Malice/Gross Negligence (Medicolegal Issues‪)‬

In 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.