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Punitive Damages in NY: Are they available? What are they? Who actually pays?

The short answer is generally "No."

The longer answer is still "No," but there may be exceptions.

Let me explain.

Punitive damages punish someone for their conduct. That's the goal.

Compensatory damages are what you typically see and hear about including pain and suffering (commonly known as non-ecomonic losses) and economic loss- the financial loss you suffered because of someone's carelessness. In claims of accidents or negligence, medical malpractice or wrongful death, compensatory damages are usually covered by insurance that the wrongdoer has.

If a claim is brought for punitive damages, the claim will allege that the wrongdoer intentionally committed the harm. Intentional acts are totally different than those caused by carelessness. In every single insurance policy that provides a level of insurance coverage for claims and acts of negligence, medical practice or wrongful death, those policies always exclude intentional acts.

What does that mean?

It means that if your allegations are that someone intentionally did something to cause harm to you, there will be no available insurance to provide coverage if you are successful with your lawsuit.

That means that you might win a punitive damages claim, but would be severely challenged to try and collect personally from the individual who caused your intentional harm.

That means you would have a hollow victory or some type of award or judgment but not be able to collect the money from someone who does not have the assets to pay.

As a general public policy it is extremely difficult and challenging to successfully obtain a punitive damages award in New York lawsuit for negligence, accidents, medical malpractice or wrongful death. That's not to say it cannot happen, but the chances of it happening successfully are extremely low.

Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer