02 May Virginia: Medical Malpractice – a Lawyer’s Punitives
In medical malpractice cases, Defendant seek to strike or dismiss punitive damages claims, arguing inter alia that the alleged misconduct was not malicious, intentional, etc. However, the proper focus is not on the highest (or even the higher) levels of scienter that obviously suffice for punitive damages: The sole question is what is the absolute lowest level of scienter for punitive damages.
In 2007, the Virginia Supreme Court answered, reiterating where there is misconduct or “actual malice, or such recklessness or negligence as to evince a conscious disregard of the rights of others.” Hamilton Dev. Co. v. Broad Rock Club, 248 Va. 40, 45, 445 S.E.2d 140, 143 (1994)”. Banks v. Mario Indus. of Virginia, Inc., 274 Va. 438, 460 (2007)(emphasis added)(rejecting defense argument that “punitive damages should not have been awarded because ‘the evidence, as a matter of law, fails to prove malice, willfulness or wantoness’”). Hence the Virginia Supreme Court affirmed punitive damage awards in both Hamilton and Banks. Id.
Banks and Hamilton simply reaffirm the Virginia Supreme Court’s minimum legal threshold for punitive damages stated in its 1967 personal injury case of Giant of Virginia, Inc. v. Pigg, 207 Va. 679, 685 (1967)(emphasis added). Almost 50 years ago, like Hamilton and Banks, Giant held punitive damages allowable against tortfeasors for “such recklessness or negligence as to evince a conscious disregard of the rights of others”.
Further, “punitive damages may be awarded against a corporate employer only if either (1) that employer participated in the wrongful acts giving rise to the punitive damages, or (2) that employer authorized or ratified the wrongful acts giving rise to the punitive damages.” Eagan v. Butler, 290 Va. 62, 74 (2015). Re the first prong, “to subject a corporate employer to punitive damages liability on the basis that the corporate employer itself committed the wrongful acts, the employee must be in a sufficiently high position in the employer’s corporate structure.” Id. at 75.
Numerous Plaintiffs’ medical malpractice complaints have been found to state claims for punitive damages. E.g., Rauchfuss v. Peninsula Radiological Assocs. Ltd., No. CL13-02754V-04(DP), 4/6/16 Order, at 2 (Newport News Apr. 28, 2016)(Pugh, J.); Cherrie v. Virginia Health Servs., Inc., 2016 WL 1558509 (Gloucester Apr. 7, 2016); Peck v. Riverside Hosp., Inc., 2015 WL 8240390 (Newport News Nov. 23, 2015)(Mills, J.); Peck v. Riverside Hosp., Inc., 2015 WL 352508, 2015 Va. Cir. LEXIS 68 (Newport News May 19, 2015)(Conway, J.); Johnson v. The Laurels of Univ. Park, LLC, No. 13-2691, Order (Henrico Apr. 4, 2014); Conrad v. CSP Nova, LLC, No. 13-13209, Order (Fairfax Jan. 10, 2014); Harris v. Med. Facilities of Am., No. CL13-1918 (Roanoke Dec. 12, 2013); Brown v. Seaside Health, No. 12-3734, Order (Virginia Beach Nov. 15, 2012); Cabiness v. Med. Facilities of Am., No. CL10-005, Order (Danville Nov. 1, 2010); Jones-Sewell v. Med. Facilities of Am., No. CL09002810, Order (York Sep. 21, 2010); Cabiness v. Med. Facilities of Am., 80 Va. Cir. 425 (Danville Jun. 21, 2010); Gilliams v. Wray, 79 Va. Cir. 244, 2009 WL 7350235 (Roanoke Sep. 9, 2009); Gray v. Bon Secours, 2006 WL 2021996 (Richmond May 24, 2006); Huffman v. Beverly Cal. Corp., 42 Va. Cir. 205 (Rockingham Apr. 22, 1997); and Andrews v. Gray, No. CL04-3291-00, Order (Radford Feb. 18, 2005). Indeed, during 2013-2014, the Virginia Supreme Court upheld two multi-million dollar jury awards of punitive damages in a medical malpractice lawsuit. Crouse v. Med. Facilities of Am., 86 Va. Cir. 168 (Roanoke Jan. 22, 2013), cert. denied, Record No. (Va. Oct. 2, 2013), reh. denied (Va. Jan. 21, 2014) ($3,000,000.00 and $2,000,000.00 punitive damages jury verdicts upheld by Virginia Supreme Court).
In April, 2015, in another medical malpractice case for a single patient fall before Judge Conway of Newport News, “Defendant Sunny Freeman, R.N.’s Demurrer to Allegations of Willful and Wanton Negligence, Recklessness, and Gross Negligence is DENIED, as there is sufficient foundation for punitive damages if all of the facts in the Amended Complaint are assumed to be correct”. See, Peck v. Riverside Hosp., Inc., 2015 WL 3525083 at *1, 2015 Va. Cir. LEXIS 68 (Newport News May 19, 2015)(Conway, J.)(capitals in original). In November, 2015, Judge Mills of Newport News also upheld Plaintiff’s punitive damages claim: “The Court is satisfied that Plaintiff has sufficiently stated a claim for punitive damages.” Peck v. Riverside Hosp., Inc., 2015 WL 8240390 at *1 (Newport News Nov. 23, 2015)(Mills, J.). In April, 2016, Judge Pugh of Newport News also held in an alleged wrongful death case of delayed communication of cancer diagnosis that Plaintiff “sufficiently alleges a claim for punitive damages against both Defendants, Peninsula Radiological Associates, Ltd. and Benjamin J. Pettus, M.D.”. Rauchfuss v. Peninsula Radiological Assocs., Ltd., No. CL13-02754V-04(DP), 4/6/16 Hr’g Order, at 2 (Newport News Apr. 28, 2016). Additionally, in March, 2016, Judge Shaw of Gloucester ruled in another patient fall case alleging wrongful death that “Plaintiff has met his burden of pleading a claim for punitive damages against Defendants in his Complaint.” Cherrie v. Virginia Health Services, Inc., 2016 WL 1558509 (Gloucester Apr. 7, 2016).