Order Code RL31721
Punitive Damages in Medical Malpractice Actions:
Burden of Proof and Standards for Awards
in the 50 States
Updated January 18, 2006
Henry Cohen
Legislative Attorney
American Law Division
Tara Alexandra Rainson
Law Librarian
Knowledge Services Group

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Punitive Damages in Medical Malpractice Actions:
Burden of Proof and Standards for Awards
in the 50 States
Summary
This report consists of a chart setting forth the burden of proof and standards for
awards of punitive damages in medical malpractice suits in the 50 states. The burden
of proof refers to the plaintiff’s duty to present evidence to prove his case. The
lowest burden, which usually applies in civil cases, is “preponderance of the
evidence.” To recover punitive damages, however, a majority of states, as this report
indicates, impose a higher burden of proof — proof by “clear and convincing
evidence.” Finally, for punitive damages, Colorado requires proof “beyond a
reasonable doubt,” which is the highest standard — usually the burden that the
government must meet in criminal prosecutions.
Standards for awards of punitive damages refer to what the plaintiff must prove
to receive an award of punitive damages. To recover compensatory damages in a
medical malpractice case, the plaintiff typically must prove negligence. To recover
punitive damages, the plaintiff must prove that the defendant’s conduct was more
egregious than negligence, and usually more egregious than gross negligence. This
report sets forth the specific requirements.
Most of the provisions listed in the chart apply to punitive damages not only in
medical malpractice cases, but in other tort cases as well. Where “punitive damages
prohibited” appears, the prohibition may be limited to medical malpractice cases, or
it may apply to other tort cases as well.
A chart of state caps on awards of punitive damages and of noneconomic
damages in medical malpractice cases may be found in CRS Report RL31692,
Medical Malpractice Liability Reform: Legal Issues and 50-State Survey of Caps on
Punitive Damages and Noneconomic Damages, by Henry Cohen.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Chart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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Punitive Damages in Medical Malpractice
Actions: Burden of Proof and Standards
for Awards in the 50 States
Introduction
This report consists of a chart setting forth the burden of proof and standards for
awards of punitive damages in medical malpractice suits in the 50 states. The burden
of proof refers to the plaintiff’s duty to present evidence to prove his case. The
lowest burden, which usually applies in civil cases, is “preponderance of the
evidence.” To recover punitive damages, however, a majority of states, as this report
indicates, impose a higher burden of proof — proof by “clear and convincing
evidence.” Finally, for punitive damages, Colorado requires proof “beyond a
reasonable doubt,” which is the highest standard — usually the burden that the
government must meet in criminal prosecutions.
Standards for awards of punitive damages refer to what the plaintiff must prove
to receive an award of punitive damages. To recover compensatory damages in a
medical malpractice case, the plaintiff typically must prove negligence. To recover
punitive damages, the plaintiff must prove that the defendant’s conduct was more
egregious than negligence, and usually more egregious than gross negligence. This
report sets forth the specific requirements.
Most of the provisions listed in the chart apply to punitive damages not only in
medical malpractice cases, but in other tort cases as well. Where punitive damages
prohibited appears, the prohibition may be limited to medical malpractice cases, or
it may apply to other tort cases as well.
A chart of state caps on awards of punitive damages and of noneconomic
damages in medical malpractice cases may be found in CRS Report RL31692,
Medical Malpractice Liability Reform: Legal Issues and 50-State Survey of Caps on
Punitive Damages and Noneconomic Damages, by Henry Cohen.

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CRS-2
Chart
State and Citation
Burden of Proof
Standard
Alabama,
clear and convincing
“the defendant consciously or deliberately engaged in
§ 6-11-20
evidence
oppression, fraud, wantonness, or malice”
Alaska
clear and convincing
“defendant’s conduct (1) was outrageous, including acts done
§ 09.17.020
evidence
with malice or bad motives; or (2) evidenced reckless
indifference to the interest of another person”
Arizona
clear and convincing
defendant engaged in “reprehensible conduct” and acted “with
Medasys Acquisition
evidence
an evil mind”
Corp. v. SDMS, P.C.,
55 P.2d 763 (Az.
2002)
Arkansas
clear and convincing
“defendant knew or should have known ... that his or her
§ 16-55-206;
evidence
conduct would naturally and probably result in injury or damage
§ 16-55-207
and that he or she continued the conduct with malice or in
reckless disregard of the consequences ...” or “defendant
intentionally pursued a course of conduct for the purpose of
causing injury or damages.”
California Civil
clear and convincing
“oppression, fraud, or malice”
Code § 3294
evidence
Colorado
beyond a reasonable doubt
“fraud, malice, or willful and wanton conduct”
§ 13-25-127(2);
§ 13-64-302.5
Connecticut
preponderance of the
“a reckless indifference to the rights of others or an intentional
Freeman v. Alamo
evidence
and wanton violation of those rights.”
Management Co.,
607 A.2d 370 (Conn.
1992); Sorrentino v.
All Seasons Servs.,
717 A.2d 150 (Conn.
1998)
Delaware
preponderance of the
“injury complained of was maliciously intended or was the
T. 18, § 6855
evidence
result of wilful or wanton misconduct by the health care
provider”
District of Columbia
clear and convincing
“egregious conduct”; “malice or its equivalent”
Railan v. Katyal, 766
evidence
A.2d 998, 1012
(D.C. 2001); Croley
v. Republican Nat’l
Comm., 759 A.2d
682, 695 (D.C. 2000)
Florida
punitive damages
§ 766.207(7)(d)
prohibited

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CRS-3
State and Citation
Burden of Proof
Standard
Georgia
clear and convincing
“willful misconduct, malice, fraud, wantonness, oppression, or
§ 51-12-5.1
evidence
that entire want of care which would raise the presumption of
conscious indifference to consequences”
Hawaii
clear and convincing
“defendant has acted wantonly or oppressively or with such
Dairy Road Partners
evidence
malice as implies a spirit of mischief or criminal indifference to
v. Island Ins. Co.,
civil obligations, or where there has been some wilful
992 P.2d 93 (Hawaii
misconduct or that entire want of care which would raise the
2000)
presumption of conscious indifference to the consequences”
Idaho
preponderance of the
“oppressive, fraudulent, wanton, malicious or outrageous
§ 6-1604
evidence; for actions
conduct”; for actions accruing after 7/1/03, delete “wanton.”
accruing after 7/1/03, clear
and convincing evidence
Illinois
punitive damages
735 ILCS 5/2-1115
prohibited
Indiana
clear and convincing
defendant “acted with malice, fraud, gross negligence, or
§ 34-51-3-2; USA
evidence
oppressiveness which was not the result of a mistake of fact or
Life One Ins. Co. of
law, honest error or judgment, overzealousness, mere
Indiana v. Nuckolls,
negligence, or other human failing”
682 N.E.2d 534 (Ind.
1997)
Iowa
“preponderance of clear,
“willful and wanton disregard for the rights or safety of
§ 668A.1
convincing, and
another”
satisfactory evidence”
Kansas
clear and convincing
“willful conduct, wanton conduct, fraud or malice”
§ 60-3701
evidence
Kentucky
clear and convincing
“oppression, fraud or malice”
§ 411.184
evidence
Louisiana
punitive damages
Naquin v. Fluor
prohibited
Daniel Services
Corp., 935 F. Supp.
847 (E.D. La. 1996)
Maine
clear and convincing
Malice, either express (where the defendant “is motivated by ill
St. Francis de Sales
evidence
will toward the plaintiff”), or implied (defendant’s conduct “is
Federal Credit
so outrageous that malice toward a person injured as a result of
Union v. Sun
that conduct can be implied.”) Implied malice is not established
Insurance Company
“by the defendant’s mere reckless disregard of the
of New York, 818
circumstances.”
A.2d 995 (Me. 2002,
revised 2003)
Maryland
clear and convincing
“evil motive, intent to injure, or fraud”
Owens-Illinois, Inc.
evidence
v. Zenobia, 601 A.2d
633 (Md. 1992)

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CRS-4
State and Citation
Burden of Proof
Standard
Massachusetts
preponderance of the
“malicious, willful, wanton or reckless conduct . . . or gross
Ch. 229, § 2;
evidence in wrong death
negligence”
Caperci v. Hutoon,
cases; punitive damages
397 F.2d 799 (1st Cir.
otherwise prohibited
1968).
Michigan
preponderance of the
“defendant commits a voluntary act which inspires feeling of
Jackson Printing
evidence
humiliation, outrage, and indignity”
Co., Inc. v. Mitan,
425 N.W.2d 791
(Mich. 1988)
Minnesota
clear and convincing
“deliberate disregard for the rights or safety of others”
§ 549.20
evidence
Mississippi
clear and convincing
“actual malice, gross negligence which evidences a willful,
§ 11-1-65(1)(a)
evidence
wanton or reckless disregard for the safety of others, or
committed actual fraud”
Missouri
clear and convincing
“conduct that is outrageous, because of the defendant’s evil
Altenhofen v.
evidence
motive or reckless indifference to the rights of others”
Fabricor, Inc., 81
S.W.3d 578, 590
(Mo. App. 2002)
Montana
clear and convincing
defendant “has knowledge of facts or intentionally disregards
§ 27-1-221
evidence
facts that create a high probability of injury to the plaintiff and:
(a) deliberately proceeds to act in conscious or intentional
disregard of the high probability of injury to the plaintiff; or (b)
deliberately proceeds to act with indifference to the high
probability of injury to the plaintiff”
Nebraska
punitive damages
Miller v. Kingsley,
prohibited
230 N.W.2d 472
(Neb. 1975)
Nevada
clear and convincing
“oppression, fraud or malice, express or implied”
§ 42.005
evidence
New Hampshire
punitive damages
§ 507:16
prohibited
New Jersey
clear and convincing
“actuated by actual malice or accompanied by a wanton and
§ 2A:15-5.12
evidence
willful disregard of persons who foreseeably might be harmed”

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CRS-5
State and Citation
Burden of Proof
Standard
New Mexico
preponderance of the
“malicious, willful, reckless, wanton, fraudulent or in bad faith”
Uniform Jury
evidence
Instructions — Civil
§ 13-1827
United Nuclear
Corp. v. Allendale
Mut. Ins. Co., 709
P.2d 649 (N.M.
1985)
see Randi A.J. v.
apparently unsettled
“intentional or deliberate wrongdoing, aggravating or
Long Island Surgi-
outrageous circumstances, fraudulent or evil motive, or
Center, 842
conscious act in willful and wanton disregard of another’s
N.Y.S.2d 558, 568
rights”
(2007); Pearlman v.
Friedman, Alpern &
Green, LLP, 750
N.Y.S.2d 869 (2002)
North Carolina
clear and convincing
“(1) Fraud. (2) Malice. (3) Willful or wanton conduct.”
§ 1D-15
evidence
North Dakota
clear and convincing
“oppression, fraud, or malice, actual or presumed”
§ 32-03.2-11
evidence
Ohio
clear and convincing
“malice, aggravated or egregious fraud, oppression, or insult”
§ 2315.21
evidence
Oklahoma
clear and convincing
“reckless disregard” (lower cap) or “intentionally and with
T. 23, § 9.1
evidence
malice toward others” (higher cap)
Oregon
punitive damages
§ 31.740
prohibited
Pennsylvania
preponderance of the
“willful or wanton conduct or reckless indifference to the rights
T. 40, § 1303.505
evidence
of others”
Rhode Island
preponderance of the
“defendant’s actions are so willfull, reckless, or wicked that
DelPonte v. Pusyka,
evidence
they amount to criminality”
615 A.2d 1018 (R.I.
1992)
South Carolina
clear and convincing
“malice, ill will, or conscious indifference to the rights of
§ 15-33-135; King v.
evidence
others, or a reckless disregard thereof”
Allstate Ins. Co., 251
S.E.2d 194 (S.C.
1979)

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CRS-6
State and Citation
Burden of Proof
Standard
South Dakota
“In any claim alleging
A jury, by a preponderance of the evidence, may award punitive
§ 21-1-4.1
punitive or exemplary
damages if it finds “oppression, fraud, or malice, actual or
§ 21-3-2
damages ... , before any
presumed.”
such claim may be sub-
mitted to the trier of fact,
“They allege that it would make no sense for a trial court to
the court shall find, after a
apply the clear and convincing evidence standard in deciding
hearing and based upon
whether the jury should even be permitted to determine punitive
clear and convincing
damages, and then turn around and allow the jury to apply a
evidence ... willful wanton
lesser standard in making such determination. We disagree.”
or malicious conduct ....”
Flockhart v. Wyant, 467 N.W.2d 473, 475 (S.D. 1991)
Tennessee
clear and convincing
“intentional, fraudulent, malicious, or reckless”
Hodges v. V.S.C.
evidence
Toof & Co., 833
S.W.2d 896 (Tenn.
1992)
Texas Civil Practice
clear and convincing
“(1) fraud; (2) malice; or (3) wilful act or omission or gross
and Remedies Code
evidence
neglect in wrongful death actions”
§ 41.003
Utah
clear and convincing
“willful and malicious or intentionally fraudulent conduct, or
§ 78-18-1
evidence
conduct that manifests a knowing and reckless indifference
toward, and a disregard of, the rights of others”
Vermont
preponderance of the
“conduct manifesting personal ill will, evidencing insult or
McCormick v.
evidence
oppression, or showing a reckless or wanton disregard of [a
McCormick, 621
party’s] rights”
A.2d 238 (Vt. 1993)
Virginia
clear and convincing
“Willful and wanton negligence [which] is defined as acting
Owens-Corning
evidence
consciously in disregard of another person’s rights or acting
Fiberglas Corp. v.
with reckless indifference to the consequences, with the
Watson, 413 S.E.2d
defendant aware, from his knowledge of existing circumstances
630, 640 (Va. 1992)
and conditions, that his conduct probably would cause injury to
another”
Washington
punitive damages
Stanard v. Bolin, 565
prohibited
P.2d 94 (Wash.
1977)
West Virginia
preponderance of the
“not only mean-spirited conduct, but also extremely negligent
TXO Prod. Corp. v.
evidence
conduct that is likely to cause serious harm”
Alliance Resources
Group, 419 S.E.2d
870 (W.Va. 1992)

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CRS-7
State and Citation
Burden of Proof
Standard
Wisconsin
“Before the question of
“The plaintiff may receive punitive damages if evidence is
§ 895.85;
punitive damages can be
submitted showing that the defendant acted maliciously toward
City of W. Allis v.
submitted to a jury, the
the plaintiff or in an intentional disregard of the rights of the
Wisc. Elec. Power
circuit court must
plaintiff.”
Co., 635 N.W.2d 873
determine ... that to a
(Wisc. App. 2001).
reasonable certainty the
conduct was ‘outrageous.’
... The evidence must also
be ‘clear and convincing.’”
Wyoming
preponderance of the
“Outrageous conduct, malice, and willful and wanton
McCulloh v. Drake,
evidence
misconduct”
24 P.3d 1162 (Wyo.
2001);
Alexander v.
Meduna, 47 P.3d 206
(Wyo. 2002)

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