Sometimes potential clients tell me they want to file a lawsuit in order to punish a health care provider. I usually explain to them that, under Washington law, we do not have what are called “punitive damages,” which means that juries can only award “compensatory damages.” Washington is one of only six states that do not allow punitive damage awards.
With compensatory damages, no matter how bad or egregious the medical negligence, theoretically it doesn’t change the nature and amount of the damages that can be awarded. I use the word “theoretically” because, to some extent, the nature and severity of the negligent care can impact a jury’s calculation of the damages caused by that conduct.
Compensatory damages are intended solely to compensate the claimant. Included are both economic and non-economic damages (the old terms were “special” and “general” damages). Economic damages can include medical expenses, lost wages or lost earning capacity, and other similar measurable economic impact on the claimant. Non-Economic damages can include pain and suffering, emotional distress, and non-economic impact on the life of the claimant. Again, those damages are to be awarded if such damages were the result of the negligence, regardless of how serious the negligence might be.
In a few situations, however, the laws of another state may be applicable to a claim, such as when the harm is caused by a multi-state medical entity and the laws of the state where that entity is located provide for punitive damages. The Washington court may then apply that state’s specific punitive damages law to the claim being presented in Washington. Each state’s punitive damage laws are different, but in each case the claimant must prove that the conduct in question was willful and had the potential to cause substantial harm. Some states allow unlimited awards, but they are intended to reflect both the severity of the conduct and the amount of harm that might be caused. In addition, in most cases they are intended to both punish bad behavior but also to encourage a change in that behavior.
In states that allow punitive damages, they are rarely awarded in medical malpractice cases. In a famous non-medical case involving a spill of McDonald’s coffee, the jury awarded punitive damages measured by one day’s profits of McDonald’s coffee sales. This is because the jury heard testimony about the company deliberately selling coffee at an extremely unsafe temperature, and discussing how any injuries are more than made up for by increased coffee sales when patrons know they can take it home with them and it will still be hot when it is consumed.
