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Christopher B, Esq
Christopher B, Esq, Attorney
Category: Personal Injury Law
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Experience:  personal injury and medical malpractice attorney
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Does Florida allow punitive damages in a medical malpractice

Customer Question

Does Florida allow punitive damages in a medical malpractice case on the theory of vicarious liability?
Submitted: 2 years ago.
Category: Personal Injury Law
Expert:  Christopher B, Esq replied 2 years ago.

My name is***** and I will be helping you with your question today. This is for informational purposes only and does not establish an attorney client relationship.

In 1999, Fla. Stat. § 768.72 was amended to provide criteria for the imposition of punitive damages with respect to employers, principals, corporations, or other legal entities for the conduct of an employee or agent. Accordingly, an employer cannot be held vicariously liable for punitive damages caused by an employee unless the plaintiff clearly and convincingly proves the two prong test set out in §768.72(3). The first prong requires the employee was "personally guilty of intentional misconduct or gross negligence."Despite the language of "gross negligence" in the statute, Florida courts have consistently held the degree of negligence necessary for punitive damages to be willful and wanton misconduct equivalent to criminal manslaughter, suggesting the required misconduct goes beyond gross negligence, and be proven by clear and convincing evidence. It is therefore difficult for a plaintiff to meet the requirements of the first prong to show an employee acted willfully and wantonly and if that threshold prong is not satisfied, no claim can be made against the employer.

Should a plaintiff overcome this high standard relating to the conduct of the employee tortfeasor, he still has one more hurdle before making a valid claim against an employer for punitive damages under a theory of vicarious liability. A plaintiff must show (1) the employer "actively and knowingly participated in such conduct," (2) the employer "knowingly condoned, ratified, or consented to such conduct," or (3) the employer "engaged in conduct that constituted gross negligence and that contributed to the loss, damages, or injury suffered by the claimant." It should be noted that under the vicarious liability theory, the independent negligent conduct of the employer does not need to be attributed to a managing agent. The independent negligence necessary to meet any of these three requirements can be shown through any employee of the corporation. Despite the degree of culpability required by the corporation, the changes to Florida's statute made it exceedingly more difficult to hold an employer vicariously liable for punitive damages. This second prong requires a plaintiff to allege andprove some specific fault on the part of the. However, the conduct of the corporate employer is not subject to the same heightened culpability as that of its employee. (i.e. willful and wanton disregard for life). Ordinary negligence is usually enough to meet the test.

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Expert:  Christopher B, Esq replied 2 years ago.
I see you viewed my answer, do you have any further questions? If not, please positively rate my answer if satisfied.
Expert:  Christopher B, Esq replied 2 years ago.

Any chance for a positive rating?

Expert:  Christopher B, Esq replied 2 years ago.

Any chance for a positive rating?