You know that you can be sued for negligence, and you assume that your professional liability insurance will indemnify you for any losses suffered as a result. This is generally a correct assumption. The question that sometimes arises is this: suppose the plaintiff is also seeking punitive damages; are these judgments covered as well? The answer to this question is, generally, no. It is rare that punitive damages are ever awarded in medical malpractice actions and even rarer that they are upheld on appeal, but it does happen. Johannesen v Salem Hospital , 82 P.3d 139 (Ore. 2003), gives us a good overview concerning the issue of punitive damages and the elements a plaintiff must prove to be successful in having them awarded.
The patient sought treatment from the defendant obstetrics-gynecology practitioner. Complications developed, and the defendant by all accounts essentially missed the boat by not providing the required care in a timely fashion. He went on a 2-week vacation during a period when the patient needed his attention without providing for substituted coverage; he decreased the amount of monitoring the patient received in contravention to good and accepted practice; he misdiagnosed her condition; he then treated her for the wrong condition; he did not recognize that the patient was becoming comatose; and, even though he ultimately performed the C-section that was required, the patient unfortunately expired. Naturally, the patient’s spouse sued, and, after settling with the hospital and the anesthesiologist, he sought to amend the original complaint against the doctor to include punitive damages. The trial court refused to allow punitive damages to be asserted, and this appeal ensued.
In fashioning its decision, the Supreme Court first looked at the governing statute, ORS 18.550, that provides in part that “Punitive damages shall not be awarded against a health practitioner if (g) (2), The health practitioner was engaged in conduct regulated by the license, registration or certificate issued by the appropriate governing body and was acting within the scope of practice for which the license, registration or certificate was issued, and without malice.”
The defendant argued that a claim for punitive damages should not be allowed because the plaintiff presented no evidence that the defendant acted with malice. Obviously, the next step was to look at the definition of malice, which is defined as follows: “In civil cases malice has been held to mean the intentional doing of an injurious act without justification or excuse. A tort committed with a bad motive or so recklessly as to be in disregard of social obligations, or an act wantonly, maliciously or wickedly done, is such a malicious act as authorizes the award of punitive damages” (cit. omit.).
The court reviewed the record and found that the plaintiff had presented affidavits that the nursing staff, as per the doctor’s orders, acted with aggravated disregard for their professional duties in that they failed to object to the doctor’s orders; they failed to recognize certain deleterious clinical conditions; they failed to request proper medications that were indicated; they failed to insist on timely interventional treatment; and, finally, they generally failed in their obligation to advocate for the patient to ensure her safety, which in the constellation of findings showed an outrageous indifference to the patient’s health and safety. The court noted that such evidence could have allowed a jury to conclude that the defendant acted with malice. The court further stated that, under the laws of vicarious liability, “If the servant has committed a tort within the scope of his employment so as to render the [master] liable for compensatory damages, and if the servant’s act is such as to render him liable for punitive damages, then the [master] is likewise liable for punitive damages.” The court reversed the trial court, allowed the plaintiff to seek punitive damages against the defendant, and remanded the case for a new trial.
So, what constitutes malice? Simply put, it is acting with reckless disregard, as opposed to simply being negligent or blatantly disregarding the patient’s welfare when the appropriate course of conduct is obvious. How can we relate this to orthodontics? Take, for instance, the situation of an adult patient with obvious periodontal disease. The general dentist or periodontist has recommended interventional therapy, and you ignore the recommendation and immediately proceed with orthodontic therapy. Another situation could be when you are treating an adolescent with poor oral hygiene; you note this for 6 visits running on the patient’s chart, along with notations that you spoke to Mom and also communicated your concerns to the GP. You also note in the patient’s chart that you can’t be responsible for any negative sequelae that develop; yet you continue to treat the patient without appliance removal or referral to the dentist.
Another scenario might be when you have a patient with an ectopically erupting canine. The root of the adjacent permanent lateral incisor exhibits slight root resorption. You don’t recommend extraction of the deciduous tooth, you don’t monitor the patient radiographically, you don’t make any referrals, and you do nothing except proceed with orthodontic therapy. These acts could be construed by a jury to rise beyond negligence and be interpreted that the practitioner engaged in conduct that recklessly disregarded the patient’s welfare.
It’s one thing if you don’t recognize a problem; that’s just simple negligence. It’s something else to recognize a clinical situation that could injure a patient and then disregard it. It’s one thing to see a negative sequela developing, assess its severity, and make a judgment call to wait and watch. However, it is something quite different to rearrange the deck chairs on the Titanic as it’s going down. Patients often don’t know when the environment surrounding their orthodontic care has changed for the worse. They depend on us to inform them and act appropriately. It is one thing for us to miss whatever the danger is and to make a mistake. In reality, that’s why we carry malpractice insurance—to indemnify us for negligent omissions or commissions. It’s something else to blatantly ignore signs and symptoms that, if permitted to go unchecked, can cause great harm to the patient. It is these other scenarios that allow someone to view certain activities or inactivities, as the case may be, as malice. Remember, perception is reality, and what and how a jury perceives a certain situation might make the difference as to who writes the check.
There is one more issue that needs to be discussed. The court addressed it in the context of the master-servant relationship. Many of us use the services of expanded-duty auxiliaries. They allow us to be very productive, often treating over 100 patients per day. Just remember that you are responsible for your employees’ acts. If they engage in malicious acts—acts that exhibit wanton disregard for a patient’s welfare, over and above what would be considered merely negligent treatment—you can be held responsible for the damages from those acts. As such, you will pay, often dearly, for the disregard exhibited to the patient. What are some examples of these wanton acts? Ignoring patient complaints that are repeated and never addressed could be an example. Ignoring some of the pathologies, particularly when brought to our attention, that on occasion clinically manifest themselves, could be viewed as another. Not monitoring the progress of our patient ministrations over several sequential appointments when we had the duty to do so could also be construed as another.
Ignoring unpleasantries in the hope that they will go away might work in certain aspects of our lives. In the provision of health care services, such ostrich-like tendencies don’t serve us well and actually could serve to our extreme detriment. Our malpractice insurance won’t indemnify us for punitive damages if they are awarded. One reason is that acts like these are deemed to be intentional rather than negligent. Another reason is that to some extent the damages are preventable if appropriate care had been rendered. Remember, punitive damages are designed to punish the person who acted out of malice or with wanton disregard. These damages are exemplary, since they are designed to also warn others not to engage in similar activities. The courts will not allow third parties to indemnify those found liable for engaging in such conduct because it defeats these purposes. If you act with malice, you personally will pay for it.