On February 3, 2017, in Hernando HMA v. Erwin, No. 5D16-2835, the 5th DCA denied the defendant hospital's petition for writ of certiorari to quash the trial court's order granting a medical negligence plaintiff leave to amend his complaint to assert a claim for punitive damages.
Under Fla. Stat. 768.72, a claim for punitive damages is not permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The statute provides that the rules of civil procedure are to be liberally construed so as to allow discovery on this issue and that a claimant may then move to amend his or her complaint to add the claim. A defendant may be held liable for punitive damages only if there is clear and convincing evidence of the defendant's intentional misconduct or gross negligence. Where an employer is being sued for an employee's conduct, the employer must additionally have either (1) actively and knowingly participated in the conduct; (2) knowingly condoned, ratified or consented to the conduct; or (3) themselves engaged in grossly negligent conduct that contributed to the plaintiff's damages.
In seeking certiorari relief, the defendant argued that the trial court had erred by relying on a 2005 case, which had been decided prior to the amendment of Fla. Stat. 768.72 to impose a higher standard of proof with regard to an employer (requiring proof of gross negligence rather than ordinary negligence under the third prong discussed above). The 5th DCA denied the defendant's petition on procedural grounds, noting that the defendant had not made an objection with regard to this issue before the trial court, noting that "[g]enerally a petitioner cannot raise in a petition for writ of certioari a ground that was not raised below."