The JSH Reporter JSH Reporter - Fall 2017 | Page 37
PUNITIVE DAMAGES ARTICLE
037
The Court of Appeals reviewed the trial court’s judgment as a
matter of law on punitive damages in a light most favorable to
Mr. Newman, as the standard of review required. The Court of
Appeals’ decision reflected the following facts:
Newman presented evidence [at trial] that the Hospital’s
nurses were aware of Newman’s pressure sore and of the
required courses of treatment for that wound. The Hospital’s
policies and procedures manual required that Newman be
assessed, repositioned, and cleaned several times each day.
Newman’s physician also prescribed a topical medication to
be administered to Newman’s pressure sore twice each day.
Moreover, Hospital staff testified that they were aware of the
required treatment for Newman’s sore and were aware that
failure to uphold the treatment standards risked severely
exacerbating Newman’s condition. See Newman, 239 Ariz.
at 562, ¶ 14 (emphasis added).
Mr. Newman had also presented evidence at trial that his
medical chart lacked documentation of wound assessment over
a twelve-day period. Id. ¶ 15. Likewise, over an eight-day period,
Mr. Newma n’s chart contained no documentation indicating
that the Hospital’s nurses applied prescribed topical medication
to Mr. Newman’s wound. Id. Additionally, one of the Hospital’s
nurses testified at trial that the failure to chart assessments
and application of prescribed topical medication should have
prompted an investigation into whether Mr. Newman was
receiving appropriate and prescribed care. Id. at 562-63, ¶ 15.
The Court of Appeals held that, based on the above-mentioned
circumstantial evidence presented at trial, the jury could have
inferred that the Hospital consciously disregarded a known risk
of substantial harm to Mr. Newman. Id. at 563, ¶ 16. Accordingly,
the Court reversed and remanded the trial court’s ruling on
punitive damages. Id. at 567, ¶ 43.
Newman Appears to Have Lowered the
Standard of Proof for a Plaintiff to Present
Punitive Damages to a Jury
Punitive damages require “clear and convincing” evidence of a
very particular mental state – an “evil mind” – and aggravated
and outrageous conduct that evinces a conscious disregard for a
known risk of harm. Because of this high burden of proof, claims
of entitlement to punitive damages have typically been disposed
of through dispositive motions, never reaching a jury.
The Newman Court did not reference evidence, through
testimony or otherwise, that the Hospital’s nurses actually failed
to provide prescribed care and treatment; the only evidence
was that the staff failed to document the care. Although lack of
documentation may constitute circumstantial evidence, which a
jury may weigh under a preponderance of evidence standard of
statutory abuse and neglect pursuant to the APSA, it does not,
on its own, constitute clear and convincing evidence that the
prescribed care and treatment was not provided. Thus, the Court
of Appeals ruling in Newman has arguably made it much easier
for Plaintiffs to present punitive damages to a jury.
Moving Forward – Practical
Considerations
The Newman decision does not alter the evidentiary standard
a jury must apply when determining recoverability of punitive
damages. Indeed, both the legal standard and the Revised
Arizona Jury Instruction on punitive damages remain unchanged
and still require clear and convincing evidence that a Defendant
acted with an evil mind. However, Newman will likely make it
more difficult for Defendants to dispose of punitive damages
claims on pre-trial motions. Consequently, punitive damages
claims are now more likely to reach a jury. Plaintiffs will
accordingly have the opportunity to rely on a potential punitive
damages award to increase leverage at pre-trial mediations. In
certain cases, the cost of settlement may rise and the risk of a
punitive damages award at trial may increase.
Plaintiffs’ lawyers’ age-old cry of “if it wasn’t documented, it
didn’t happen” may be inaccurate, but it is now likely to get
punitive damages to a jury. This applies to medical negligence
cases, including actions against hospitals and nursing homes,
where the failure to document care that was actually provided
may preclude summary judgment on punitive damages. It
likewise applies to service industries, like trucking, which involve
mandated documentation of adherence to safety standards prior
to performing services.
The Arizona Supreme Court recently declined to review the
Newman decision, which stands. To limit the potential for a
Plaintiff to present punitive damages to a jury, prospective
Defendants should educate their staff on the importance of
accurate and careful documentation. Prospective Defendants
should also monitor documentation and, when necessary,
immediately address and correct any failures to perform
important tasks.
ABOUT THE AUTHOR KENNETH MOSKOW
Ken focuses his practice in the areas of medical malpractice and nursing home defense,
Section 1983 defense, wrongful death and personal injury defense, premises liability
defense, and transportation defense.
602.263.1722 | [email protected]