March 4, 2021

In its opinion filed on March 2, 2021, the Missouri Supreme Court affirmed a Missouri medical malpractice jury’s award in favor of the plaintiff  in the amounts of $269,780.80 for economic damages, $300,000 for noneconomic damages, and $300,000 for aggravating circumstances damages (punitive damages).

The Missouri Supreme Court stated that when seeking punitive damages against a health care provider in a medical malpractice case, an award shall be made only upon a showing by a plaintiff that the health care provider demonstrated willful, wanton or malicious misconduct with respect to his or her actions which are found to have injured or caused or contributed to cause the damages claimed in the petition. Section 538.210.8. For purposes of punitive damages, acting willfully, wantonly, or maliciously is equivalent to acting with a complete indifference to or in conscious disregard for the rights or safety of others.

The Missouri Supreme Court stated in the case it was deciding: “Viewing the evidence in the light most favorable to the jury’s verdict, it is clear Plaintiffs made a submissible case for aggravated circumstances damages because there was complete indifference to or conscious disregard for Decedent’s safety. When Decedent reported mild prostate issues, he was not suffering from a health emergency. Dr. Killion knowingly and incorrectly informed Decedent the only two treatment options were surgery or to self-catheterize for the remainder of his life. Dr. Killion knew there were other non-invasive treatment options, including a transurethral microwave treatment or use of different medications. These treatments could have addressed Decedent’s concerns, especially in light of the fact Decedent was at high risk for surgery. Dr. Killion also negligently resected too much prostate during the TURP surgery [transurethral resection of the prostate] and, to remedy his error, he had to conduct the additional TUIBN surgery [transurethral incision of the bladder neck], which he knew increased the risk of bladder perforation. Dr. Killion’s misplacement of the catheter and failure to recognize his error fell below the standard of care.”

“The events that occurred after breaching the standard of care form the basis for demonstrating aggravated circumstances damages were supported by the evidence. Rather than following the normal course of recovery, Decedent suffered severe abdominal pain immediately after his surgery. This pain indicated something was seriously wrong and needed to be investigated, but it was not. The day after the surgery, Decedent’s severe abdominal pain continued. Decedent had difficulty breathing, was experiencing kidney failure, and was showing signs of sepsis. Two days after the surgery, Decedent was in major organ failure, requiring dialysis and a ventilator.”

“Expert testimony, including from Dr. Killion, established that if a patient is doing poorly post-operatively, the possibility that something wrong happened during the surgery must be investigated. However, there was no investigation into the root cause of Decedent’s severe post-operative pain. Neither Dr. Killion nor Dr. Rankin performed any test to determine whether the bladder was perforated or the catheter was outside of the bladder. Yet, Dr. Killion wrote Decedent’s post-operative report asserting Decedent tolerated the procedure well and his care “will be managed in the usual fashion.” Dr. Killion testified there were at least three other non-invasive tests that could have been administered that would have revealed whether the catheter was misplaced.”

A submissible case for punitive damages requires clear and convincing proof that the defendant intentionally acted either by a wanton, willful or outrageous act, or reckless disregard for an act’s consequences (from which evil motive is inferred). To meet the “willful, wanton or malicious” culpable mental state required for punitive damages, a plaintiff can demonstrate the defendant showed a complete indifference to or conscious disregard for the safety of others.

A concurring opinion stated, “I concur in the result reached in the principal opinion. Considering the evidence under the appropriate standard of review as cited by the principal opinion, there was evidence suggesting Dr. Linza Killion’s post-surgery conduct constituted reckless indifference to—or conscious disregard of—Rhoden’s wellbeing and was “tantamount to intentional wrongdoing” … The requisite punitive damages standard of demonstrating “willful, wanton or malicious misconduct,” therefore, was met … [However,] [l]itigants should proceed cautiously when considering submitting punitive damages in future negligence actions and should reserve such submissions for the truly extraordinary cases.”

A dissenting opinion stated: “Dr. Killion’s decision to recommend surgery and his performance of that surgery were negligent, perhaps even grossly so, but it cannot be said they were “tantamount to intentional wrongdoing.” Plaintiffs suggest the decision to proceed to surgery warranted punitive damages because other options were available. But this merely constitutes a classic allegation of negligence in the context of a medical malpractice case. Plaintiffs cannot credibly suggest that the “natural and probable consequence” of the decision to proceed to surgery was death or that this decision presented such a high risk of Mr. Rhoden’s death so as to justify the law treating Dr. Killion as though he intended that outcome.”

A second dissenting opinion stated: “I respectfully dissent from the principal opinion’s conclusion that MAI 10.07’s “complete indifference or conscious disregard” standard for punitive damages is equivalent to §§ 538.205’s and 538.210’s “willful, wanton or malicious misconduct” standard. In my view, the General Assembly, in 1986, intended to modify the general punitive damages standard set out in MAI 10.07 to require a higher standard for punitive damages claims against health care providers. Therefore, the circuit court erred in giving MAI 10.07 because it was an incorrect statement of the substantive law … the General Assembly limited punitive damage claims against health care providers to claims rising to the level of “willful, wanton or malicious misconduct.” In my view, the General Assembly’s intent could not have been clearer: the less culpable standard of “complete indifference or conscious disregard” for punitive damages no longer applied to claims against health care providers. Nevertheless, our court of appeals failed to recognize the intentional modification to the common law and, perhaps counterintuitively, held the two standards are equivalent.”

Noteworthy: “Willful, wanton, or malicious misconduct” is no longer the standard for punitive damages for claims against health care providers in Missouri. See §§ 538.205 and 538.210, RSMo Supp. 2020.

Source Rhoden v. Missouri Delta Medical Center, No. SC98327.

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