New York’s current rule of joint and several liability means that in some cases a defendant who is only 1% at fault can be forced pay 100% of the judgment. If the defendant who is 99% at fault cannot pay, the financially solvent defendant must pay the entire award. This is often called the “deep pocket rule” as plaintiffs’ attorneys will look for the defendant with the most money to go after. Rather than risk paying 100% of a judgment, many defendants will settle out of court, more often than not paying out more than what they are actually responsible for.
This practice is completely unjust as it can allow culpable defendants to get off scot-free, while putting a large financial burden a party who is minimally at fault.
Earlier this summer, PA Gov. Corbett signed the Fair Share Act into law, bringing joint and several liability reform to Pennsylvania.
The Fair Share Act brings a degree of fairness to Pennsylvania’s legal system. It maintains a person’s right to collect damages in a civil lawsuit while ensuring each defendant’s level of financial responsibility is assessed in a fair and equitable manner, as determined by a judge or jury. A recent article explains that this new law brings fairness to malpractice suits. The author, a CEO and President of a hospital, explains – “It will help reduce exorbitant legal and malpractice insurance costs paid by Pennsylvania health care providers resulting from frivolous lawsuits filed by plaintiffs and their lawyers seeking to “win the lottery” in a litigious climate where degree of liability had no bearing on degree of financial responsibility in a civil lawsuit.”
In 1986, New York modified its rule of Joint and Several liability, to bar its application for defendants who are 50% at fault or less. While this was a major step forward, the law included some major exemptions which significantly limited its effectiveness. For example, motor vehicle cases, the most common type of tort claim, are excluded. New York should eliminate the doctrine of joint and several liability and replace it with the rule of proportional liability, also called “fair share liability”, in which defendants are financially responsible only for the percentage of the award for which they were at fault. This is simple common sense – a person who is 1% at fault should only be responsible for paying 1% of the damages.
Enacting this reform in our state would bring fairness to our justice system, not only in instances of medical malpractice, but across the board.
LRANY is fighting to bring Fair Share Liability to New York!