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 | kmoskow@jshfirm.com