Periodically, a client will ask about punitive damages. The topic often arises in situations where the other party’s negligence had the potential to create much greater harm than actually occurred. Example:  A company’s defectively designed product which could have caused death or serious injury did not, but only due to sheer luck. The client learns that they are not entitled to recover for an injury that could have occurred, only for what did occur. Most clients accept this, but are genuinely concerned that something worse does not happen to someone else. This sometimes leads to questions about punitive damages.

Punitive damages are distinct from compensatory damages, which are awarded to compensate the injured party for his/ her losses. Punitive damages cannot be awarded without some recovery for compensatory damages. They are assessed in addition to compensatory damages as an expression of a jury’s outrage over the conduct of the defendant. However, ordinary negligence, even gross negligence, will not result in recovery of punitive damages. More…

Click here for the full article on the Democrat and Chronicle website.

Back in September of 2008, we posted an article about Kash v. Jewish Home & Infirmary of Rochester, a case scheduled to be heard by the Appellate Division, Fourth Department in its upcoming term. The appeal was argued in December and was recently decided by a 3-2 majority of the justices in favor of victims of neglect or abuse in nursing homes. The Appellate Division held that a nursing home resident injured due to the negligence of the staff could bring a medical malpractice claim against the nursing home together with a claim under New York Public Health Law §2801-d. See Kash v. Jewish Home & Infirmary of Rochester, N.Y., Inc., 2009 NY Slip Op 1041, 2009 N.Y. App. Div. LEXIS 1065 (4th Dept. 2009). (For more infromation about §2801-d, read the September 19, 2008 posting). More…

New York Public Health Law §2801-d provides a statutory remedy to nursing home patients for injuries suffered as a result of the deprivation of certain rights or benefits granted by contract, or by applicable federal and state law. The statute mandates an award of compensatory damages of no less than twenty-five percent of the nursing facility’s daily rate for each day the patient’s injury exists. In addition, it provides for punitive damages and attorneys’ fees in appropriate circumstances.

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