If patient tries to make such a showing but fails, the patient must pay the plan's legal fees and costs. In the trial, patient must be careful not to submit any evidence that is relevant only to whether punitive damages are appropriate, no matter how difficult it would be to separate evidence relevant to liability and damages generally from evidence relevant to punitive damages. May be able to recover punitive damages in limited circumstances 1. Punitive damages would be decided in a separate legal proceeding. Common standards like reckless indifference or malice would apparently not suffice.
Punitive damages are available only when the plan fails to follow the initial external review.
Special lower caps for defendants who are individuals or small businesses. 3 Recourse to this second external review is at the option of the plan. Either party may opt to require separation of the punitive damages phase of the trial from the rest of the trial. The bill also creates a special exception, which allows the court to award additional punitive damages in limited circumstances, but any additional award is subject to the same cap.