Malpractice: If you're the deepest pocket

September 2, 2005

Efforts to abolish "joint-and-several liability" pit organized medicine against the plaintiffs' bar. What does it mean to you?

Suppose you and two colleagues are co-defendants in a malpractice suit that results in a $3 million verdict for the plaintiff. Depending on which state you practice in, you could be held liable for the full $3 million-even if the jury found you responsible for only one-third of the patient's injuries.

Why? Because under the common-law doctrine of "joint-and-several liability," each defendant in a malpractice case can be held jointly or individually liable for the entire amount of the damages awarded to the plaintiff-regardless of his actual degree of liability. (Depending on a medical group's legal structure, that liability might extend to the defendant's physician-partners, as well.)

The answer, tort reformers suggest, is to replace joint-and-several liability with proportional liability. Under this principle, each defendant is responsible only for his own share of the damages as determined at trial.

What does such a change mean to individual doctors? Do average awards drop? Do fewer physician defendants find their personal assets at risk? Or is it possible that joint-and-several liability doesn't really have the impact on doctors that tort reformers claim it does? To find out, we talked to malpractice attorneys and insurance executives to see what's happened in those states that have already abolished or modified their joint-and-several liability laws.

Legal and consumer groups defend the status quo

Plaintiffs' lawyers, led by the Association of Trial Lawyers of America, have vigorously fought attempts to abolish joint-and-several liability because they want the right to go after any or all defendants-regardless of their degree of fault. Only that way, they argue, can they collect adequate compensation for their injured clients if one or more of the defendants is underinsured or unable to pay his proper share of the damages. As ATLA argues on its Web site, "Elimination of joint-and-several liability . . . would force a plaintiff to sue all possible parties responsible for an injury to have any chance of recovering all damages," thereby increasing the likelihood of complex suits against multiple defendants.

Public Citizen, a consumer advocacy organization, also defends joint-and-several liability. It admits that such laws may be unfair if one defendant ends up paying a disproportionate share of the damages because of his deeper pockets or a co-defendant's insufficient coverage. The group claims, however, that "it would be much more unjust if the victim who was injured by all of the wrongdoers would not receive the resources needed to rebuild his or her life."

Does proportional liability actually help doctors?

Despite the heated battles over joint-and-several liability, there's no easy way to measure the effect of the change to proportional liability. One reason is that the move has typically been part of a larger legislative package that includes a variety of other tort reforms.