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Is it possible to get punitive damages in a Texas medical malpractice lawsuit?

Painter Law Firm's frequently asked question (FAQ) series

Yes, a jury may award punitive damages, or exemplary damages as they’re called under Texas law, in a medical malpractice lawsuit. There are some tough standards in place, though, that must be met to support punitive damages.

What are punitive (exemplary) damages under Texas law?

Texas Civil Practice & Remedies Code Section 41.001(5) defines exemplary damages as any damages awarded as a penalty or punishment. Thus, exemplary or punitive damages aren’t considered economic or non-economic damages.

What do you have to prove to get punitive damages?

The standard of proof for punitive damages is clear and convincing evidence, rather than the standard of regular negligence. Regular negligence means more likely than not. Clear and convincing evidence is a higher burden, closer to (but not reaching) the criminal burden of proof called beyond reasonable doubt.

To obtain exemplary damages, a plaintiff must prove harm that resulted from fraud, malice, or gross negligence. Fraud, malice, and gross negligence are typically difficult to prove because they require evidence of the defendant’s state of mind at the time of the conduct at issue. In normal negligence cases, it’s sufficient just to show that the defendant acted without reasonable care or made an error or mistake.

The jury decision must be unanimous in terms of answering all questions related to exemplary damages, meaning with regards to both liability and the amount.

Is there a cap on punitive damages?

When it comes to medical malpractice cases in Texas, there’s a cap for almost everything. Punitive damages are no different.

Texas Civil Practice & Remedies Code Section 41.008 imposes a cap on exemplary damages awarded against a defendant. The maximum exemplary damages are the greater of:

• Two times the economic damages (examples include past and future lost income and medical expenses) plus the non-economic damages (examples include intangible things like pain and suffering, mental anguish, and physical impairment) awarded by the jury up to $750,000; OR

• $200,000

The way the punitive damages cap works in medical malpractice cases is interesting in the way it interacts with the separate non-economic damages cap.

The jury is not instructed on the existence of non-economic damages caps or how they apply. The law requires that the jury be kept in the dark on the cap, and, therefore, the jury can award whatever amount in non-economic damages that it believes is supported by the evidence.

Depending on who is sued, the non-economic damages cap in a Texas medical malpractice case is between $250,000-$750,000. Let’s say that a Houston, Texas jury awarded $2 million in non-economic damages to a plaintiff. Before entering a judgment, the trial court judge would reduce the non-economic damages portion of the verdict to the amount of the cap.

In a medical malpractice case where punitive damages are awarded, the relevant number used to calculate the punitive damages cap is the amount of non-economic damages awarded by the jury, not the actual amount of non-economic damages that would be entered into the judgment after application of the non-economic damages cap.

I think the complexity of the way that all the various caps apply to Texas medical malpractice cases illustrates why it’s important for victims of medical negligence to seek help from a top-rated Texas lawyer with significant experience in handling medical malpractice cases.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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