November 7, 2003 |
2003-R-0743 | |
PUNITIVE DAMAGE AWARDS, CAPS, AND STANDARDS | ||
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By: Paul Shearer, Research Fellow | ||
You asked what states allow punitive damages in medical malpractice actions, how much is awarded, and under what standards.
SUMMARY
Forty-three states, including Connecticut, plus the District of Columbia, allow punitive damages in medical malpractice actions. Five jurisdictions prohibit punitive damages for all civil actions. Two states, Illinois and Oregon, prohibit punitive damages in medical malpractice actions or against specific types of health care providers.
Half of the jurisdictions allowing punitive damages do not place any limit on punitive damage awards (Table 1). These jurisdictions include Arizona, Kentucky and Wyoming, which prohibit limitations of any damages awards through their state constitutions. Ten of the remaining 22 jurisdictions, Table 2, limiting punitive damage awards use the greater of a definite sum or a multiple of the compensatory damage award as a cap. Colorado limits punitive damages to the amount of compensatory damages. Connecticut limits punitive damages to the litigation costs, including reasonable attorney fees. Georgia, Maine and Virginia set a maximum award amount. Finally, Kansas, Mississippi and Montana link the amount to a percentage of the defendant's finances; for instance, gross income, net worth, profit or financial gain from the transaction. Seven jurisdictions employ a step system, with the
maximum punitive damages allowable depending on the severity of the defendant's conduct. While many jurisdictions utilize only one of these techniques, several employ a variety of these techniques.
Generally, in jurisdictions allowing punitive damages, plaintiffs must persuade the jury by clear and convincing evidence. However, some jurisdictions allow persuasion by a preponderance of the evidence. Finally, Colorado requires persuasion beyond a reasonable doubt for punitive damages.
To receive punitive damages, a plaintiff must show that the defendant's conduct was worse than negligent. Conduct justifying punitive damages represents conduct that the public policy of a state finds reprehensible, typically an intentional act or one with reckless indifference to the rights of others.
In preparing this report, we relied on two papers authored by Henry Cohen, Legislative Attorney in the American Law Division of the Congressional Research Service, Medical Malpractice Liability Reform: Legal Issues and Fifty-State Survey of Caps on Punitive Damages and Noneconomic Damages, and Punitive Damages in Medical Malpractice Actions: Burden of Proof and Standards for Awards in the Fifty States. We also obtained information from the National Conference of State Legislatures (NCSL).
STANDARDS USED TO AWARD PUNITIVE DAMAGES
Burden of Persuasion
Before a jury may consider the issue of punitive damages, a plaintiff must meet its burden of persuasion. Most states require clear and convincing evidence, which shows a high probability or a reasonable certainty that the plaintiff's version is factual.
Those jurisdictions using the minority rule, including Connecticut, use a preponderance of the evidence standard which means it is more likely than not, generally 50.1%, that the defendant acted in a manner deserving punitive damages. This is also the standard generally applied in civil litigation, with clear and convincing evidence being a higher burden of persuasion but less than the criminal law standard of beyond a reasonable doubt.
There is currently one state that applies the criminal law standard in judging whether to award punitive damages, Colorado. This burden requires that there must not be any reasonable doubt of a defendant's liability for the jury. This is the most stringent of the burden of persuasion standards.
Severity of Conduct
In addition to meeting the requisite burden of persuasion, plaintiffs must also prove that the defendants performed some reprehensible act justifying punitive damages. Generally, the law requires some form of intentional or indifferent act. Specifically, the conduct deserving punitive damages includes fraud; the intentional misrepresentation of the truth or the concealment of a major fact causing another to act to their injury (Black's Law Dictionary, 7th Ed.). In addition, conduct that is reckless; unreasonably risky without care for the risk to others, malicious; intending to harm another without reason or justification, justifies punitive damages. Other severe conduct is wanton and willful. Wanton conduct is the unreasonable or malicious risk of harm without a care for the consequences. Willful conduct, on the other hand, represents conduct that is not necessarily malicious, yet voluntarily and intentionally performed. Connecticut requires a reckless indifference to the rights of another or the intentional and wanton violation of those rights.
A few jurisdictions allow punitive damages for oppressive and grossly negligent conduct. Oppressive conduct involves an unjust use of authority or power. The gross negligence standard requires not following the most basic procedures, and therefore is not as high a standard as those standards such as wanton, willful, malicious, oppressive, or fraudulent.
Table 1 consists of those states allowing punitive damages yet do not have a system in place to limit the monetary amount of punitive damages. It shows each state's authority for punitive damages, the requisite burden of persuasion and standard of conduct and any relevant Constitutional provisions affecting the construction of a punitive damage limitation framework.
Table 1: States Allowing Punitive Damages Without Limitation
State |
Authority |
Burden of Persuasion |
Standard of Conduct |
Constitutional Authority |
Arizona |
Medasys Acquisituib Corp. v SDMS, P.C., 55 P.2d 763 (Ariz.2002) |
Clear and convincing evidence |
“Reprehensible conduct” acting “with an evil mind.” |
Ariz. Const. Art. 2, § 31, “No law shall be enacted limiting the amount of damages to be recovered for causing the death or injury to another.” |
California * |
Cal. Civ. Code § 3294(a) |
Clear and convincing evidence |
Oppressive conduct, fraud or malice towards the plaintiff. |
|
Delaware |
Del. Code Ann. tit. 18, § 6855 |
Preponderance of the evidence |
Malicious intent or willful or wanton misconduct by the health care provider |
None |
District of Columbia |
Railan v. Katyal 766 A.2d 998, 1012 (D.C. 2001); Croley v. Republican Nat'l Comm., 759 A.2d 682, 695 (D.C. 2000) |
Clear and convincing evidence |
“Egregious conduct”; “malice or its equivalent” |
None |
Hawaii |
Dairy Road Partners v. Island Ins. Co., 992 P.2d 93 (Haw. 2000) |
Clear and convincing evidence |
Wanton, oppressive or malicious conduct, implying harmful or indifferent spirit, or willful misconduct raising presumption of conscious indifference. |
None |
Iowa |
Iowa Code § 668A.1 |
Preponderance of clear, convincing and satisfactory evidence” |
Willful and wanton disregard for the rights of another and whether specifically aimed the conduct at the injured. |
None |
Kentucky |
Ky. Rev. Stat. Ann. § 411.184 |
Clear and convincing evidence |
Oppression, fraud, or malice |
Ky Const. § 54, “The General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death or for injuries to person or property.” |
Maryland |
Owens-Illinois, Inc. v. Zenobia, 601 A.2d 633 (Md. 1992) |
Clear and convincing evidence |
Evil motive, intent to injure or fraud. |
None |
Massachusetts ** |
Mass. Gen. Laws ch. 229, § 2; Caperci v. Hutoon, 397 F.2d 799 (1st Cir. 1968) |
Punitive damages prohibited, except in wrongful death cases. |
Malicious, willful, wanton or reckless conduct… or gross negligence” |
|
Minnesota |
Minn. Stat. § 549.20 |
Clear and convincing evidence |
Deliberate disregard for the rights of others. Knowledge or intentional disregard showing a high probability of injury and a conscious act or disregard of this probability or indifference. |
None |
Missouri |
Altenhofen v. Fabricor, Inc., 81 S.W.3d 578,590 (Mo. App. 2002) |
Clear and convincing evidence |
Outrageous conduct demonstrating an “evil motive” or reckless indifference. |
None |
New Mexico |
Unif. Jury Inst.- Civ. § 13-1827; United Nuclear Corp. v. Allendales Mut. Ins. Co., 709 P.2d 649 (N.M. 1985) |
Preponderance of the evidence |
Malice, willful, wanton, fraudulent, reckless, or in bad faith. |
None |
New York |
Anderson v. Fortune Brands, Inc., 723 N.Y.S.2d 304 (2000); Pearlman v. Friedman, Alpern & Green, LLP, 750 N.Y.S.2d 869 (2002) |
Clear and convincing evidence |
Intentional act, aggravating injuries, Outrageous conduct, fraud, “evil motive”, and willful and wanton disregard for the rights of another. |
None |
Ohio |
Ohio Rev. Code §2315.21 |
Clear and convincing evidence |
“malice, aggravated or egregious fraud, oppression or insult” |
None |
Rhode Island |
DelPonte v. Puskya, 615 A.2d 1018 (R.I. 1992) |
Preponderance of the evidence |
Willful, reckless or wicked manner that amounts to criminality. |
None |
South Carolina |
S.C. Code § 15-33-135; King v. Allstate Ins. Co., 251 S.E.2d 194 (S.C. 1979) |
Clear and convincing evidence |
malice, ill will, or conscious indifference, or a reckless disregard. |
None |
South Dakota |
S.D. Codified Laws § 21-1-4.1, § 21-3-2 |
Clear and convincing evidence |
Oppression, fraud, willful wanton or malicious conduct |
None |
Tennessee |
Hodges v. V.S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992) |
Clear and convincing evidence |
“intentional , fraudulent, malicious or reckless” |
None |
Utah |
Utah Code Ann. § 78-18-1 |
Clear and convincing evidence |
Willful, malicious or intentionally fraudulent or reckless indifference toward the rights of others. |
None |
Vermont |
McCormick v. McCormick, 621 A.2d 238 (Vt. 1993) |
Preponderance of the evidence |
ill will, evidencing insult or oppression or a reckless or wanton disregard of the rights of another. |
None |
West Virginia |
TXO Prod. Corp. v. Alliance Resources Group, 419 S.E. 2d 870 (W. Va. 1992) |
Preponderance of the evidence |
Not only mean spirited conduct but also extremely negligent conduct that is likely to cause serious harm. |
None |
Wyoming |
McCulloh v. Drake, 24 P.3d 1162 (Wyo. 2001); Alexander v. Meduna, 47 P.3d 206 (Wyo. 2002) |
Preponderance of the evidence |
Outrageous conduct, malice and willful and wanton misconduct. |
Wyo. Const. Art.10 § 4, “No law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person.” |
* California courts have held that the limits on non-economic malpractice damages do not prevent the awarding of punitive damages. Baker v. Sadick, 208 Cal.Rptr.676, (App.4.Dist. 1984). | ||||
** Mass. Gen. Laws ch. 229, § 2, Greater than $5,000 in wrongful death cases. No other punitive damages authorized. | ||||
Table 2 shows those states with punitive damage monetary limitations. This table shows the authority for awarding punitive damages, the burden of persuasion and standard of conduct needed to award punitive damages. Finally, the table provides the authority and the relevant structure of the punitive damages limitation for each state.
Table 2: States Allowing Punitive Damages With Limits
State |
Authority |
Burden of Persuasion |
Standard of Conduct |
Limit: Authority |
Structure of Limitation |
Alabama |
Ala. Code § 6-11-20 |
Clear and convincing evidence |
Conscious, or deliberate engagement in oppressive, fraudulent, wanton or malicious conduct. |
Ala. Code § 6-11-21 |
Three times compensatory damages or $500,000, whichever is greater (1.5 million for physical injury), except, if defendant is small business (net worth < $2 million) then cap is $50,000 or 10% of the business' net worth. No caps in wrongful death or intentional infliction of physical injury. |
Alaska |
Alaska Stat. § 09.17.020 |
Clear and convincing evidence |
Outrageous conduct, including malice or bad motive, or reckless indifference to the interest of another. |
Alaska Stat. § 09.17. 020 |
Shall not exceed 3 times compensatory damages or $500,000. If financial motive and knew of this outcome prior to the conduct then may award the greater of up to 4 times compensatory damages, 4 times aggregate financial gain or $7,000,000. |
Arkansas |
Ark. Code § 16-55-206; 207 |
Clear and convincing evidence |
Compensatory damages and know or ought to know the injury results; continuing with malice, reckless indifference or intent to injure. |
Ark. Code § 16-55-208; |
No more than the greater of $250,000 or three (3) times the amount of compensatory damages, capped at $1,000,000. Exception, if the fact finder determines that defendant meant to cause the harm and did cause the harm, then the cap is not applicable. |
Colorado |
Colo. Rev. Stat. § 13-64-302.5; § 13-25-127(2) |
Beyond a reasonable doubt |
Colo. Rev. Stat. § 13-21-102, Fraud, malice or willful or wanton conduct. |
Colo. Rev. Stat. § 13-21-102; --§ 13-64-302.5 (4)(b); (5); (6) |
No greater than actual damages, may increase punitive award if this conduct continued, or intentional aggravation during the pendancy of the action. Limitations by reference to 13-21-102 (1)(a); -- Not allowed for normally accepted or approved use of approved drugs or clinically justified non-standard uses, within prudent health care standards, and written informed consent. |
Connecticut |
Freeman v. Alamo Management Co., 607 A.2d 370 (Conn. 1992); Sorrentino v. All Seasons Servs., 717 A.2d 150 (Conn. 1998) |
Preponderance of the evidence |
Reckless indifference to the rights of other; intentional and wanton violation of those rights. |
Berry v. Loiseau, 223 Conn. 786 (1992) |
Punitive damages are limited to the actual cost of the litigation, including attorney's fees. |
Florida |
Fla. Stat. § 768.725; 768.72 |
Clear and convincing evidence for entitlement to award; preponderance for the amount |
Intentional misconduct or gross negligence. |
Fla Stat. § 768.73 |
Greater of three times compensatory damages or $500,000. If supervisor ratified, then greater of four times compensatory damages or $2,000,000. If specific intent to harm, no cap. |
Georgia |
Ga. Code Ann. § 51-12-5.1. |
Clear and convincing evidence |
Willful misconduct, malice, fraud, wantonness, oppression or conscious indifference. |
Ga. Code Ann. § 51-12-5.1 |
May not exceed $250,000; If acted or failed to act with intent to harm, or under the influence of drugs and alcohol not prescribed or intentionally consumed toxic vapors causing impairment, then no limitation to the amount. |
Idaho |
Idaho Code § 6-1604, as amended by 2003 Session Laws, Ch. 122. |
Preponderance of the evidence; for actions accruing after 7/1/03, clear and convincing. |
Oppression, fraud, malice or outrageous conduct; before, 7/1/03 included wanton conduct. |
Idaho Code § 6-1604(3) |
May not exceed the greater of $250,000 or three times the compensatory damages award. |
Indiana |
Ind. Code § 34-51-3-2; USA Life One Ins. Co. of Indiana v. Nuckolls, 682 N.E.2d 534 (Ind. 1997) |
Clear and convincing evidence |
Fraud, malice, gross negligence or oppressiveness |
Ind. Code § 34-51-3-4; § 34-18-14-3 |
May not exceed the greater of three times the compensatory award or $50,000.; Total amount recoverable $500,000, $750,000, or $1,250,000 date act occurred. |
Kansas |
Kan. Stat. Ann. § 60-3701 |
Clear and convincing evidence |
Wanton, willful, fraudulent or malicious conduct. |
Kan. Stat. Ann. § 60-3702 |
May not exceed the lesser of defendants highest annual gross income from any of the prior 5 years unless the court deems inadequate, then may award up to 50% of net worth or $5,000,000. If court finds profits exceeds or should exceed these limits, then award may be up to 1.5 times of the profit. |
Maine |
St.Francis de Sales Federal Credit Union v. Sun Ins. Co. of New York, 802 A.2d 982 (Me. 2002) |
Clear and convincing evidence |
Either express (motivated by ill will) or implied (outrageous conduct implying ill will ) malice. Implied malice is not a … “mere reckless disregard of the circumstances.” |
Me. Rev. Stat. Ann. tit. 18-A, § 2-804(b) |
$75,000 for wrongful death actions. |
Michigan |
Jackson Printing Co., Inc. v. Mitan, 425 N.W.2d 791 (Mich. 1988) |
Preponderance of the evidence |
A voluntary act which humiliates, outrages and indignifies the recipient. |
Jackson Printing Co, Inc. v. Mitan, 425 N.W.2d 791 (Mich. 1988) |
“The purpose of exemplary damages is not to punish the defendant, but to render the plaintiff whole. When compensatory damages can make the injured party whole, exemplary damages must not be awarded.” |
Mississippi |
Miss. Code Ann. § 11-1-65 |
Clear and convincing evidence |
Actual malice; gross negligence evidencing willful; wanton or reckless disregard; fraud |
Miss. Code Ann. § 11-1-65 |
$20 million if defendants net worth > $1 billion; $15 million if > $750 million but is not > $1 billion; $10 million if > $500 million but < $750 million; 7 1/2 million if > $100 million; $5 million if > $50 million. 4% of net worth if < $50 million or less. |
Montana |
Mont. Code Ann. § 27-1-220 |
Clear and convincing evidence |
Knowledge of or disregard creating a high probability of injury and conscious or intent to disregard; or deliberate indifference to this probability. |
Mont. Code Ann. § 27-1-220 |
Punitive damages may not exceed the lesser of $10,000,000 or 3% of the defendants net worth. |
Nevada |
Nev. Rev. Stat. § 42.005 |
Clear and convincing evidence |
“Oppression, fraud or malice, express or implied” |
Nev. Rev. Stat. § 42.005 |
3 times compensatory damages if $100,000 or more; $300,000 if less. |
New Jersey |
N.J. Rev. Stat. Ann. § 2A:15-5.12 |
Clear and convincing evidence |
Malice or a wanton and willful disregard of persons possibly harmed. |
N.J. Rev. Stat. Ann. § 2A:15-5.14 |
Greater of five times compensatory damages or $350,000. |
North Carolina |
N.C. Gen Stat. 1D-15 |
Clear and convincing evidence |
Injury aggravated by fraud, malice or willful or wanton conduct |
N.C. Gen Stat. 1D-25 |
May not exceed three times the compensatory award or $250,000 whichever is greater. |
North Dakota |
N.D. Cent. Code § 32-03.2-11 |
Clear and convincing evidence |
“oppression, fraud or malice, actual or presumed” |
N.D. Cent. Code § 32-03.2-11(4) |
Greater of 2 times compensatory damages or $250,000. |
Oklahoma |
Okla. Stat. Tit. 23, § 9.1 |
Preponderance of the evidence |
“reckless disregard” (lower cap) or “intentionally and with malice toward others” (higher cap) |
Okla. Stat. Tit. 23, § 9.1 |
Reckless disregard -greater of $100,000 or actual damages. Intentional and with malice -greatest of $500,000 or twice actual damages, or financial benefit by defendant. Beyond a reasonable doubt conduct threatened a human life -no cap. |
Pennsylvania |
40 Pa. Cons. Stat. § 1301.812-A |
Preponderance of the evidence |
Willful or wanton conduct; reckless indifference. |
40 Pa. Cons. Stat. § 1301.812-A (g) |
Shall not exceed 200% of the compensatory damages unless intentional misconduct. In all cases, unless a lower verdict, not less than $100,000. |
Texas |
Civ. Prac. and. Rem. Code § 41.003 |
Clear and convincing evidence |
Fraud, malice, willful act or omission or gross negligence (wrongful death actions). |
Civ. Prac. and Rem. Code § 41.008 |
The cap is the greater of, $200,000 or the award for non-economic damages up to $ 750,000 plus twice the award for economic damages. |
Virginia |
Owens-Corning Fiberglas Corp. v. Watson, 413 S.E.2d 630, 640 (Va. 1992) |
Clear and convincing evidence |
Willful and wanton negligence; conscious disregard; reckless indifference; or being aware, of the probability of physical injury |
§ 8.01-38.1 |
Maximum cap of $350,000 |
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