Cumulative Conduct and Punitive Damages in New Mexico Medical Malpractice Cases

July 24, 2013

Medical Malpractice

Medical care will often include a number of different medical care providers employed by the hospital or other facility. These employees include doctors, physician assistants, nurses and other staff. Medical negligence will often stem from and be aggravated by the collective action of all these various employees and agents of the medical care facility.

It is clear that each individual provider can be held liable for compensatory and punitive damages for his own negligence. The question is how to deal with the collective action of the providers. More specifically, how does the cumulative conduct of these providers play into punitive damages In New Mexico?

High Bar for Punitive Damages

The bar for punitive damages is pretty high in New Mexico. The New Mexico Jury Instruction, 13-1827, requires malicious, willful, reckless, or wanton conduct on the part of the provider for an award of punitive damages. It may seem that this is easily met when you have been badly injured by medical negligence, but these standards are actually very high.

UJI 13-1827 defines the requisite conduct as follows:

“Malicious conduct is the intentional doing of a wrongful act with knowledge that the act was wrongful.
Willful conduct is the intentional doing of an act with knowledge that harm may result.
Reckless conduct is the intentional doing of an act with utter indifference to the consequences. When there is a high risk of danger, conduct that breaches the duty of care is more likely to demonstrate recklessness.
Wanton conduct is the doing of an act with utter indifference to or conscious disregard for a person‘s [rights] [safety].”

Cumulative Conduct in Determination of Punitive Damages

Because the standard is so high, each individual employee provider‘s own conduct may not reach the high bar for punitive damages. However, the conduct of the providers taken collectively may reach the level necessary for punitive damage awards.

The theory of cumulative conduct for an award of punitive damages is set out in the 1994 New Mexico Supreme Court case of Clay v. Ferrellgas. It was applied specifically to medical malpractice cases in the 2011 New Mexico Court of Appeals case of Grassie v. Roswell General Hospital.

Drawing from Clay, the Court in Grassie stated that:

“The cumulative conduct theory provides that an award of punitive damages against a corporation may be based on “the actions of the employees [viewed] in the aggregate [in order] to determine whether [the employer corporation] had the requisite culpable mental state because of the cumulative conduct of the employees.”

The court refuted the defendant‘s argument that the only basis for an employer‘s liability was for direct or vicarious liability as set forth in UJI 13-1827 which provides that the employee must be acting with actual authority (generally managerial) or alternatively that the employer ratified or authorized the conduct. The defendant argued that the jury instruction included no mention of cumulative conduct.

Law Need Not be Incorporated into Jury Instructions to Be Binding

The Court stated that just because a theory that has been recognized by the New Mexico Supreme Court has not been incorporated into the jury instructions does not mean it is therefore invalid and non-binding.

The Disputed Jury Instruction

The district court, over the objections of the defendant, issued the following jury instruction:
“If you find that the combined acts or omissions of Pamela Hayes Rodriguez, and/or Brian Miller, as employees, and [Dr.] Collins, as the apparent agent, of [Hospital] amounted to willful, reckless, or wanton conduct, you may award punitive damages against [Hospital].”

Prior to Clay, for punitive damages against a company, it had to be shown that the employee was exercising managerial control or that the employer “ratified, accepted, or acquiesced” in the employee‘s conduct.

Culpability of Employer Still Required

There must still be proof in some form of the employer‘s culpable state of mind. The Court did state that simple respondeat superior was insufficient. However, the cumulative conduct theory provides an alternative approach to the fairly narrow grounds of vicarious liability set forth in the jury instructions

The question then becomes what evidence of cumulative conduct may be considered in the award of punitive damages? The Court determined that the jury may consider background and contextual evidence.

Moreover, the background evidence of neglect on the part of individual employees need not establish proximate cause nor constitute a completed tort in and of itself. Instead, the collective cumulative conduct may be considered for a finding of “aggravated patient neglect.”

Why is it Important?

Clay and Grassie taken together are very important for injured patients. Without it, the medical care facility would simply pass the buck from one employee to the next with no accountability for its collective staff. In other words, the employer could simply say the employee had not authority to do what he or she did. Though medical malpractice cases remain difficult, this line of cases provides some relief to patients.

Perhaps more importantly, the cases hold the facilities fully accountable, even for punitive damages, for the collective actions of its employees and staff. This is in and of itself should go a long way toward promoting patient safety in New Mexico.

DISCLAIMER

Parrish Collins Personal Injury & Civil Rights Attorney