virginia clear and convincing "Willful and wanton negligence [which] is defined as acting Owens-Corning evidence consciously in disregard of another person's rights or acting Fiberglas Corp. v. with reckless indifference to the consequences, with the Watson, 413 S.E.2d defendant aware, from his knowledge of existing circumstances 630, 640 (Va. 1992) and conditions, that his conduct probably would cause injury to another" Washington punitive damages Stanard v. Bolin, 565 prohibited P.2d 94 (Wash. 1977) West Virginia preponderance of the "not only mean-spirited conduct, but also extremely negligent TXO Prod. Corp. v. evidence conduct that is likely to cause serious harm" Alliance Resources Group, 419 S.E.2d 870 (W.Va. 1992) CRS-7 State and Citation Burden of Proof Standard Wisconsin "Before the question of "The plaintiff may receive punitive damages if evidence is § 895.85; punitive damages can be submitted showing that the defendant acted maliciously toward City of W. Allis v. submitted to a jury, the the plaintiff or in an intentional disregard of the rights of the Wisc. Elec. Power circuit court must plaintiff." Co., 635 N.W.2d 873 determine ... that to a (Wisc. App. 2001). reasonable certainty the conduct was `outrageous.' ... The evidence must also be `clear and convincing.'" Wyoming preponderance of the "Outrageous conduct, malice, and willful and wanton McCulloh v. Drake, evidence misconduct" 24 P.3d 1162 (Wyo. 2001); Alexander v. Meduna, 47 P.3d 206 (Wyo. 2002) ------------------------------------------------------------------------------ For other versions of this document, see http://wikileaks.org/wiki/CRS-RL31721