“Willful & Wanton”: What to Know When Faced with a Medical Malpractice Complaint

April 11, 2022 by

The Two Most Harmful Words in a Medical Malpractice Complaint.

In the critically acclaimed film Whiplash, J.K. Simmons proclaims, “there are no two words in the English language more harmful than ‘Good job.’” While that may be true for those who favor the old school methods of motivation, for health care providers reading their first medical malpractice complaint, dangers lurk in alternative grammatical arenas.

Defendants are often unfamiliar with laws surrounding damages. The words “As a direct and proximate cause of Dr. X’s willful and wanton conduct….” conjure up confusion, fright, and anger. Understandably so. No one wants to be told they have committed malpractice, let alone committed malpractice on purpose.

For most, these legal buzzwords are a crafty plaintiff’s way of navigating around North Carolina monetary recovery restrictions. Take a deep breath and do not run for the bottle of wine just yet.

Damages Under North Carolina Law

Compensatory damages are built for “making a plaintiff whole.” Essentially, these damages are for economically calculable losses AND “non-economic” damages such as pain and suffering. Medical bills and lost wages often make up the majority of compensatory damages. However, given the potential open-ended non-economic pain and suffering, North Carolina has capped the recoverable amount at $500,000 with a three-year adjustment for inflation.

Alright, this whole damage cap thing is nice. The policy coverage is well within the limits. No big deal. Let’s get this over with, right? That’s where punitive damages come in.

Punitive damages are permitted solely on the basis to punish intentional wrongdoing and deter similar behavior. Newton v. Standard Fire ins. Co. 291, N.C. 105, 113 (1967). Under N.C.§ 1D-15, punitive damages may be awarded only if the claimant proves that the defendant is liable for compensatory damages AND there is the presence of either fraud, malice, or willful or wanton contact related to the injury for which compensatory damages were awarded. Plaintiffs must give sufficient notice of punitive damages for willful and wanton conduct to allow the claims to move forward.

Notably, the cap associated with these damages is much higher. A plaintiff can recover up to three times the amount of compensatory damages or $250,000.00, whichever is higher. From a plaintiff’s perspective, there is no better way to safeguard a claim for punitive damages than explicitly saying “will and wanton.” Also, from a plaintiff’s perspective, there is no better way to maximize recovery than pleading punitive damages.

What is Willful and Wanton Conduct?

Under North Carolina law, “Willful and Wanton Conduct” is defined as the conscious and intentional disregard of and indifference to the rights and safety of others, which the defendant knows or should know is reasonably likely to result in injury, damages, or other harm. Notably, the plaintiff must prove Willful and Wanton conduct by clear and convincing evidence.

How Worried Should I be about the Willful and Wanton Conduct Claim?

First of all, keep the worrying to a minimum. A crucial role of your attorney is to do the worrying for you. Punitive damages in medical malpractice cases are rare. How rare? Let’s look.

In Mazza v. Huffaker, a jury found for $500,000 in punitive damages after a psychiatrist committed “willful” acts of adultery with a patient’s wife and abandoning the patient at a critical stage of treatment without reason. Granted, this is an extreme example, but it does illustrate the “willful and wanton” conduct Courts consider. Notably, most punitive damage claims against health care providers will eventually be dismissed prior to trial.

Let’s revisit our health care provider who received a Complaint. “As a direct and proximate cause of Dr. X’s willful and wanton conduct….”. Do not panic. Recognize the legal buzzwords and their effect.

While the allegations in the Complaint may not have occurred as a result of “willful or wanton” conduct,  if there is a chance the plaintiff may be able to prove to a jury the treatment was done in the “conscious and intentional disregard of and indifference to the rights and safety of others,” it will likely be included in the Complaint. Often, this has less to do with the care and more to do with the damages.

 

About the Author

Chris VernickAttorney

Chris Vernick represents health care providers, hospital systems, and medical practice groups through all phases of litigation. He also handles North Carolina Medical Board matters.

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