LITIGATION AND LEGISLATION

Punitive damages in malpractice lawsuits

Laurance JerroldJacksonville, Fla

You know that you can be sued for negligence,and you assume that your professional liabilityinsurance will indemnify you for any losses suf-

fered as a result. This is generally a correct assumption.The question that sometimes arises is this: suppose theplaintiff is also seeking punitive damages; are thesejudgments covered as well? The answer to this questionis, generally, no. It is rare that punitive damages are everawarded in medical malpractice actions and even rarerthat they are upheld on appeal, but it does happen.Johannesen v Salem Hospital, 82 P.3d 139 (Ore.2003), gives us a good overview concerning the issueof punitive damages and the elements a plaintiff mustprove to be successful in having them awarded.

The patient sought treatment from the defendantobstetrics-gynecology practitioner. Complications de-veloped, and the defendant by all accounts essentiallymissed the boat by not providing the required care ina timely fashion. He went on a 2-week vacation duringa period when the patient needed his attention withoutproviding for substituted coverage; he decreased theamount of monitoring the patient received in contraven-tion to good and accepted practice; he misdiagnosed hercondition; he then treated her for the wrong condition;he did not recognize that the patient was becomingcomatose; and, even though he ultimately performedthe C-section that was required, the patient unfortu-nately expired. Naturally, the patient’s spouse sued,and, after settling with the hospital and the anesthesiol-ogist, he sought to amend the original complaint againstthe doctor to include punitive damages. The trial courtrefused to allow punitive damages to be asserted, andthis appeal ensued.

In fashioning its decision, the Supreme Court firstlooked at the governing statute, ORS 18.550, that pro-vides in part that “Punitive damages shall not beawarded against a health practitioner if (g) (2), Thehealth practitioner was engaged in conduct regulatedby the license, registration or certificate issued by the

President, Orthodontic Consulting Group, LLC., Jacksonville, Fla.Am J Orthod Dentofacial Orthop 2011;139:569-700889-5406/$36.00Copyright � 2011 by the American Association of Orthodontists.doi:10.1016/j.ajodo.2010.09.006

appropriate governing body and was acting within thescope of practice for which the license, registration orcertificate was issued, and without malice.”

The defendant argued that a claim for punitivedamages should not be allowed because the plaintiffpresented no evidence that the defendant acted withmalice. Obviously, the next step was to look at thedefinition of malice, which is defined as follows: “In civilcases malice has been held to mean the intentional doingof an injurious act without justification or excuse. A tortcommitted with a bad motive or so recklessly as to be indisregard of social obligations, or an act wantonly,maliciously or wickedly done, is such a malicious act asauthorizes the award of punitive damages” (cit. omit.).

The court reviewed the record and found that theplaintiff had presented affidavits that the nursing staff,as per the doctor’s orders, acted with aggravated disregardfor their professional duties in that they failed to object tothe doctor’s orders; they failed to recognize certain dele-terious clinical conditions; they failed to request propermedications that were indicated; they failed to insist ontimely interventional treatment; and, finally, they gener-ally failed in their obligation to advocate for the patientto ensure her safety, which in the constellation of findingsshowed an outrageous indifference to the patient’s healthand safety. The court noted that such evidence could haveallowed a jury to conclude that the defendant acted withmalice. The court further stated that, under the laws ofvicarious liability, “If the servant has committed a tortwithin the scope of his employment so as to render the[master] liable for compensatory damages, and if theservant’s act is such as to render him liable for punitivedamages, then the [master] is likewise liable for punitivedamages.” The court reversed the trial court, allowed theplaintiff to seek punitive damages against the defendant,and remanded the case for a new trial.

COMMENTARY

So, what constitutes malice? Simply put, it is actingwith reckless disregard, as opposed to simply being neg-ligent or blatantly disregarding the patient’s welfarewhen the appropriate course of conduct is obvious.How can we relate this to orthodontics? Take, for in-stance, the situation of an adult patient with obviousperiodontal disease. The general dentist or periodontist

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has recommended interventional therapy, and youignore the recommendation and immediately proceedwith orthodontic therapy. Another situation could bewhen you are treating an adolescent with poor oral hy-giene; you note this for 6 visits running on the patient’schart, along with notations that you spoke to Mom andalso communicated your concerns to the GP. You alsonote in the patient’s chart that you can’t be responsiblefor any negative sequelae that develop; yet you continueto treat the patient without appliance removal or referralto the dentist.

Another scenario might be when you have a patientwith an ectopically erupting canine. The root of theadjacent permanent lateral incisor exhibits slight rootresorption. You don’t recommend extraction of the decid-uous tooth, you don’t monitor the patient radiographi-cally, you don’t make any referrals, and you do nothingexcept proceedwith orthodontic therapy. These acts couldbe construed by a jury to rise beyond negligence and beinterpreted that the practitioner engaged in conductthat recklessly disregarded the patient’s welfare.

It’s one thing if you don’t recognize a problem; that’sjust simple negligence. It’s something else to recognizea clinical situation that could injure a patient and thendisregard it. It’s one thing to see a negative sequela de-veloping, assess its severity, and make a judgment call towait and watch. However, it is something quite differentto rearrange the deck chairs on the Titanic as it’s goingdown. Patients often don’t know when the environmentsurrounding their orthodontic care has changed for theworse. They depend on us to inform them and act appro-priately. It is one thing for us to miss whatever the dan-ger is and to make a mistake. In reality, that’s why wecarry malpractice insurance—to indemnify us for negli-gent omissions or commissions. It’s something else toblatantly ignore signs and symptoms that, if permittedto go unchecked, can cause great harm to the patient.It is these other scenarios that allow someone to viewcertain activities or inactivities, as the case may be, asmalice. Remember, perception is reality, and what and

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how a jury perceives a certain situation might makethe difference as to who writes the check.

There is one more issue that needs to be discussed.The court addressed it in the context of the master-servant relationship. Many of us use the services ofexpanded-duty auxiliaries. They allow us to be very pro-ductive, often treating over 100 patients per day. Justremember that you are responsible for your employees’acts. If they engage in malicious acts—acts that exhibitwanton disregard for a patient’s welfare, over and abovewhat would be considered merely negligent treatment—you can be held responsible for the damages from thoseacts. As such, you will pay, often dearly, for the disregardexhibited to the patient. What are some examples ofthese wanton acts? Ignoring patient complaints thatare repeated and never addressed could be an example.Ignoring some of the pathologies, particularly whenbrought to our attention, that on occasion clinicallymanifest themselves, could be viewed as another. Notmonitoring the progress of our patient ministrationsover several sequential appointments when we had theduty to do so could also be construed as another.

Ignoring unpleasantries in the hope that they will goaway might work in certain aspects of our lives. In theprovision of health care services, such ostrich-like ten-dencies don’t serve us well and actually could serve toour extreme detriment. Our malpractice insurancewon’t indemnify us for punitive damages if they areawarded. One reason is that acts like these are deemedto be intentional rather than negligent. Another reasonis that to some extent the damages are preventable ifappropriate care had been rendered. Remember, punitivedamages are designed to punish the person who actedout of malice or with wanton disregard. These damagesare exemplary, since they are designed to also warnothers not to engage in similar activities. The courtswill not allow third parties to indemnify those foundliable for engaging in such conduct because it defeatsthese purposes. If you act with malice, you personallywill pay for it.

Journal of Orthodontics and Dentofacial Orthopedics