concurring.
I agree that plaintiff is entitled to a peremptory writ, and I agree with the majoritys interpretation of the word “malice” in ORS 18.550(2). I write separately, however, to identify the consequences of that interpretation because the legislature may not have intended them.
The majority opinion correctly notes that the legislature adopted ORS 18.550(2) in 1987 and that that statute prohibits the award of punitive damages against certain licensed health practitioners if “the health practitioner was *220engaged in conduct regulated by the license * * * and was acting within the scope of practice for which the license * * * was issued and without malice .” (Emphasis added.) The majority opinion also correctly points out that the legislature did not define the term “malice” in ORS 18.550(2) and that the term, as it relates to punitive damages, previously had been defined in this court’s cases. That definition, as the majority opinion states, includes tortious conduct so reckless as to be in disregard of social obligations. For those reasons, I agree with the majority’s interpretation of ORS 18.550(2).
What the majority opinion fails to make clear, however, is the result that follows from those conclusions, viz., that, if the legislature intended, by enacting ORS 18.550(2), to change the standard required to obtain an award of punitive damages against a health practitioner by requiring a showing of “malice,” it failed in that effort. As the majority demonstrates, under this court’s punitive damages cases, the term “malice” encompasses the different kinds of wrongful conduct that traditionally have justified a jury awarding punitive damages, whether that conduct was intentionally wrongful, “wicked,” “wanton,” or recklessly in disregard of social obligations. By using the word “malice,” then, the legislature essentially stated a tautology: No punitive damages could be recovered unless punitive damages could be recovered.
Defendant asserts that the majority’s interpretation of ORS 18.550(2) “would render the statute purposeless.” It argues that this court should reject such an interpretation because the statute and the legislative history demonstrate that the legislature intended “to limit punitive damage awards against healthcare professionals.” Defendant cites 1000 Friends of Oregon v. Wasco County Court, 299 Or 344, 358, 703 P2d 207 (1985), for the proposition that this court should not “deem a legislative act meaningless unless no other reasonable conclusion is available.”
It is not unreasonable to suggest, as defendant does, that the legislature would not have adopted ORS 18.550(2) unless it intended to change the law regarding the award of punitive damages against health practitioners. Moreover, the legislative history, which both parties discuss in their *221briefs to this court, supports the proposition that at least some members of the committee that drafted the bill that became ORS 18.550(2) expected that they were changing the law. (As plaintiff points out, ORS 18.550 was part of a larger “tort reform” bill that included a “cap” on noneconomic damages.)
It remains, however, that, in amending the statute, the legislature used a legal term — “malice”—without defining that term and, according to the legislative history, with an understanding of the way that the Oregon courts previously had used that term. Absent a separate definition of the term, the legislature must be deemed to have meant to use the term in that traditional, well-understood sense. That being the case, the lead opinion’s conclusion on this issue is inescapable.
Gillette, J., joins in this concurring opinion.