Recent Decision Helps Providers Fight Punitive Damages Claims

Published on: 1/06/2005

January 6, 2005

A punitive damages claim is often the "salt in the wound" for physicians and other healthcare providers in malpractice cases. Reading allegations of "willful recklessness" and "conscious disregard for safety" can inflame anyone charged with protecting patients. In addition, punitive damages claims are rarely covered by insurance. It is no wonder that these claims are often seen as a personal attack on the provider.


Recently, the United States District Court for the Eastern District of Virginia reiterated the Virginia rule that punitive damages are recoverable only in rare instances when the facts show not just negligence, or even gross negligence, but "reckless indifference" to the well-being of others.


In Blakely v. Austin-Weston Center for Cosmetic Surgery , a plastic surgeon erroneously administered undiluted epinephrine to a patient rather than a post-operative anti-nausea drug, anzemet. The mistake occurred when the physician pulled a single-use ampule which he presumed was anzemet from a locked medications cart. The physician conceded that he was negligent in failing to read the label before administering the drug. Significantly, three months prior to this incident, two other patients were hospitalized after they were administered epinephrine instead of the anesthetizing agent decadron. An investigation concluded that the multi-use vials of epinephrine and decadron were similar, resulting in a nurse or technician mistaking the two. In response, the surgical facility implemented several policy changes including the conversion to single-use vials of epinephrine, directing that epinephrine be stored in a locked medications cart, and requiring that physicians directly administer or directly supervise the administration of medications. The recent prior incidents of misuse of epinephrine served as the basis for the punitive damages claim.


Citing past opinions of the Supreme Court of Virginia, the federal court noted that even the complete neglect of a patient's safety at best amounts only to gross negligence, rather than the "willful recklessness" required for punitive damages. In other words, before a plaintiff will be entitled to punitive damages, the patient must show that a physician had "knowledge and consciousness" that his or her actions would likely cause harm yet nevertheless acted consciously, willfully or with reckless indifference to that risk.


Blakely argued that the recent history of other cases of mistaken administration of epinephrine established that the physician consciously disregarded a similar risk to her. The Court disagreed, finding that the circumstances surrounding the earlier incidents were not sufficiently similar to the facts in Blakely's case to raise an inference that the physician consciously disregarded a risk that a known harm would be repeated. Distinguishing the earlier cases from Blakely's, the Court highlighted that Blakely's case "involved a different drug, a different person, a different size vial, and a different storage location." This distinction is significant. As the Court noted


      If [the surgeon] could be held liable for willful and wanton conduct in this

      case, then any member of a clinic or hospital would be subject to punitive

      damages if a single employee had previously failed to read a label and

      administered the wrong medication, no matter the circumstances. Such an

      expansive definition is inconsistent with the "heavy burden" placed on

      plaintiffs in Virginia to prove punitive damages.


Blakely also sought punitive damages against the surgical facility claiming that the facility failed to communicate its new policies to employees because the facility was unable to produce a written policy or any documents showing the policy was implemented. The Court held that to survive summary judgment, Blakely had an affirmative duty to show the policy did not exist and could not simply argue that the absence of a written policy meant no policy existed at all. The Court also rejected Blakely's argument that the new policies were deficient, noting that the facility's implementation of new policies clearly showed an attempt to avoid future injury to patients. The Court held that the question of whether the new policies were sufficient to prevent further harm was an issue of simple negligence, not reckless indifference.


The Blakely decision will be an effective tool for challenging punitive damages claims both pretrial and at trial, particularly in federal courts where summary judgment rules are more permissive.