The purpose of this Note is not to answer the question of how excessive medical malpractice and punitive damage awards are. Many highly respected scholars on different sides of the issue have spent large portions of their careers trying to resolve that issue without finding a common ground. This author does not boldly claim to provide an answer in this limited forum. This Note does, however, address a possible source of public frustration with the state of medical malpractice and punitive damages: the lack of a principled basis for the awards that juries give to the victims. The perception among many average citizens is that all the parties involved-plaintiffs, lawyers, doctors, hospitals-try to get their proverbial piece of the pie. This Note demonstrates that this perception of the medical malpractice tort system has some validity because current treatment of punitive damages does not serve the goals of the civil system. This Note also offers charitable donations of punitive damage awards as an alternative to the current approaches. Unlike traditional approaches to medical malpractice punitive damages, charitable donations of punitive damages would not suffer from the same problems of excessive compensation to the plaintiff, insufficient deterrent of the defendant, or the constitutional problems associated with government claims on punitive damages in split statute jurisdictions. Part II of this Note discusses the common sense goals of compensation, deterrence, and punishment that all areas of our legal system strive to accomplish. Part III of this Note shows how the current status of punitive damages fails to meet these goals. Specifically, Part III demonstrates that allowing victims of medical malpractice to keep punitive damage awards overcompensates plaintiffs, that placing caps on punitives underdeters wrongful conduct, and that split statutes - while an improvement - suffer from both of these problems to a lesser degree. Part IV offers charitable donations as an alternative to these common approaches and shows how this approach provides for appropriate punishment and deterrence of wrongful acts, a principled amount of compensation to the victim, and the greatest benefit for the greatest number of people.
Note, Tis Better to Give Than to Receive: Charitable Donations of Medical Malpractice Punitive Damages, 12 J.L. & Health 141 (1997-1998)