For the most part, victims in medical malpractice and personal injury cases are only entitled to recover damages to make up for what they’ve lost and will lose in the future. These damages are called compensatory damages. They include damages for financial losses, such as loss of wages, lost earning capacity, the cost of medical bills. They also include non-economic types of loss and injury, such as pain and suffering and loss of enjoyment of life.

Punitive damages are different. They are not intended to compensate the victim, but to punish the wrongdoer. Punitive damages send a message to other potential bad actors: if your conduct is outrageous enough, you will be forced to pay more than the typical negligent defendant.

When Are Punitive Damages Awarded in Maine?

Each state has a different rule about when punitive damages are appropriate. In Maine, punitive damages are permitted only in the most horrific circumstances. Specifically, punitive damages are only allowed if there is “clear and convincing evidence” that the defendant acted with either “express malice” or “implied malice.”

Express and Implied Malice

“Express malice” is an easy concept to understand, but a hard thing to prove. Express malice exists where the wrongdoer’s conduct is motivated by hatred of the victim. If a woman sees a man she hates walking down the street and decides to run him over with her car, that’s express malice.

Express malice is hard to prove because it requires getting inside the head of the wrongdoer. In most cases,  punitive damages are sought based on “implied malice.”

What is implied malice? Unfortunately, the Maine Supreme Court hasn’t been crystal clear about that. According to the Maine Supreme Court, implied malice exists “where deliberate conduct by the defendant, although motivated by something other than ill will toward any particular party, is so outrageous that malice toward a person injured as a result of that conduct can be implied.” What conduct is “outrageous” enough to meet this standard? That’s where things get blurry.

A key factor appears to be whether the wrongdoer has knowledge that their conduct is likely to cause harm. For example, in a case called Long v. Orzechowski, a Superior Court judge allowed a plaintiff to ask the jury for punitive damages after she was attacked by the defendants’ pit bull. In its decision, the Court explained that the defendants knew that their dog was vicious, and that the dog had attacked other people before. Nonetheless, the defendants refused to keep their dog on a leash. According to the Court, this conduct was outrageous enough to merit punitive damages.

How Much Can a Jury Award in Punitive Damages?

Juries can award whatever amount of punitive damages they see fit. However, the United States Supreme Court has made it clear that large punitive damage awards can by unconstitutional. In a case called State Farm v. Campbell, the Court suggested that any punitive damage award more than nine times the amount of compensatory damages.

Punitive Damages Have a Downside

Let’s go back to our example of the driver who hits a pedestrian on purpose. Imagine the case goes to trial, and a jury awards the victim $200,000 in compensatory damages and $1 million in punitive damages. That means the victim gets $1 million more than she would have without the punitive damage claim. Punitive damages increased her award—right?

Not necessarily. It’s important to remember that most insurance policies do not cover punitive damages. Therefore, in our example, the victim may be able to recover $200,000 from the other driver’s insurance company, but the insurer won’t be on the hook for the punitive damage award. Perhaps the victim can collect from the defendant, but perhaps not. It depends on the assets the wrongdoer has.

But is that really a downside? If the victim had not asked for punitive damages, wouldn’t he have ended up with the same $200,000? Maybe, but maybe not. When they are deciding what to award the victim, the jury doesn’t know anything about the defendant’s insurance. They probably don’t realize that the punitive damage award will be impossible to collect on. And it’s possible that, if they hadn’t had the option of awarding punitive damages, they would have given more money for certain types of compensatory damages, such as pain and suffering.

Where Does That Leave Us?

In most cases, punitive damages aren’t an option. Even if the wrongdoer’s conduct was inexcusable, it may not be “outrageous” enough to warrant punitive damages under Maine law.

But in those cases where punitive damages are permissible, should the victim ask for them? The short answer is: it depends. Asking for punitive damages has risks and benefits, and every case is different.

If you have been the victim of truly outrageous misconduct, you should ask your lawyer whether he or she is seeking punitive damages, and to discuss with you the risks and benefits of doing so in your case.