Punitive Damage Claim Permitted to Proceed Against NY Doctor Claimed to Have Infected 37 Patients with Hepatitis B

Although medical malpractice can sometimes be egregious, such as in the case of “wrong-site” surgery, the courts in most states are extremely reluctant to permit the recovery of punitive damages. There are a number of reasons for this.

Since “exemplary” (punitive) damages are specifically designed to punish a defendant and to deter similar conduct in the future, it is unlikely that most malpractice cases will ever require such a harsh civil penalty to be imposed.In addition, the conduct involved must be far more than simply negligent; it must be so “grossly” negligent as to be practically intentional. Willful, wanton, or reckless are terms often used to describe the level of conduct needed to justify the imposition of punitive damages.

As a result of the difficulty in meeting these requirements, the number of medical malpractice cases in which punitive damages have been allowed are few indeed. The New York courts have been particularly unwilling to permit such damages to be awarded.

Thus, when a New York intermediate appellate court permitted a claim for punitive damages to proceed last month, news of the decision was reported on the front page of the New York Law Journal.

While New York’s highest court, the Court of Appeals (in Albany), is the final authority on matters involving pure questions of law in the state, the four (intermediate) Appellate Divisions are entrusted with making the final determination when it comes to pure questions of fact and the adequacy of the proof offered on a given factual issue.

The Appellate Division (First Department), which has jurisdiction over a large portion of the state’s population (Manhattan and the Bronx in New York City) albeit in a small geographical area, determined that the plaintiff had made a sufficient showing in opposition to a pre-trial motion for summary judgment “to permit a jury to find that defendant’s conduct demonstrated a gross indifference to patient care and a danger to the public.” (Williams v. Halpern, 2006 WL 133998, NYLJ 1/23/06 p.25).

The Williams case involves claims against Dr. Seymour L. Halpern, a New York City doctor who treated many elderly patients in his Manhattan office.

The allegations against Dr. Halpern are that his practices were so lax that they led to as many as 37 of his patients becoming infected with hepatitis B. To date, seven of those patients have filed medical malpractice suits in New York County (Manhattan).

Hepatitis B is a serious disease that attacks the liver thereby causing jaundice and fatigue. Those suffering from hepatitis B are highly susceptible to infection and, in chronic cases, the disease can be fatal.

Dr. Halpern is claimed to have treated his elderly patients with a monthly regimen that consisted of a combination of injections of medications and vitamins. After another doctor observed that two of Halpern’s patients had contracted hepatitis B notwithstanding the fact that neither had an of the risk factors associated with the disease, the New York City Department of Health (DOH) conducted an investigation of Dr. Halpern’s practice.

The report that followed the investigation stated that “evidence to date strongly suggests that defendant Halpern contaminated a minimum of 37 patients with hepatitis.” The DOH found Dr. Halpern had apparently spread the disease through the repeated use of a multidose vial containing one of the substances he would inject his patients with that had become contaminated.

The judge presiding over the case (and at least one other, Lacterman v. Halpern) found that Dr. Halpern had not only failed to advise the DOH of the problem after several cases of hepatitis B came to his attention, but had also failed to inform some of his patients that they had been infected thus preventing them from seeking timely and proper treatment for the disease.

Although punitive damages are rarely permitted in medical malpractice actions in New York, several attorneys we spoke with agreed that the unusual and extreme facts of this case, and those of Dr. Halpern’s other infected patients, presented the kind of reckless conduct for which an award of punitive damages was appropriate.

It should be pointed out that, while the Appellate Division decision has acknowledged sufficient evidence exists to permit the claim for punitive damages to proceed to trial, it will still be up to a jury to determine if such an award should be made after all of the evidence is presented.

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