On June 9, 2017 the Appellate Division, Fourth Department upheld a lower Court's decision to allow the plaintiff a jury trial to decide whether a surgeon can be held liable for punitive damages. Medical malpractice cases rarely result in punitive damages and such damage claims are typically dismissed long before any trial.

The plaintiff-patient claimed that the surgeon inserted a chest tube to treat his pneumothorax and deliberately refused to administer morphine to ease the pain of that procedure. The surgeon claimed that he was concerned that morphine would negatively impact on his patient's blood pressure and oxygen saturation levels. Morphine slow's one's breathing rate.

Medical malpractice claims are almost universally premised on claims of carelessness or negligence as opposed to malicious or willful conduct. When a malpractice claim is proven at trial the patient is awarded compensatory damages typically covered by insurance. Punitive damages are not covered by insurance and are not awarded against a doctor or hospital unless it can be proven that the wrongful conduct was outrageous, willful and/or malicious.