Punitive Damages in NY Medical Malpractice Cases are Available Under More Circumstances Than You Might Think
A few years after I became involved with plaintiff’s medical malpractice work, I was presented with a case that involved a very difficult decision. Should I take a case that had what I considered to be grossly negligent conduct on the part of medical providers, even though it involved the death of widower with fully emancipated children who was terminally ill with cancer, and there had been a relatively short amount of time between the grossly negligent acts and his death?
I will save a full discussion of New York’s arcane, discriminatory rules for recovery in wrongful death cases for another post, but the short description is that New York allows two types of compensatory recovery, called economic and non-economic damages. Economic damages are things like lost wages, medical expenses, and the loss of monetary support and guidance a child suffers when a parent dies. Non-economic damages are mainly for the pain and suffering endured by the person who died. Although there is no formula for calculating non-economic damages, juries tend to look at the length of time a person suffered when determining the appropriate amount to allocate for this category.
Therefore, in the case described above I could only really look to something called “punitive damages” – a type of damages many New York medical malpractice lawyers often write off because they can be extremely challenging to pursue – to bring about a meaningful recovery for the grossly negligent conduct that killed my client. I decided to give it a try because the conduct was too egregious to overlook. This decision resulted in several motions being heard in Supreme Court along with an appeal and years of litigation, but it ended up helping to shape the legal standard for punitive damages under New York law.
Marsh v. Arnot Ogden Medical Center
Here are the general facts of my case:
Leslie Marshall, 69, suffered from terminal lung cancer, and died of profound hypoglycemia due to an insulin overdose approximately twelve hours after a nurse injected him with 15 units of Levemir – a long-lasting insulin reducing drug for which he was not prescribed. After the injection, both the nurse and his on-call doctor failed to take any steps to make sure Leslie’s glucose levels were monitored throughout the night, and the hospital failed to provide the nurse with adequate guidance and training after she committed a medication error two months prior to injecting Leslie. Finally, none of the defendants made any notations whatsoever in decedent’s medical chart regarding the injection until almost four (4) months after decedent’s death.
Upholding our claim for punitive damages after defendants moved to dismiss it, the Third Department stated in Marsh v. Arnot Ogden Medical Center, 91 A.D.3d 1070 (2012), that punitive damages are available when the defendant’s conduct evinces “a reckless indifference equivalent to willful or intentional misdoing” or a “wanton and reckless disregard of [a] plaintiff’s rights,” though “[a] showing of malice or wrongful intent is not required” (Id.).
In other words, the Third Department stated that in order to recover punitive damages, recklessness alone is not enough. The reckless conduct must be so egregious that it is the equivalent of, i.e. synonymous with, willful or intentional misdoing.
Dupree v. Giugliano
About nine months after Marsh was handed down, the Court of Appeals decided another a medical malpractice case in which the plaintiff sought punitive damages.
In Dupree v. Giugliano, 20 N.Y.3d 921 (2012), plaintiff argued she was entitled to punitive damages because, after seeking and obtaining treatment from her primary care doctor for mental health issues, she and the doctor became involved in a sexual relationship for about a year. Relying on expert testimony concerning “eroticized transference phenomenon,” a medical phenomenon in which a patient experiences near psychotic attraction to a treating physician, plaintiff claimed defendant’s actions caused her to suffer mental distress, endure a costly divorce, and lose her husband’s marital services (Id. at 923).
Although the jury agreed punitive damages were warranted and the Second Department upheld the award, (see Dupree v. Giugliano, 87 A.D.3d 975 ), the Court of Appeals found the trial court improperly instructed the jury on punitive damages because it only charged regular recklessness (see Dupree v. Giugliano, 23 Misc. 3d 1110, (A), describing the standard the Trial Court used as just “recklessness”). Clarifying the standard, the Court of Appeals held that in order to sustain a punitive claim:
There must be aggravation or outrage, such as spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called willful or wanton.
Dupree, 20 N.Y.3d at 924 (emphasis added).
The Court ultimately found plaintiff failed to meet the heightened recklessness standard because the record lacked evidence that defendant willfully caused plaintiff’s so-called “transference” of harm (Id.).
When reviewing Marsh and Dupree side-by-side, it becomes clear that Dupree did not make any substantive changes to the standard for awarding punitive damages in a New York medical malpractice action applied in Marsh:
Moreover, the New York’s Pattern Jury Instructions suggested charge on punitive damages states “[a]n act is wanton and reckless when it demonstrates conscious indifference and utter disregard of its effect upon the health, safety and rights of others” (N.Y. Pattern Jury Instr. – Civil 2:278). Reading the holdings in Marsh and Dupree together with the PJI definition of recklessness, it is impossible to identify any grounds for distinguishing the two standards other than simple word choice.
Finally, it is notable that in Dupree, the only decision the Court of Appeals overturned was that of Dupree’s trial court. The Court neither cited to Marsh nor the many cases referred to by the Third Department in the Marsh decision, lending further support to the argument that Dupree should not be read to have any sort of negative impact on the holding in Marsh.
Punitive Damages and the Medical Malpractice Claim
In 2015, the New York Law Journal published an article that provides an in-depth look at the holding in Dupree, as well as explicit and detailed comparison to the holding in Marsh (see John L.A. Lyddane and Barbara D. Goldberg, Punitive Damages and the Medical Malpractice Claim, NYLJ, Jan. 21, 2015).
Written by Attorneys John Lyddane and Barbara Goldberg, two downstate medical malpractice defense attorneys, the article offers a side-by-side comparison of Dupree and Marsh, attempting to parse out the rationale underlying each decision and providing a useful tool when attempting to understand the recent developments in New York punitive damages law since the Third Department decided Marsh.
With respect to Dupree, the authors suggest the Court of Appeals did not vacate plaintiff’s claim because the standard for awarding punitive damages had changed. Instead, they believe the claim failed because there was no proof the defendant acted with conscious disregard of the likelihood harm would result, i.e. the doctor did not consciously disregard the likelihood that having sex with his patient would cause her to develop a near psychotic attraction to him leading to divorce (Id. at 2).
Specifically, the authors state:
While the conduct at issue – the adulterous relationship between doctor and patient – was certainly a conscious and deliberate choice on the defendant’s part, that was not sufficient because the defendant did not deliberately cause or act in conscious disregard of the likelihood of the resulting harm. Nor was it sufficient that the defendant’s conduct might appear morally or ethically objectionable or even “morally reprehensible,” as the applicable standard has sometimes been phrased.
It appears that under Dupree, the appropriate focus is not on the morality of the defendant’s conduct per se, but on the likely consequences of that conduct and whether the defendant acted willfully or deliberately in causing the patient’s injury or with reckless indifference to or disregard of the likelihood of injury.
The authors conclude their analysis of Dupree by reiterating the standard for claiming punitive damages in a medical malpractice action:
[I]t is clear from Dupree that punitive damages are not appropriate unless the defendant willfully caused the injury at issue, or acted with conscious or reckless disregard of the patient’s well-being and the likelihood of injury.
(Id. at 4).
Turning toward Marsh, the authors state that although claims for punitive damages in New York medical malpractice cases are very rare, “the extreme level of conduct necessary to support such a claim is demonstrated by” the conduct of Nurse Wizeman, Dr. Abderhalden-Friend and AOMC (Id. at 3). Reflecting on this “extreme” behavior, the authors caution that “[s]ince the conduct at issue in a given case in unlikely to be as egregious as the conduct alleged in Marsh, a comparison with the facts of Marsh will often support an argument for dismissal or withdrawal of a punitive damages claim” (Id.).
Carefully reviewing the facts, the authors observe:
Marsh is instructive in that the conduct alleged against the nurse and physician so far surpassed ordinary malpractice and negligence that its almost willful nature would likely be apparent even to a layperson. A layperson could conclude without the necessity of expert testimony that a failure to determine whether a potentially harmful medication had been ordered for a patient constituted reckless indifference to the patient’s well-being – particularly if, as was alleged in Marsh, the nurse was specifically advised that the patient was not a diabetic and did not take insulin.
Similarly, a lay jury could conclude that the doctor acted with reckless indifference in failing to ensure that any measures were in place to monitor the decedent’s condition after she instructed the staff to discontinue glucose monitoring, and that this was tantamount to abandonment of a patient, which, historically has been one of the few bases upon which the courts have allowed punitive damage claims in medical malpractice actions to advance.
Subsequent New York Cases
New York Courts have considered the standard numerous times since Marsh and Dupree in non-medical malpractice cases. Two of them, described before, help to further clarify the punitive damages standard.
Marinaccio v. Town of Clarence
In early 2013, about a year after Dupree was decided, the Court of Appeals considered a case where plaintiffs asserted a claim for punitive damages because defendants allegedly diverted storm water onto plaintiff’s property (see Marinaccio v. Town of Clarence, 20 N.Y.3d 506 (2013).
A review of its holding shows the decision does not change the standard set forth in Marsh or Dupree at all. To the contrary, though it ultimately held plaintiff was not entitled to punitive damages, the Marinaccio Court reiterated the Dupree standard verbatim, stating:
Because the standard for imposing punitive damages is a strict one and punitive damages will be awarded only in exceptional cases, the conduct justifying such an award must manifest “spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called willful or wanton” (Dupree v. Giugliano, 20 N.Y.3d 921, 924,  [citation and internal quotation marks omitted]).
As conceded by plaintiff, the trial court correctly charged the jury that punitive damages may only be awarded if defendant’s acts were, “wanton and reckless or malicious. Punitive damages may be awarded for conduct that represents a high degree of immorality and shows such wanton dishonesty as to imply a criminal indifference to civil obligations.”
(Id. at 511).
Georgitsi Realty, LLC v. Penn-Star Ins. Co.
The Court Appeals issued a third post-Marsh decision regarding punitive damages a few months after deciding Marinaccio. In Georgitsi Realty, LLC v Penn-Star Ins. Co., 21 N.Y.3d 606 (2013), the Court, answering questions certified to it by the United States Court of Appeals for the Second Circuit, considered a vandalism case in which the plaintiff made a claim for punitive damages.
Specifically, the Second Department asked the Court of Appeals to define “malice” in the context of a property damage case where a punitive award is sought. In answering, the Court looked directly to its development of the punitive damage law in medical malpractice cases, and, relying on its holdings in both Dupree and Marinaccio, defined “malice” as reflects “such a conscious and deliberate disregard of the interests of others that [it] may be called willful or wanton.” (Id. at 611-612). Indeed, the Court opined:
In common speech, and by the express terms of the policy in suit, vandalism is “malicious” damage to property. The Second Circuit’s second question asks, in essence, what state of mind amounts to “malice” for these purposes. We answer by adopting, insofar as it relates to property damage, the formulation we have used in reviewing awards of punitive damages.
Conduct is “malicious” for these purposes when it reflects “such a conscious and deliberate disregard of the interests of others that [it] may be called willful or wanton” (Marinaccio v. Town of Clarence, 20 N.Y.3d 506, 511, , quoting Dupree v. Giugliano, 20 N.Y.3d 921, 924 ; see also Prozeralik v. Capital Cities Communications, 82 N.Y.2d 466, 479, 605 N.Y.S.2d 218, 626 N.E.2d 34 ; Carvel Corp. v. Noonan, 350 F.3d 6, 24 [2d Cir.2003]; Prosser & Keeton, Torts § 2 at 9 [5th ed. 1984]).
As such, insofar as a plaintiff must show proof of malice to recover punitive damages in a medical malpractice action, it is clear the Court of Appeals defines malicious conduct in that context as “such a conscious and deliberate disregard of the interests of others that it may be called willful or wanton” – the precise standard developed in Marsh and articulated in Dupree.
Other New York cases decided since the Third Department ruled in Marsh
Several other New York courts have discussed the standard for awarding punitive damages in medical malpractice actions since 2012. Each has adopted the Marsh and Dupree approach – with one decision even citing to both cases in its holding. This continuity lends even greater support to plaintiff’s position that Dupree did not change the punitive damages standard for medical malpractice cases in any way:
The standard for an award of punitive damages in a medical malpractice action “is that a defendant manifest evil or malicious conduct beyond any breach of professional duty” (Dupree v. Giugliano, 982 N.E.2d 74, 76, [N.Y.3d 2012]). Further, “[t]here must be aggravation or outrage, such as spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called willful or wanton.” Id.
- Khasidy v. Dovlatyah, 43 Misc. 3d 1224(A) (Sup. Ct. Kings Co. 2014)
The standard for imposing punitive damages is a strict one and punitive damages will be awarded only in exceptional cases, the conduct justifying such an award must manifest “spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called willful or wanton” (Dupree v. Giugliano, 20 N.Y.3d 921, 924 ).
- Shirley Elfie Life Trust v. Pinkesz, 44 Misc. 3d 1226(A) (Sup. Ct. Kings Co. 2014)
Punitive damages will generally result only where a defendant’s conduct manifests “spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called willful or wanton” (Marinaccio v. Town of Clarence, 20 N.Y.3d 506, 511 , quoting Dupree v. Giugliano, 20 N.Y.3d 921, 924 ).
- Newman v. 911 Alwyn Owners Corp., 47 Misc. 3d 1213(A) (Sup. Ct. N.Y. Co. 2015)
There must be conduct manifesting “spite or malice, or fraudulent or evil motive on the part of the defendant or such a conscious and deliberate disregard of the interests of others that the conduct may be called willful or wanton.” Marinaccio v. Town of Clarence, 20 N.Y.3d 506, 511 (2013), quoting Dupree v. Giugliano, 20 N.Y.3d 921, 924 (2012); see Walker v. Sheldon, 10 N.Y.2d 401, 404 (1961).
- D’Alessandro v. Nassau Health Care Corp., 47 Misc 3d 1219(A) (Sup. Ct. Nassau Co. 2015)
“The standard for an award of punitive damages is that a defendant manifest evil or malicious conduct beyond any breach of professional duty” (Dupree v. Giugliano, 20 NY3d 921, 924 ). “There must be aggravation or outrage, such as spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called willful or wanton (quotations omitted)” (Dupree v. Giugliano, supra at 921). See, Marsh v. Arnot Ogden Medical Center, 91 A.D.3d 1070 (3d Dept. 2012) (“[w]illful failure to disclose pertinent medical information” and “[a] medical facility’s failure to provide appropriate safety precautions and training” may provide grounds for punitive damages).
New York’s Pattern Jury Instructions
New York’s Pattern Jury Instructions also define the standard for awarding punitive damages in a medical malpractice case using the precise language the Court of Appeals set forth in Dupree and its progeny:
[T]he conduct justifying an award of punitive damages must manifest spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called willful or wanton, Marinaccio v Clarence, supra, Dupree v Giugliano, supra.
N.Y. Pattern Jury Instr. – Civil 2:278.
Marsh v. Arnot Ogden Medical Center, Take #2
Finally, in 2015, the Chemung County Supreme Court revisited the Third Department’s initial ruling, along with the ruling in Dupree, held that:
[T]here is nothing in Dupree that changes the legal standard for an award of such damages. Likewise, the Court’s ruling does not reference or otherwise overrule the Appellate Division’s decision in Marsh.
Putting it All Together
In sum, the legal standard that should be used is the same as the one used by the Third Department in Marsh, regardless of whether language from Marsh or Dupree is used.
- Using the Marsh language: Does the defendants’ conduct evince a reckless indifference equivalent to willful or intentional misdoing or a wanton and reckless disregard of a plaintiff’s rights?
- Using the Dupree language: Did the defendants act with such a conscious and deliberate disregard of the interests of others that their conduct may be called willful or wanton?
In terms of whether defendants acted with malice, the sole question, nearly identical to the inquiry under Dupree, is:
- Under Georgitsi Realty, citing Dupree: Did the defendants’ conduct reflect such a conscious and deliberate disregard of the interests of others that [it] may be called willful or wanton.
I will revisit this topic again in the future as the law continues to develop.
Thanks for reading!
Christina Bruner Sonsire, Esq.
NY & PA Injury & Malpractice Lawyer
Ziff Law Firm, LLP
303 William Street
Elmira, New York 14902-1338