In its opinion filed on April 9, 2020, the Virginia Supreme Court held: “the Circuit Court of Prince William County erred by striking the evidence supporting a claim for punitive damages against a physician who repeatedly prescribed narcotic pain medication to a patient. Under the particular factual scenario presented, we reverse the circuit court’s decision and remand the case to the circuit court for further proceedings.”
The Underlying Facts
The plaintiff fractured her ankle on March 6, 2011. The defendant, Christopher Highfill, performed three surgeries on the plaintiff’s ankle (the third surgery was on November 16, 2012, to remove hardware from the plaintiff’s ankle).
During the 40 months following the first surgery, the defendant provided 144 prescriptions for Percocet for the plaintiff (generally prescribing between 40 and 60 five-milligram Percocet pills on a weekly basis). Throughout the course of the plaintiff’s treatment, the defendant prescribed over 7,000 Percocet pills to the plaintiff. Percocet is a drug consisting of acetaminophen and oxycodone, a controlled narcotic substance.
The defendant knew that the plaintiff had an increased risk of developing an addiction to narcotic pain medication due to her history of bipolar disorder and alcohol use but never attempted to treat her pain with a nonnarcotic medication, and the Percocet dosage remained fairly constant over the course of her treatment. The plaintiff would call the defendant’s office each week and requested a refill of her Percocet prescription, and the defendant wrote a new prescription after reviewing notes from his office staff and the plaintiff’s chart. The plaintiff would then come to the defendant’s office and pick up her prescription from a staff member. The defendant did not examine the plaintiff during the last fourteen months of her life (during that time period, the defendant wrote 52 prescriptions for approximately 2,400 Percocet pills for the plaintiff).
The defendant wrote the plaintiff’s last Percocet prescription on June 16, 2014, which the plaintiff picked up from the defendant’s office on June 19, 2014. The plaintiff was found dead in her home two days later. An autopsy indicated that her death was caused by an accidental overdose of oxycodone, alcohol, and other prescription medications.
The administrator of the plaintiff’s estate filed a Virginia medical malpractice wrongful death action against the defendant and other parties. The circuit court granted the defendant’s motion to strike the administrator’s punitive damages claim, and the plaintiff appealed.
Virginia Supreme Court Opinion
Pursuant to Code § 8.01-52(5), punitive damages “may be recovered for willful or wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others.” Willful and wanton negligence is acting consciously in disregard of another person’s rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another. Willful and wanton negligence, unlike gross or ordinary negligence, requires an actual or constructive consciousness that injury will result from the act done or omitted. The hallmark of this species of tortious conduct is the defendant’s consciousness of his act, his awareness of the dangers or probable consequences, and his reckless decision to proceed notwithstanding that awareness. Ill will is not a necessary element of willful and wanton conduct. A tortfeasor may be guilty of willful and wanton conduct when he intends his act, but not the resulting harm.
The Virginia Supreme Court stated in the case it was deciding, “we conclude that the jury could reasonably have found that [the defendant’s] actions evinced a reckless disregard for [the plaintiff’s] wellbeing, had the administrator’s punitive damages claim been submitted for their consideration. On the record here, the jury reasonably could have determined that [the defendant] consciously disregarded a known risk to [the plaintiff’s] health and safety when he continued to write [the plaintiff] prescriptions for Percocet under the circumstances of this case.”
The Virginia Supreme Court stated: “The evidence presented established that Highfill, a medical doctor, was conscious of the risks posed by the long-term use of narcotic pain medication. Moreover, Highfill admitted at trial that he knew that there was an increased risk that Curtis would abuse or become addicted to such medication due to her bipolar disorder and history of alcohol use. Highfill discussed the risks associated with the ongoing use of Percocet with Curtis on several occasions and he contemplated lowering her dosage of the medication. Despite Curtis’ heightened risk of addiction, Highfill continued to write Curtis prescriptions for Percocet for over three years without attempting to treat her pain with a nonnarcotic medication. Highfill acknowledged that a patient taking narcotic pain medication for an extended period of time needed to be monitored for signs of drug abuse and addiction. Highfill, however, did not examine Curtis during the last 14 months of her life. During this time period, Highfill wrote Curtis 52 prescriptions for Percocet. While Highfill continued to write Percocet prescriptions for Curtis, he failed to examine her to ensure that she was not abusing the prescribed medication. Importantly, the evidence presented in this case could have supported the inference that Highfill wrote Curtis multiple prescriptions for Percocet when he knew that he had not regularly examined Curtis for signs of abuse or addiction … We acknowledge that the evidence presented in this case did not in any way establish that Highfill had “ill will” toward Curtis or that he intended her to suffer any harm. As previously explained, however, “ill will” is not a required element of the willful and wanton conduct underlying a claim for punitive damages.”
The Virginia Supreme Court held: “Based on the evidence presented at trial, the jury could have reasonably determined that: (1) Highfill was conscious of the risks associated with the long-term use of Percocet and Curtis’ increased risk of drug abuse and addiction, and (2) Highfill consciously disregarded those risks when he continued to prescribe Percocet to Curtis while knowing that he had not examined her for signs of abuse or addiction for a significant period of time. Accordingly, the administrator’s punitive damages claim should have been submitted to the jury.”
Source Curtis v. Highfill, Record No. 190117.
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