Punitive Damages in Medical Malpractice Actions: Burden of Proof and Standards for Awards in the Fifty States
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
In troduction ......................................................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.
Chart
Burden of ProofStandard
abama,clear and convincing“the defendant consciously or deliberately engaged in
askaclear and convincing“defendant’s conduct (1) was outrageous, including acts done
evidencewith malice or bad motives; or (2) evidenced reckless
indifference to the interest of another person”
onaclear and convincingdefendant engaged in “reprehensible conduct” and acted “with
cquisitionevidencean evil mind”
,
.
kansasclear and convincing“defendant knew or should have known ... that his or her
55-206;evidenceconduct would naturally and probably result in injury or damage
55-207and 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.”
ilclear and convincing“oppression, fraud, or malice”
evidence
oradobeyond a reasonable doubt“fraud, malice, or willful and wanton conduct”
64-302.5
preponderance of the“a reckless indifference to the rights of others or an intentional
evidenceand wanton violation of those rights.”
,
Sorrentino v.
,
lawarepreponderance of the“injury complained of was maliciously intended or was the
18, § 6855evidenceresult of wilful or wanton misconduct by the health care
provider”
biaclear and convincing“egregious conduct”; “malice or its equivalent”
, 766evidence
Croley
., 759 A.2d
punitive damages
prohibited
Burden of ProofStandard
iaclear and convincing“willful misconduct, malice, fraud, wantonness, oppression, or
12-5.1evidencethat entire want of care which would raise the presumption of
conscious indifference to consequences”
waiiclear and convincing“defendant has acted wantonly or oppressively or with such
evidencemalice as implies a spirit of mischief or criminal indifference to
,civil obligations, or where there has been some wilful
misconduct or that entire want of care which would raise the
presumption of conscious indifference to the consequences”
aho preponderance of the“oppressive, fraudulent, wanton, malicious or outrageous
accruing after 7/1/03, clear
and convincing evidence
punitive damages
LCS 5/2-1115prohibited
clear and convincingdefendant “acted with malice, fraud, gross negligence, or
51-3-2; USAevidenceoppressiveness which was not the result of a mistake of fact or
law, honest error or judgment, overzealousness, mere
,negligence, or other human failing”
nd.
wa “preponderance of clear,“willful and wanton disregard for the rights or safety of
convincing, andanother”
satisfactory evidence”
sasclear and convincing“willful conduct, wanton conduct, fraud or malice”
3701evidence
entuckyclear and convincing“oppression, fraud or malice”
evidence
punitive damages
prohibited
p., 935 F. Supp.
clear and convincingMalice, either express (where the defendant “is motivated by ill
evidencewill toward the plaintiff”), or implied (defendant’s conduct “is
deral Creditso outrageous that malice toward a person injured as a result of
that conduct can be implied.”) Implied malice is not established
“by the defendant’s mere reckless disregard of the
New York, 818circumstances.”
ised 2003)
landclear and convincing“evil motive, intent to injure, or fraud”
evidence
, 601 A.2d
Burden of ProofStandard
preponderance of the“malicious, willful, wanton or reckless conduct . . . or gross
evidence in wrong deathnegligence”
,stcases; punitive damages
Cir.otherwise prohibited
anpreponderance of the“defendant commits a voluntary act which inspires feeling of
evidencehumiliation, outrage, and indignity”
,
clear and convincing“deliberate disregard for the rights or safety of others”
evidence
clear and convincing“actual malice, gross negligence which evidences a willful,
1-65(1)(a)evidencewanton or reckless disregard for the safety of others, or
committed actual fraud”
clear and convincing“conduct that is outrageous, because of the defendant’s evil
evidencemotive or reckless indifference to the rights of others”
, 81
clear and convincingdefendant “has knowledge of facts or intentionally disregards
(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”
braskapunitive damages
i ngsley , prohibited
vadaclear and convincing“oppression, fraud or malice, express or implied”
evidence
w Hampshirepunitive damages
prohibited
w Jerseyclear and convincing“actuated by actual malice or accompanied by a wanton and
Burden of ProofStandard
w Mexicopreponderance of the“malicious, willful, reckless, wanton, fraudulent or in bad faith”
form Juryevidence
structions — Civil
1827
ited Nuclear
o., 709
Randi A.J. v.apparently unsettled“intentional or deliberate wrongdoing, aggravating or
outrageous circumstances, fraudulent or evil motive, or
nter, 842conscious act in willful and wanton disregard of another’s
rights”
Pearlman v.
, 750
rth Carolinaclear and convincing“(1) Fraud. (2) Malice. (3) Willful or wanton conduct.”
15evidence
th Dakotaclear and convincing“oppression, fraud, or malice, actual or presumed”
03.2-11evidence
oclear and convincing“malice, aggravated or egregious fraud, oppression, or insult”
evidence
lahomaclear and convincing“reckless disregard” (lower cap) or “intentionally and with
egonpunitive damages
prohibited
lvaniapreponderance of the“willful or wanton conduct or reckless indifference to the rights
slandpreponderance of the“defendant’s actions are so willfull, reckless, or wicked that
lPonte v. Pusyka,evidencethey amount to criminality”
.
clear and convincing“malice, ill will, or conscious indifference to the rights of
o., 251
Burden of ProofStandard
ota “In any claim allegingA jury, by a preponderance of the evidence, may award punitive
1-4.1punitive or exemplarydamages if it finds “oppression, fraud, or malice, actual or
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 aapply the clear and convincing evidence standard in deciding
hearing and based uponwhether the jury should even be permitted to determine punitive
clear and convincingdamages, and then turn around and allow the jury to apply a
evidence ... willful wantonlesser standard in making such determination. We disagree.”
or malicious conduct ....”Flockhart v. Wyant, 467 N.W.2d 473, 475 (S.D. 1991)
nnesseeclear and convincing“intentional, fraudulent, malicious, or reckless”
evidence
Co., 833
enn.
ivil Practiceclear and convincing“(1) fraud; (2) malice; or (3) wilful act or omission or gross
edies Codeevidenceneglect in wrongful death actions”
ahclear and convincing“willful and malicious or intentionally fraudulent conduct, or
18-1evidenceconduct that manifests a knowing and reckless indifference
toward, and a disregard of, the rights of others”
ermontpreponderance of the“conduct manifesting personal ill will, evidencing insult or
ormick v.evidenceoppression, or showing a reckless or wanton disregard of [a
ormick, 621party’s] rights”
t. 1993)
iniaclear and convincing“Willful and wanton negligence [which] is defined as acting
ens-Corningevidenceconsciously in disregard of another person’s rights or acting
orp. v.with reckless indifference to the consequences, with the
tson, 413 S.E.2ddefendant aware, from his knowledge of existing circumstances
a. 1992)and conditions, that his conduct probably would cause injury to
another”
tonpunitive damages
, 565prohibited
iniapreponderance of the“not only mean-spirited conduct, but also extremely negligent
evidenceconduct that is likely to cause serious harm”
, 419 S.E.2d
a. 1992)
Burden of ProofStandard
“Before the question of“The plaintiff may receive punitive damages if evidence is
punitive damages can be submitted showing that the defendant acted maliciously toward
. Allis v.submitted to a jury, thethe plaintiff or in an intentional disregard of the rights of the
isc. Elec. Powercircuit court mustplaintiff.”
, 635 N.W.2d 873determine ... that to a
reasonable certainty the
conduct was ‘outrageous.’
... The evidence must also
be ‘clear and convincing.’”
omingpreponderance of the“Outrageous conduct, malice, and willful and wanton
, evidence mi sconduct”
o.
, 47 P.3d 206
o. 2002)