In the majority of successful medical malpractice lawsuits, the bulk of damages awarded will be compensatory. That means they are intended to compensate the patient for the losses they have incurred, such as pain and suffering, medical bills, lost wages and more. The intention is to “make whole” the patient once again – to whatever extent that is possible – following the doctor’s negligent actions. doctor

In some situations, punitive damages may be appropriate. Punitive damages are paid to the patient, but they are intended to punish the defendant for egregious wrongdoing. Punitive damages typically won’t be awarded unless a patient can show the doctor engaged in behavior that was especially reckless or intentional. That can be very difficult to prove in these cases, but it’s not impossible. An example might be a physician with a struggling practice who treats a patient in a way that will require extensive follow-up treatment/ procedures that otherwise would be unnecessary. In that instance, it’s not simply a mistake – it’s intentional harm. Punitive damages send a clear message to other health care providers: They will pay a steep price for being reckless or putting profits before the well-being of patients.

In the recent case of McColl v. Lang, plaintiff sought to hold a health care provider accountable for causing an infected, third-degree burn on her nose after she underwent a treatment that involved use of a black salve to treat a blemish.

According to court records from the Montana Supreme Court, defendant is a licensed naturopathic doctor. Plaintiff visited defendant for a thyroid problem and also to talk about a blemish on her nose and her desire to have it removed. The physician applied a “black salve,” which was an escharotic agent. He sent her back home with instructions for care and to return for a follow-up. At the follow-up visit, defendant applied more of the salve to plaintiff’s nose.

A few days later, she rushed to a local urgent care center for pain, swelling and burning of her nose. She was treated for an infected, third-degree burn on her nose. Because it ultimately left a large, unsightly scar on her nose, she underwent plastic surgery. In order to remain scar-free, plaintiff has to undergo surgical injections every six months.

Plaintiff sued her doctor for medical malpractice, alleging the salve was not an approved drug and its marketing violated federal law and that the U.S. Food & Drug Administration (FDA) had four years earlier identified it as a phony cancer cure. Consumers were warned not to use it. Defendant argued the FDA’s warnings were prejudicial because the allegation in the complaint centered on the practice of medical care – not the marketing, manufacturing or sale of the medical product. What’s more, defendant never claimed he was curing cancer. The court agreed to exclude evidence of the FDA warning.

However, the court did not exclude plaintiff’s expert witness.

At trial, jurors found the doctor had deviated from the applicable standard of care. Jurors awarded $140,000 in damages, plus costs, for a total of $145,000.

Plaintiff appealed on grounds the court improperly denied the FDA evidence, which resulted in a rejection of her punitive damage award request. She asked for a new trial based on the punitive damage award issue.

The Montana Supreme Court affirmed, finding trial court did not abuse its discretion in excluding the FDA evidence and the denial of punitive damages was proper.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

McColl v. Lang, Oct. 11, 2016, Montana Supreme Court

More Blog Entries:

In re Estate of Woody v. Big Horn County – State Supreme Court Reverses Rejection of Wrongful Death Lawsuit, Aug. 19, 2016, Miami Medical Malpractice Lawyer Blog