Types of Medical Liability Damages Physicians Can Face in New York

By Al Anthony Mercado, Esq., and Tammie Smeltz

As we hear way too often, New York is a litigious state. As a result, many healthcare providers could find themselves involved in a lawsuit with questions about the litigation process and the types of damages that are recoverable.

The malpractice litigation process includes a liability portion to determine whether the standard of care was met. If liability is established, the process moves into the damages portion, which can result in a damages award either by a settlement pre-trial or a verdict after a trial.

Many healthcare providers focus on the standard of care issue, while not fully understanding the type of damages that are recoverable. Essentially, not all damages are created equal. For instance, in New York a plaintiff may be entitled to recovery for economic or special damages, non-economic damages (such as pain and suffering) and punitive damages.

This article will define the different types of damages recoverable in New York State and provide a case study to illustrate these damages.

Special Damages

Special damages are intended to make the plaintiff whole again. These include lost wages, medical bills and co-pays. Special damages can be relatively simple to calculate and are proven during trial with documents like tax returns and receipts. In most circumstances, there are no surprises in the courtroom.

Non-Economic Damages

These are the damages most people think about when they talk about malpractice awards. Essentially, these are awards for “pain and suffering” that rely almost exclusively on the jury’s interpretation of the case as presented to them. Emotions like sympathy and empathy can play a significant role in awarding pain and suffering.

It is difficult to put a monetary value on a person’s pain. Because pain is subjective in nature, it creates a challenge during trial. Quite often, a jury will award pain and suffering based on their feelings towards the parties in the action.

Unlike some states, New York State does not have a cap on pain and suffering. When you hear about nuclear verdicts, in all likelihood, the facts of the case allowed the jury to feel sympathetic or empathetic towards the plaintiff. In addition, plaintiff attorneys sometimes attempt to suggest a high-dollar amount to the jury that is above reasonable compensation for non-economic damages. This is called “anchoring,” and it has played a significant role in rising awards in malpractice cases for non-economic damages.

Punitive Damages

The intent of punitive damages is not to compensate the plaintiff but rather to punish the healthcare provider. The primary concern with punitive damages is that such damages can lead to the potential exposure of personal assets and trigger reports to licensing agencies such as the Office of Professional Medical Conduct (OPMC).

According to New York Pattern Jury Instructions 2:278, punitive damages may be recovered in a medical malpractice action where the defendant’s conduct is so “intentional, malicious, outrageous or otherwise aggravated beyond mere negligence to warrant such an award. Some examples where punitive damages are recoverable against a healthcare provider include abandoning a patient when they needed emergency medical treatment or willfully failing to disclose pertinent medical information to evade a malpractice claim. You can expect a claim for punitive damages if there is language such as “wanton, reckless or malicious” in legal papers such as the summons and complaint.

Punitive Damages Case Study

The following is an example of a case in New York where punitive damages were awarded:

The infant plaintiff was a six-year-old girl who was referred to an endocrinologist by her pediatrician after her blood work revealed an excessive amount of glucose. The endocrinologist felt she was developing Type 2 diabetes but failed to consider it could have been Type 1. She determined that the child would not benefit from taking insulin. During the next couple of months, the infant plaintiff was seen by two physicians but did not receive any treatment. A few months later she died from diabetic ketoacidosis.

After a six-week trial in Queens County, the jury found that the endocrinologist departed from the standard of care and that departure was a substantial factor in causing the infant plaintiff’s death. The jury awarded damages in the amount of $400,000 for pain and suffering and $100,000 in economic damages for the infant’s parents.

During the trial, the plaintiff’s attorney was able to prove that the endocrinologist maliciously destroyed handwritten notes from her office evaluations after she knew she was about to be sued for medical malpractice. Because of this, the jury awarded the plaintiff $7.5 million in punitive damages. The case was appealed, and the Second Department reduced that award to $500,000.

To protect yourself from punitive damages like those seen in this case study, never destroy or alter the medical record. Any changes to medical records should be made in the form of an addendum and should be clearly labeled as such so there can be no allegation of fraudulent conduct or intentional cover up. Please do not hesitate to contact MLMIC should you have any questions regarding documentation, creating an addendum to the record or protecting yourself from a punitive damage claim.


Knowing the basic types of damages that are recoverable in New York is essential to understanding what you may face in a malpractice case, as well as the consequences of such damage awards. For further information, you may contact the attorneys at Mercado May-Skinner Law at any time.

Al Anthony Mercado, Esq. is a Managing Attorney at Mercado May-Skinner Law.

Tammie Smeltz is the Content Marketing Manager at MLMIC Insurance Company.