In some situations, punitive damages may be appropriate. Punitive damages are paid to the patient, but they are intended to punish the defendant for egregious wrongdoing. Punitive damages typically won’t be awarded unless a patient can show the doctor engaged in behavior that was especially reckless or intentional. That can be very difficult to prove in these cases, but it’s not impossible. An example might be a physician with a struggling practice who treats a patient in a way that will require extensive follow-up treatment/ procedures that otherwise would be unnecessary. In that instance, it’s not simply a mistake – it’s intentional harm. Punitive damages send a clear message to other health care providers: They will pay a steep price for being reckless or putting profits before the well-being of patients.

In the recent case of McColl v. Lang, plaintiff sought to hold a health care provider accountable for causing an infected, third-degree burn on her nose after she underwent a treatment that involved use of a black salve to treat a blemish.

According to court records from the Montana Supreme Court, defendant is a licensed naturopathic doctor. Plaintiff visited defendant for a thyroid problem and also to talk about a blemish on her nose and her desire to have it removed. The physician applied a “black salve,” which was an escharotic agent. He sent her back home with instructions for care and to return for a follow-up. At the follow-up visit, defendant applied more of the salve to plaintiff’s nose.

A few days later, she rushed to a local urgent care center for pain, swelling and burning of her nose. She was treated for an infected, third-degree burn on her nose. Because it ultimately left a large, unsightly scar on her nose, she underwent plastic surgery. In order to remain scar-free, plaintiff has to undergo surgical injections every six months.

Plaintiff sued her doctor for medical malpractice, alleging the salve was not an approved drug and its marketing violated federal law and that the U.S. Food & Drug Administration (FDA) had four years earlier identified it as a phony cancer cure. Consumers were warned not to use it. Defendant argued the FDA’s warnings were prejudicial because the allegation in the complaint centered on the practice of medical care – not the marketing, manufacturing or sale of the medical product. What’s more, defendant never claimed he was curing cancer. The court agreed to exclude evidence of the FDA warning.

However, the court did not exclude plaintiff’s expert witness.

At trial, jurors found the doctor had deviated from the applicable standard of care. Jurors awarded $140,000 in damages, plus costs, for a total of $145,000.

Plaintiff appealed on grounds the court improperly denied the FDA evidence, which resulted in a rejection of her punitive damage award request. She asked for a new trial based on the punitive damage award issue.

The Montana Supreme Court affirmed, finding trial court did not abuse its discretion in excluding the FDA evidence and the denial of punitive damages was proper.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

McColl v. Lang, Oct. 11, 2016, Montana Supreme Court

More Blog Entries:

In re Estate of Woody v. Big Horn County – State Supreme Court Reverses Rejection of Wrongful Death Lawsuit, Aug. 19, 2016, Miami Medical Malpractice Lawyer Blog

The case of In re Estate of Woody v. Big Horn County, stems from the December 2011 death of 21-year-old Kenneth “Kenny” Woody IV. He was a passenger in a vehicle driven by a 23-year-old friend of Woody’s. That man, Dustin Wegner, was already on probation for an earlier DUI in which four people had been injured. A sheriff’s deputy reportedly spotted the vehicle and attempted to initiate a traffic stop. But Wegner didn’t pull over. Instead, he fled and a chase ensued, with both vehicles reaching speeds in excess of 100 mph, according to The Billings Gazette.

Wegner eventually lost control of the truck, and it flipped several times, tossing both men from the vehicle. Woody was transported to a nearby hospital and died the next day. It was later revealed Wegner’s blood-alcohol level that night was 0.28 – 3.5 times the legal limit of 0.08. He was arrested and later convicted of vehicular homicide and sentenced to five years in prison. He has since been released on probation. 

Now, Woody’s family is seeking accountability from the sheriff’s office for wrongful death and survivorship damages, alleging the high speed chase should never have been initiated in the first place. Decedent’s parents as representatives of his estate, filed a claim for $750,000 in damages back in September 2014. That claim letter indicated the county had 120 days from the date of the letter to resolve the claim without necessity of litigation. The county commissioners later acknowledged they had received the letter, but they never actually responded.

In March 2015, the estate formally filed their lawsuit against the county in which they alleged negligence, negligent infliction of emotional distress, survivorship and wrongful death. A couple weeks later, the county responded with a motion to dismiss for failure to state a claim, asserting the estate didn’t meet the three-year statute of limitations for such actions. Estate objected to the motion, arguing the claim letter it had submitted tolled the statute of limitations.

The district court granted the county’s motion to dismiss, but the Montana Supreme Court reversed.

Neither side disputes that the action first accrued on the date of the crash in December 2011. And neither state disputes that all civil actions have to be commenced within the periods prescribed, except when another law specifically provides a different limitation.

In Montana, as in many other states, claims against the state and/or political subdivisions of it first have to be presented to the county as a claim before a lawsuit can be formally filed. There is no tolling provision in that requirement, but the law does say actions against the county for claims that have been rejected have to be initiated within six months of that first rejection. But the county never rejected the claim in this instances. It never acknowledged it at all, really, except to say it had been received.

The state supreme court sided with the state, based on prior case law precedent that essentially held that so long as the initial claim was filed within the three-year statute of limitations, plaintiff had six months from that date – or the date of the first rejection – to file their claim. Because no rejection came, they had the full six months, which meant the claim was timely filed.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

In re Estate of Woody v. Big Horn County, July 26, 2016, Montana Supreme Court

More Blog Entries:

State Farm Mut. Auto. Ins. Co. v. Jakubowicz – Auto Insurance Policy Ambiguous, Aug. 2, 2016, Miami Wrongful Death Lawyer Blog