Rx & The Law

Joint and Several Liability

by Don R. McGuire, Jr., R.Ph., J.D.
General Counsel
Pharmacists Mutual Insurance Company

Previous articles in this series have dealt with the elements of negligence and the concept of comparative fault.  This edition will deal with another closely-related concept, Joint and Several Liability.  Joint and Several Liability may apply only when there are multiple defendants in a case.  We have seen this in our cases when a pharmacy is a co-defendant with a physician and/or a hospital.

The concept of Joint and Several Liability allows a plaintiff to sue some or all of the defendants together, or to sue each one separately.  If the plaintiff wins their case, the plaintiff may collect equal or unequal amounts from each defendant.  While the plaintiff has a choice from whom to collect their judgment, the plaintiff cannot collect more than the total amount of the judgment.

The reason for Joint and Several Liability is to increase the chances that an injured person can collect the money they are due.  It allows the plaintiff to collect from the more solvent or better insured defendant.  For example, a pharmacy and a physician are co-defendants in a case.  The jury renders a verdict for $100,000 and assigns 75% of the fault to the physician and 25% to the pharmacy.  But if the physician is bankrupt and/or not insured, the plaintiff could then attempt to collect the entire $100,000 from the pharmacy.  While this may be seen as unfair from the pharmacy’s point of view, the system is set up to maximize the chances for the injured person to be compensated.

Joint and Several Liability is governed by state law and as you might expect, there is a lot of variation in how the concept is applied in each state.  Generally, the majority of states do not apply the concept, but then create 2 exceptions where Joint and Several Liability does apply.  The exceptions that most states allow are when the defendants act in concert (as in a conspiracy) or when 1 person acts as the agent or servant of another. 

There are a number of singular exceptions where it also applies.  In Illinois, general negligence cases are not Joint and Several, but medical malpractice cases are (medical malpractice usually includes cases against pharmacies).  However, in West Virginia, medical malpractice is specifically not Joint and Several.  Michigan medical malpractice cases allow Joint and Several Liability if the plaintiff is found to be without fault.

Other states apply Joint and Several Liability depending on the percentages of fault attributed to the parties under Comparative Fault.  For example, in Iowa, Joint and Several Liability doesn’t apply if a defendant is 50% or less at fault.  Minnesota does apply it if a defendant is more than 50% at fault.  In Missouri, it is applied if a defendant is more than 51% at fault.  New Jersey raises the ante and applies Joint and Several Liability if a defendant is 60% or more at fault.

Nebraska takes a rather unique approach.  It applies Joint and Several Liability to economic damages (e.g., medical expenses, lost wages, etc.), but not for non-economic damages (e.g., pain and suffering).  Two other states have a different approach.  Joint and Several Liability generally doesn’t apply in Connecticut and Oregon, unless amounts of the judgment are uncollectible.  The uncollectible amount is reallocated amongst the remaining defendants based on their percentage of fault.  However, this reallocation won’t occur in Oregon to a defendant who is 25% or less at fault or whose fault is equal to or less than the fault attributed to the plaintiff.

As you can see, Joint and Several Liability is intricately involved with the concepts of negligence and comparative fault.  In many cases, its application is dependent on comparative fault.  This basic concept can take many forms and applications depending on the law of the jurisdiction where the case is heard.  It is just one factor to consider in defending and/or settling negligence claims.  Failure to consider Joint and Several Liability early could lead to a significant financial impact once the judgment is entered.