Court's Opinion Highlights Importance of Limiting Punitive Damages Instructions in Medical Negligence Cases

In Frost v. PCRMC Medical Group, Inc., the Court of Appeals for the Southern District of Missouri reviewed six points on appeal, two of which discussed the punitive damage instruction and award. In the underlying case, plaintiff Gregory Frost claimed that the negligence of his treating physicians at defendant PCRMC Medical Group caused him to become addicted to opioids.

Following a motorcycle accident in 2002, Frost developed chronic pain syndrome from his injuries. Frost treated his pain with a low dose opioid medication for about eight to nine years, before seeing any PCRMC Medical Group physician.

From 2011 until 2015, PCRMC Medical Group physician, Dr. Lebedowicz, treated Frost for his chronic pain as his primary care physician. During this time, Dr. Lebedowicz prescribed a pain regimen with daily opioid dosages increasing from 30 to 300 MME per day.[1]

Throughout this treatment, Frost informed Dr. Lebedowicz that he sometimes cut his prescribed fentanyl patches in half, used marijuana to help with his pain, used heroin and cocaine in the past, and tried to stop using the patches but failed. Dr. Lebedowicz advised Frost not to cut his prescribed patches. Dr. Lebedowicz also referred Frost to a pain specialist, neurosurgeon, sports medicine specialist, and orthopedist, but Frost only visited the pain specialist. While Dr. Lebedowicz also intended to refer Frost to a psychiatrist, this referral never occurred before Frost transferred to a different physician.

In 2015, PCRMC Medical Group physician, Dr. James, took over Frost’s primary care. During this treatment, Frost informed Dr. James that he had stopped using marijuana. Across four appointments in 2015-2016, Dr. James continued the same opioid pain regimen of 300 MME per day.

Following Dr. James, PCRMC Medical Group physician Dr. Vail treated Frost from 2016 until 2018. The same pain regimen continued until 2017, when Frost expressed to Dr. Vail that he wanted to stop taking fentanyl. To aid in this endeavor, Dr. Vail lowered Frost’s fentanyl dosage by fifty percent while maintaining the dosage of oxycodone. However, three months later Frost reported his medication did not control his pain. Dr. Vail reordered the fentanyl patches, which brought the opioid dosage to 250 MME per day.

In June 2018, Dr. Vail informed Frost that the opioid regimen was not a long-term solution to treat his pain. Frost disclosed that he had been obtaining unprescribed pain medication and cutting his fentanyl patches in half. Additionally, Frost explained that the surgery referral determined he was not a candidate for surgery to relieve his pain. Dr. Vail cautioned Frost not to use nonprescribed narcotics, referred him to physical therapy and pain management, and continued the opioid regimen.

In the following days, Frost called Dr. Vail’s office several times, “ranting and crying” that “the government [was] going to take his medications away from him.” Believing Frost was having a psychiatric crisis, Dr. Vail contacted a psychiatrist and requested the police conduct a wellness check. In the following visit, Dr. Vail diagnosed Frost with a narcotic addiction and provided pain management and psychiatric referrals.

After this incident, Dr. Vail required monthly check-ins and visits with the pain management and psychiatry referrals to refill any opioid prescriptions. Frost refused steroid injections recommended by the pain management specialist and instead requested Lyrica, a drug he had obtained without a prescription in the past. Frost also admitted he still used marijuana for pain. In November 2018, Dr. Vail gave Frost a termination notice.

At trial, the circuit court submitted both a negligence and punitive damages verdict director to the jury. The jury awarded $200,000 in compensatory damages and found that Frost was 90% at fault, while PCRMC Medical Group was 10% at fault. Additionally, the jury found PCRMC Medical Group liable for $500,000 in punitive damages. Along with other points raised on appeal, PCRMC Medical Group argued that it was error for the trial court to submit the verdict director for punitive damages because it was unsupported by clear and convincing evidence.

In Missouri, punitive damages are intended to punish and should be used only sparingly. Since 1986, Chapter 538 of the Missouri Revised Statutes has included a definition for punitive damages as those “intended to punish or deter willful, wanton or malicious misconduct.” § 538.205(11) (1986). Consistent with this definition, the Legislature intended that punitive damages may be awarded against a health care provider only “upon a showing by a plaintiff that the health care provider demonstrated willful, wanton or malicious misconduct . . . . § 538.210.8 (1986). Courts have interpreted this standard as being the same as “acting with a complete indifference to or in conscious disregard for the rights or safety of others.” Generally, punitive damages are not recoverable for negligent conduct, unless the “defendant knew or had reason to know that there was a high degree of probability that the action would result in injury.” Additionally, there must be clear and convincing proof of this conduct for the court to submit a punitive damages verdict director.[2] 

Ultimately, the Court of Appeals found that the alleged conduct by PCRMC Medical Group physicians did not support a punitive damages verdict director or award and reversed the punitive damage award.

The Court distinguished Frost’s care with that of a past opioid case, Koon v. Walden. In the Koon case,the court found punitive damages were appropriate for the reckless prescription of opioids. There, the total prescribed daily dosage was 1,555.94 MME, which far exceeded the pain regimen of 300 MME prescribed to Frost.

The appellate court agreed that Dr. Lebedowicz knew or should have known that Frost exhibited certain risk factors for opioid addiction, such as failing to meet with a pain management specialist and past usage of unprescribed narcotics. However, these were merely risk factors, not clear indicators that a failure to act would naturally and probably cause injury to Frost. Later in Frost’s treatment, Dr. Lebedowicz addressed other concerning conduct by instructing Frost not to cut his fentanyl patches. The court noted that this intervention by Dr. Lebedowicz illustrated a lack of complete indifference to Frost’s safety.

During the time Frost showed signs of addiction, Dr. Lebedowicz referred him to a neurosurgeon, sports medicine specialist, orthopedist, and pain management specialist while continuing his opioid regimen. The court found that even if Dr. Lebedowicz should have started tapering off Frost’s opioid prescription when Frost showed signs of addiction instead of waiting until a viable non-opioid pain management solution was in place, this decision, while possibly incorrect or negligent, did not suggest a complete indifference or conscious disregard for Frost.

Finally, the court determined that Dr. Lebedowicz’s failure to refer Frost to a psychiatrist when his treatment was transferred to Dr. James, while possibly negligent as Dr. Lebedowicz testified he intended to make this referral, certainly was not “something tantamount to intentional wrongdoing.”

Like Dr. Lebedowicz, Dr. James did not show complete indifference to the safety of Frost. Despite risk factors for addiction previously shown by Frost, Dr. James only knew or had reason to know of Frost’s past use of marijuana at the start of treatment. However, Frost told Dr. James he had quit, and did not exhibit any other concerning behavior during treatment.

Similarly, Dr. Vail did not show a complete indifference to the safety of Frost during his treatment. In response to Frost’s concerning behavior, Dr. Vail diagnosed Frost with a narcotic addiction, made appropriate referrals, and required monthly check-ins for opioid refills.

In addition to the alleged negligence by individual physicians, Frost argued that PCRMC Medical Group as an organization demonstrated a complete indifference to the safety of patients who were prescribed opioids because it did not have policies or procedures concerning chronic opioid use. In Koon, the medical entity knew about the opioid crisis yet saw no basis to supervise opioids differently from other medications, suggesting that the entity was simply unwilling to implement a new policy. Here, however, PCRMC Medical Group noted the impracticality and impossibility of an opioid prescription policy because of the group’s multispecialty nature, which failed to show the complete indifference illustrated in Koon.

Noting that punitive damages is a harsh remedy, the Court of Appeals found that the alleged actions or inactions by PCRMC Medical Group and its physicians were not enough to warrant punitive damages. Further, because the punitive damages verdict director was improper, the Court of Appeals reversed the $500,000 punitive damage award.