When Multiple Parties Are Liable for Medical Malpractice

"Joint and several liability" may determine who pays - and how much - when more than one defendant is liable in a malpractice lawsuit.

When more than one party was negligent -- perhaps a doctor and nurse, or an anesthesiologist and the hospital itself -- the legal concept of "joint and several liability" may come into play. Joint and several liability is a combination of two different theories of liability -- ways of holding a defendant legally responsible for medical malpractice, in other words -- when more than one person or entity may be liable. In this article, we'll explain the concept of joint and several liability and how it can impact a medical malpractice case.

What is Joint and Several Liability?

We first need to explain two competing concepts of legal liability: joint liability on the one hand, and several liability on the other.

Joint liability is liability that is shared by two or more defendants. This means that, for two or more defendants to be found jointly liable for medical malpractice, they had to have acted in common to cause the harm. An example of joint liability in a medical malpractice case is two surgeons who are both performing an operation. They agree to do the operation in a certain way, which turns out to be the wrong way, and the patient is injured. The surgeons would usually be found to be jointly liable for the patient's damages.

The significance of joint liability is that each defendant who is found jointly liable for an injury is responsible for paying all of the plaintiff's damages. The plaintiff cannot recover twice for the same injury, of course, but he/she can go from joint defendant to joint defendant until he/she has recovered all of his/her damages.

Several liability is the opposite of joint liability. Several liability is defined as liability that is separate and distinct from another party's liability. In other words, if multiple parties are severally liable to the plaintiff, the plaintiff can bring a separate lawsuit against one defendant without joining the other potentially liable parties. Even if severally liable defendants are sued in the same lawsuit, they are only liable to the plaintiff up to the limit of the damage that they caused.

An example of several liability in a medical malpractice case would be two separate, unrelated, negligent actions. For example, the surgeon could negligently injure the patient during the surgery, and a different physician could negligently injure the patient later that day.

Joint and several liability combines the two and is defined as liability that may be apportioned either among all of the jointly liable defendants or to less than all of the jointly liable defendants, at the plaintiff's discretion, and regardless of the percentage of fault assigned to any of the defendants.

Let's take an example. If a plaintiff wins a $600,000 judgment against three defendants who are found to be jointly and severally (and equally) liable, the plaintiff can choose to collect the entire judgment from just one of the defendants, from two of the defendants, or from all three of the defendants, in whatever split the plaintiff desires, even though each defendant was found to be 1/3 liable. If the plaintiff wishes, he/she can collect $500,000 from defendant A, $75,000 from defendant B, and $25,000 from defendant C. Or the plaintiff could collect 1/3 from each defendant. It is completely up to the plaintiff how he/she will enforce the judgment.

If, however, the defendants pay more than their proportionate share of the judgment, they can sue each other for what is called "contribution" to even out the judgment. So, if the jury found all three defendants in our example to be equally liable for medical negligence, and defendant A pays the entire judgment instead of just 1/3 of the judgment ($200,000), defendant A can sue defendants B and C for $400,000.

How a Patient's Compensation is Affected

One of the most important things to know about joint and several liability is that the law in each state is different. So, to find out what the joint and several liability law is in your state, you should do some legal research or contact a personal injury lawyer in your state.

But, as a general rule, joint and several liability laws are favorable to medical malpractice victims (and unfavorable to doctors and insurance companies). This is because joint and several liability laws could allow victims of medical malpractice to collect the full judgment from a co-defendant who was a little as 1% liable, depending on how the law was written. It would then be up to the defendant who paid the entire judgment to try to get some money back from the other defendants.

Naturally, medical malpractice insurance companies, who typically end up paying the judgments in medical malpractice cases, do not like joint and several liability laws and push to have them repealed.

It's important to note that joint and several liability only comes into play in a case when one or more of the defendants is uninsured, underinsured, has no money, or defaults. If all of the defendants in a lawsuit show up, defend the case, and have enough money or insurance to pay any judgment that might be entered against them, the plaintiff will not have to resort to demanding that any one defendant pay more than his/her share of the judgment. It is only when a defendant doesn't have enough money or insurance to cover his/her proportionate share of the judgment that the joint and several liability rule will become important.

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