Sometimes it is clear when there is one defendant healthcare provider who is liable for the medical malpractice. This could be because a nerve was severed by a surgeon, or an anesthesiologist overdosed a patient. In these instances, a victim will know what went wrong and who caused the medical malpractice. The victim will know who to proceed against and work to protect his or her rights to compensation.
However, sometimes it is much more complicated than that. Sometimes there can be many different healthcare providers which may have caused or contributed to the medical malpractice. Additionally, there can be medical malpractice for an omission, and there could be healthcare providers who did nothing but should have done something.
When this happens, the best practice is to sue all of the possible defendants and sort it out during disclosure. However, can multiple defendants be liable for medical malpractice?
The answer is YES!
If there are multiple negligent parties, there can be apportionment of the liability between the defendants. One defendant could be 50% at fault for your injuries, whereas other defendants could be only 20% and 30% liable. There can be any percentage, including 99% and 1%, or anywhere in between. Based on the percentage of liability, the defendant will pay that percentage of the damages verdict.
Where it gets interesting is collecting the verdict from that certain defendant. Under New York law, any defendant more than 51% liable is liable for the ENTIRE amount of the verdict. This means the plaintiff can collect 100% from the defendant that is only 51% liable. The main defendant will than have a claim for contribution against the other defendants. This means that the main defendant can go after the other defendants to collect the percentage above their share.
For example, if a jury awards $100,000 and finds Defendant A liable for 51%, Defendant B for 29%, and Defendant C for 20%, the Plaintiff can collect the full $100,000 from Defendant A. Since Defendant A would be paying more than his or her fair share, Defendant A can go after Defendant B for 29k and Defendant C for 20k. But Defendant A would still have to pay Plaintiff the $100k upfront. The Plaintiff could also collect per the percentages, so 51k from Defendant A, 29k from Defendant B, and 20k from Defendant C.
The policy for this is to ensure that a Plaintiff can be compensated against a Defendant who is the main proximate cause of the accident causing Plaintiff’s injuries. In the example above, if Defendant A was solvent and had a lot of money, but Defendant B and Defendant C were insolvent or judgment proof, it should not be the Plaintiff’s problem to not get paid for his or her injuries. It will be Defendant A’s problem for being the main cause. It is all about equity!
But what do you think? I would love to hear from you! Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected] You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.