Tis Better to Give Than to Receive: Charitable Donations of Medical Malpractice Punitive Damages

"Virtue down the middle," said the Devil as he sat between two lawyers.(1) It is difficult on principle to understand why, when the sufferer by a tort has been fully compensated for his suffering, he should recover anything more. And it is equally difficult to understand why, if the tortfeasor is to be punished by [punitive] damages, they should go to the compensated sufferer ....(2) Charity is the most noble of virtues .... [I]f one has charity in this life, he has it completely and perfectly.(3) I. INTRODUCTION As the story goes, in 1986, a Philadelphia jury awarded $1 million to a "spiritual advisor" who claimed, in a medical malpractice case, to have lost her psychic powers as a result of a negligently administered CAT scan.(4) In another case, a jury awarded $98.(5) million in punitive damages to the mother of an infant born a spastic quadriplegic because nurses did not quickly enough diagnose complications in the delivery.(5) In yet another case, a jury awarded a man $124,573,750 in punitive damages in addition to $3,047,819 in compensatory damages for the loss of his eye caused by a negligently administered injection.(6) We have all heard the stories. Medical malpractice awards are like a recurring dream with a bad theme: the system is out of whack. More specifically, the common perception is that punitive damages in medical malpractice claims contribute greatly to health care costs that have soared to crisis levels.(7) Regardless of whether these beliefs are well-founded,(8) concerns over punitive damages in medical malpractice claims have emerged to the forefront of political debate and the national agenda in the past decade.(9) For example, while discussing rising health care costs, President Clinton noted that "more people talk to me about their health care problems ... than anything else."(10) This support for tort reform formed the foundation of House Republicans' Contract with America and the Common Sense Legal Standards Reform Act vetoed by President Clinton.(11) A near-consensus has formed among average citizens that our tort system needs serious reform.(12) What is not so clear is who to blame for these seemingly out-of-control awards. All groups involved have received some criticism: doctors,(13) greedy plaintiffs,(14) the health care industry,(15) judges,(16) juries,(17) and lawyers.(18) Some critics blame everyone equally.(19) In a single column, one newspaper journalist blamed plaintiffs who receive "windfall" awards; "overly sympathetic juries" who grant "excessive awards; .... sharp lawyers" with "political clout" who think "the sky is the limit;" the "incomprehensible logic of bureaucrats;" the "vagaries of judges; .... powerful businesses" who get "special treatment;" lobbyists who peddle influence; and the entire tort system that resembles a "lottery" for all involved.(20) A continuum of responses has formed which addresses this perceived problem. A small minority of voices claim that the current status of the medical malpractice tort system functions adequately to address parties' needs.(21) According to one commentator, "the major malpractice problem continues to be malpractice."(22) Indeed, some recent studies provide evidence that, contrary to common perception, jury awards in medical malpractice cases are not excessive.(23) Furthermore, judges often quietly reverse or reduce well-publicized, seemingly excessive jury verdicts.(24) Other commentators have conceded that jury awards in medical malpractice cases somewhat favor plaintiffs but argue that the problem is not nearly as extreme as it has been portrayed.(25) Some scholars have recognized that supporters and critics of medical malpractice tort reform each have persuasive data supporting their respective positions.(26) From the large majority of voices that call for change, reform proposals vary greatly. …