January 2013 Punitive Damages Update

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By decision dated November 8, 2012, the Fourth Department has affirmed an Allegany County Supreme Court holding that the plaintiff’s claim for punitive damages against a “physician,” in a medical malpractice action, may be submitted to a jury.  It is rare indeed for a plaintiff to be able to seek punitive damages in a medical malpractice action.  In fact there are only a handful of appellate cases in New York where the issue has been allowed to be submitted to a jury.  In this case, however, the Court found unique facts to allow the matter to proceed to trial.

Jeffrey A. Black of Dwyer, Black & Lyle, LLP successfully argued to the Court that the unique facts of this case warranted that the issue be submitted to a jury.  As a matter of background, 6 year old Tucker Watson was taken to Jones Memorial Hospital by his father on the evening of March 1, 2009 with flu-like symptoms, primarily consisting of diarrhea.  He was seen and treated by Fitzgerald Hudson who held himself out as an emergency room physician.  The child was given promethazine for his symptoms.  Such medication is contraindicated for children, especially children suffering from respiratory problems.  Although Hudson knew that the child suffered from asthma and sleep apnea he still administered the medication.  Within hours of returning home, Tucker went into respiratory distress and died.

The family later learned that Fitzgerald Hudson had fraudulently obtained a medical license.  According to the Office of Professional Misconduct (read the opinion here), in his licensing application he either omitted certain facts or listed false statements including the fact that he never obtained a Bachelor of Science degree and had been fired from a prior residency training program for incompetence.  In addition, he was found to have been grossly negligent and grossly incompetent in his treatment of other patients and was found to have committed fraud in obtaining his medical license and privileges at various hospitals.  Since that time he has also been indicted by a federal grand jury for numerous fraud charges and his bail has recently been revoked (see Department of Justice press release here).

Under this unique circumstance the Fourth Department held that plaintiff’s allegations were sufficient to state a claim for punitive damages.  The Court reasoned that such damages are available “where the wrong complained of is morally culpable, or is actuated by evil and reprehensible motives, not only to punish the defendant but to deter him, as well as others who might otherwise be so prompted, from indulging in similar conduct in the future.”  To read the full opinion please click here.