Malice/gross negligence.

I n health care liability claims, claimants often plead for recovery of exemplary/punitive damages from the defendant health care providers. These allegations often cause anxiety for the defendants, because invariably their professional liability insurance carrier sends them a letter stating that such claims—as well as any damages that may be awarded to compensate the claimant for such claims—are not covered by insurance, thereby bringing to harsh light the fact that their personal assets have been placed at risk. The burden on claimants to prove entitlement to such damages, however, is quite heavy. As such, while requests for exemplary/punitive damages are ubiquitous in health care liability claims, it is quite rare that the underlying facts, unless very egregious, support such allegations, both at trial and on appellate review. Under current Texas law, a claimant is not entitled to exemplary/punitive damages unless the claimant proves that the underlying injury or event on which the request for exemplary/ punitive damages is based results from fraud, malice, or gross negligence (1) or is based on a separate statutory provision that both establishes a cause of action and authorizes the recovery of exemplary/punitive damages (2). When exemplary/punitive damages are sought in health care liability claims, they are most frequently based on allegations of malice and/or gross neglect. The existence of fraud, malice, and/or gross negligence must be proven by “clear and convincing” evidence (3). “Clear and convincing” evidence is defined as “the measure of the degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established” (4). This standard has been described as falling “between the preponderance standard of civil proceedings and the reasonable doubt standard of criminal proceedings” (5). Further, exemplary/punitive damages may be awarded only if the jury is unanimous in deciding liability for exemplary/punitive damages and the amount of exemplary/punitive damages to be assessed (6). In addition, there is authority that supports the contention that in a health care liability claim, the elements of “malice” and/or “gross negligence” need to be established by expert testimony (7). Malice is defined as “a specific intent by the defendant to cause substantial bodily injury or harm to the claimant” (8). This is a pretty straightforward definition. Malice is quite difficult to prove in the context of health care services. Basically, to establish malice, a claimant must show not only that the defendant had some ill will towards her, but that he purposely acted on that ill will to cause her some serious injury. Gross negligence, as defined, is a much more nebulous and complicated concept. Gross negligence is an act or omission “which (1) when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others” (9). To establish gross negligence, there must be more than evidence of “simple negligence” (10). Gross negligence, however, can be established through circumstantial evidence (11). To satisfy the “extreme risk” part of the definition, there must be evidence of more than “a remote possibility of injury or even a high probability of minor harm.” To establish extreme risk, the evidence must show “the likelihood of serious injury” (11). The “actual awareness” element requires evidence that “the defendant knew about the peril, but its acts or omissions demonstrated that it did not care” (12). In Columbia Medical Center of Las Colinas v. Bush, the Fort Worth Court of Appeals reviewed a matter in which a jury found the hospital liable for exemplary/punitive damages because three of its employees participated in the improper administration of a contraindicated medication to the plaintiff during an emergency department admission. The hospital employees tried to defend their conduct on the basis that the medication at issue was ordered by “doctors that we trusted” (13). The Court of Appeals found that the “extreme risk” and “actual awareness” elements were satisfied in this situation because, despite the fact that the medication was ordered by a physician, each of these individuals knew from the Advanced Cardiac Life Support guidelines that the medication could have “lethal,” “disastrous” consequences when administered to someone like the plaintiff, and they recognized that the standards of care applicable to them required that they exercise independent Malice/gross negligence