In Mirian Rivera v. The Valley Hospital, Inc. (A-25/26/27-21) (Decided August 25, 2022), the Supreme Court of New Jersey reaffirmed when punitive damages claims are available in New Jersey medical malpractice cases. The court held that punitive damages were not warranted because the evidence did not show that the defendants’ “acts or omissions were motivated by actual malice or accompanied by wanton and willful disregard for [the plaintiff’s] health and safety.”
Facts of Rivera v. The Valley Hospital, Inc.
Viviana Ruscitto passed away from leiomyosarcoma, a rare cancer. Ruscitto’s cancer was discovered after she underwent a laparoscopic hysterectomy at The Valley Hospital with the use of a power morcellation device — a device used to cut uterine and fibroid tissue into smaller pieces to facilitate removal. The surgery was performed by defendant Howard Jones, a gynecologic surgeon at the hospital with whom Ruscitto met four times before she underwent surgery.
Roughly six months before the surgery, the U.S. Food and Drug Administration (FDA) issued a Safety Communication warning to health care providers about the dangers of using power morcellation for hysterectomies because its usage could spread or “upstage” unsuspected uterine cancer. In response to the FDA Communication, Valley Hospital administrators and physicians collaborated in the drafting of an informed consent form to reflect the concerns expressed in the FDA Communication. The form was drafted and approved by the legal department in the months following the FDA Communication but was never implemented.
One month after her surgery, the FDA issued an updated communication explicitly warning against the use of power morcellators in the majority of cases. Valley Hospital then discontinued use of the power morcellation device.
Plaintiffs, the heirs and executor of Ruscitto’s estate, filed complaints seeking compensatory and punitive damages on numerous counts. Defendants filed motions for partial summary judgment to dismiss the punitive damages claim. The trial court issued an order denying all defendants’ motions for partial summary judgment. Defendants sought leave to appeal, which the Appellate Division denied.
NJ Supreme Court’s Decision in Rivera v. The Valley Hospital, Inc.
The New Jersey Supreme Court reversed, concluding that the trial court erred in failing to grant the defendants’ partial summary judgment motion as to the punitive damages claim.
“We find that under the facts of this case, partial summary judgment should have been granted in defendants’ favor because there is no genuine issue of material fact as to whether defendants’ acts or omissions reflected actual malice or wanton and willful disregard for Ruscitto’s health such that punitive damages would be appropriate in this case,” the court wrote. “Based on the facts before the trial court on the summary judgment record, plaintiffs’ allegations have not established by clear and convincing evidence that punitive damages may be warranted in this case.”
In reaching its decision, the New Jersey Supreme Court cited the Punitive Damages Act (PDA), which was enacted to establish and enforce more restrictive standards in the awarding of punitive damages. It provides that “[p]unitive damages may be awarded . . . only if plaintiff proves, by clear and convincing evidence,” both “that the harm suffered was the result of defendant’s acts or omissions,” and that defendant’s acts or omissions were either “actuated by actual malice” or were “accompanied by wanton and willful disregard of persons who foreseeably might be harmed.” The PDA explicitly states that “[t]his burden of proof may not be satisfied by proof of any degree of negligence including gross negligence.” “Actual malice” is defined as “intentional wrongdoing in the sense of an evil-minded act,” while “wanton and willful disregard” is defined as “a deliberate act or omission with knowledge of a high degree of probability of harm to another and reckless indifference to the consequences of such act or omission.”
Based on the foregoing, the New Jersey Supreme Court concluded that the evidence presented, even affording the Plaintiffs all favorable inferences, did not establish that defendants’ acts or omissions were motivated by actual malice or accompanied by wanton and willful disregard for Ruscitto’s health and safety. “A reasonable jury could not find by clear and convincing evidence that punitive damages are warranted based on these facts,” the court wrote.
The New Jersey Supreme Court first cited that because the FDA Communication was purely advisory in nature, the use of the power morcellator after that communication did not constitute per se evidence of wanton and willful disregard for Ruscitto’s safety. With regard to Dr. Jones, the court found that nothing in the facts before the court suggested that he acted with actual malice or with wanton and willful disregard of Ruscitto’s health as those terms are defined in N.J.S.A. 2A:15-5.10.
“[T]he FDA Communication noted that there was less than a one percent risk that a woman would have unsuspected uterine sarcoma, and leiomyosarcoma unfortunately cannot be reliably diagnosed preoperatively,” the court explained. “Dr. Jones performed the power morcellation procedure on Ruscitto after meeting with her four times and conducting tests. Based on that evidence, the wanton and willful standard that required Dr. Jones to have acted with ‘knowledge of a high degree of probability of harm’ and with ‘reckless indifference to the consequences’ of his actions such that punitive damages may be awarded has not been met.”
The New Jersey Supreme Court went on to find that the Plaintiffs’ punitive damages claim against the Valley Hospital defendants was “even less compelling” than the claim against Dr. Jones. “[T]he efforts taken by the Valley Hospital defendants illustrate that they did not simply sit on their hands and do nothing in response to the FDA Communication,” the court wrote. “And although the draft consent form was never fully adopted and implemented, plaintiffs’ arguments regarding the lack of informed consent for the power morcellation procedure after the FDA Communication sound in ordinary negligence, not in actions taken with an ‘evil mind.’”