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The Unanticipated Problems For Doctors With The Passage Of The Fair Share Act

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The new Fair Share Act passed earlier this year eliminates joint and several liability. Joint liability now only applies when a defendant is found at fault for not less than 60 percent of the total liability apportioned to all parties. Under the predecessor statute of joint and several liability, a legal doctrine that had ruled Pennsylvania since the Colonial era, a successful plaintiff could pursue a judgment against any one party as if it were jointly liable; it then became the responsibility of the defendants to sort out their respective proportions of liability and payment. Now, collection of the judgment is based on a defendant’s actual level of responsibility for an injury so long as that defendant is not found by the jury to be 60 per cent or more negligent vis a vis the other defendants.

But, in the medical malpractice context, the abolition of joint and several liability in fact exposes individual doctors to the risk of greater jeopardy to personal assets. Why? Typically the defendant doctor is sued as a corporation and as an individual actor. Under the old law, a total payment of the verdict (or settlement) would be made on behalf of the doctor and his corporate entity and paid by the defendant doctor’s corporate medical malpractice insurer. Case over. Under the current law, if that doctor is found less than 60 per cent negligent, the plaintiff can only collect on a pro rata portion of the verdict of that doctor’s negligence. In other words, with the enactment of the Fair Share Act, plaintiffs’ counsel clearly have a greater incentive, and legal obligation, for suing physicians individually and keeping those judgments on file in the courts indefinitely where excess verdicts, over and above the carrier’s policy limits, are obtained. Additionally, the Fair Share Act’s intent was to reduce exposure to medical defendants. But consider the likelihood that more defendants will have to be sued in order for plaintiffs’ counsel to try to identify the individual or corporate entity who may ultimately be the defendant who is 60 percent or more responsible for plaintiff’s injuries. That information is simply not known pre-suit, and can only accurately be determined after litigation is commenced and in the discovery portion of the case. More defendants will undoubtedly be sued than they otherwise would have been before the abolition of joint and several liability.

Who may these defendants be? They will be nurses, hospitals policy makers, administrators, and peripheral physicians who would otherwise not have been the focus of the lawsuit, but now will be, under the Fair Share Act.

The stated purpose of the Hospital and Health System Association of Pennsylvania was to get more doctors into the clutches of hospital employment equating to the consolidation and control of medical care by the large hospital corporations. And why wouldn’t a doctor want that? Clearly he or she would because as an employee of the hospital corporation the doctor not only does not have to worry about liability coverage, but the hospital corporation can purchase greater amount of coverage than the individual doctor could have or would have otherwise chosen.

The unrealized and unanticipated effects of the Fair Share Act will be played out in the Commonwealth’s courts for years to come, and unfortunately some physicians may find they do not like the results.

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