Punitive Damages Medical Malpractice Cases In California
Code of Civil Procedure section 425.13 imposes procedural requirements on a party claiming punitive damages in a medical malpractice action.
The general rule is that, "in any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint . . . ." In order to avoid this prohibition, a plaintiff in such an action must file a motion, usually accompanied by affidavits or other evidentiary material, showing a "substantial probability" of prevailing on the punitive damages claims.
Believing that meritless claims were commonly included in such actions, sometimes for tactical reasons, the Legislature enacted a protection for medical professionals. (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal. 4th 181, 189-191 [10 Cal. Rptr. 2d 208, 832 P.2d 924]; College Hospital Inc. v. Superior Court, supra, 8 Cal. 4th at p. 717.)
The statute contemplates that the court will decide the issue "on the basis of the supporting and opposing affidavits . . . ." ( Code Civ. Proc., 425.13.) However, it is commonplace for the showings for and against the motion to include other evidence, such as excerpts from depositions. (See, e.g., College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 711 at fn. 3 [34 Cal. Rptr. 2d 898, 882 P.2d 894] [depositions submitted by both sides]; Aquino v. Superior Court (1993) 21 Cal. App. 4th 847, 859 [26 Cal. Rptr. 2d 477] [depositions].)
As a rule, punitive damages are not covered by malpractice or liability insurance. ( Ins. Code, 533.)
Thus, such a demand puts a defendant's personal assets at risk. a plaintiff might also use the mere pleading of such a claim for publicity purposes.
Code of Civil Procedure section 425.13 is clearly conceptually related to the statutes enacted as part of the Medical Injury Compensation Reform Act of 1975 (MICRA), post.
In order to carry out this purpose, the Supreme Court in Central Pathology construed the statute to apply "whenever an injured party seeks punitive damages for an injury that is directly related to the professional services provided by a health care provider acting in its capacity as such . . . ." (3 Cal. 4th at p. 191, italics added.)
Thus, although Code of Civil Procedure section 425.13 on its face applies only to actions involving "negligence," its procedures must be followed even if the plaintiff alleges an intentional wrong such as fraud (Central Pathology) or sexual battery. ( Cooper v. Superior Court (1997) 56 Cal. App. 4th 744, 751-752 [65 Cal. Rptr. 2d 674].)