The Punitive Damages Act (Act) allows plaintiffs to potentially recover damages beyond those needed to make a plaintiff whole. Case law on the Act frequently includes the cautionary statement that no degree of negligence is enough for a plaintiff to recover punitive damages. In the quest to recover more for their clients, plaintiffs' attorneys frequently plead punitive damages as part of their complaints. Ultimately, punitive damages remain elusive for plaintiffs in medical malpractice cases. This article considers the substantive law and procedural issues associated with punitive damages, particularly in the context of medical malpractice matters.

Overview of Punitive Damages and Their Rejection in Case Law Before the Punitive Damages Act

Unlike compensatory damages, punitive damages exist to punish a defendant whose conduct was egregious and deter future misconduct from that defendant. Punitive damages are the exception and not the norm, particularly for medical malpractice cases. Older cases support the rarity of punitive damages in medical malpractice cases. For example, in a case from 1924, the plaintiff developed a leg infection after the defendant physician operated on a hematoma with a "safety razor blade." The court saw no basis for an award of punitive damages. The court also determined the trial court improperly allowed the jury to consider the physician's financial status since there was no basis for punitive damages. Smith v. Corrigan, 100 N.J.L. 267, 270 (1924).

The New Jersey Supreme Court considered and rejected the potential for punitive damages in a case where a physician signed civil commitment paperwork outside the presence of a notary and without examining the plaintiff, as required by statute. Di Giovanni v. Pessel, 55 N.J. 188 (1970). Similarly, punitive damages were not recoverable where the plaintiff failed to establish, she was the victim of "ghost surgery," by someone who was not authorized to operate on her. Monturi v. Englewood Hosp., 246 N.J. Super. 547 (App. Div. 1991).