Punitive damage awards come up only occasionally in medical malpractice cases because punitive damages are only awarded to “penalize, punish, or deter” a defendant. Doctors are typically trying to help but make mistakes out of ignorance, fatigue, or even sloth – and are financially held to account for these kinds of mistakes when they cause injury – but rarely do doctors do something they should be punished for. The typical situation in which punitive damages might be awarded would be a surgeon who injures a patient while performing an operation under the influence of alcohol or drugs. But, these cases are uncommon. Rarer still would be a doctor who deliberately harmed a patient for some crazed personal reason. More commonly, punitive damages come up in product liability cases because it is not hard to imagine a company cutting corners when it comes to safety, in order to fatten its bottom line. Rightly or wrongly, I’m pretty sure some business executives will do unethical things in their business life that they would never dream of doing in their personal life.
Perhaps because punitive-damage cases are infrequent, state and federal governments have acted like these cases should be their personal play things. Georgia has taken an interesting approach, for example, by confiscating 75% of any punitive damages awarded in a product-liability case. Other states cap punitive damages. Even the U.S. Supreme Court has declared that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” In other words, if a punitive-damages award exceeds 9 times the actual damages, it’ll probably be deemed unconstitutional.
This past week, a Richmond, Virginia federal jury awarded Douglas M. Ray, a retired engineer, $12 million in compensatory damages and $200 million in punitive damages. The jury agreed that Ray, 67, suffered disability and permanent brain damage when, in 2007, he was given Botox injections, off-label, for hand tremors; the manufacturer of Botox had not warned about this potential side effect.
Here’s the kicker: Allergan, the manufacturer of Botox, hasn’t decided whether to appeal. Not appeal a $212 million verdict? Has the manufacturer lost its senses? No. You see, the Commonwealth of Virginia caps punitive damages at $250, 000. Thus, the verdict is really only $12.25 million and Mr. Ray’s disability could make Allergan consider that it got off easy.
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