Medical Liability/Malpractice Joint and Several Liability Statutes

Heather Morton 4/21/2014

Table of Contents

Contact

Under state law, a patient may pursue a civil claim against physicians or other health care providers, called medical liability or medical malpractice, if the health care provider causes injury or death to the patient through a negligent act or omission. To recover damages, the patient must establish:

  1. The physician owed a duty to the patient.

  2. The standard of care and that the physician violated that standard.

  3. A compensable injury.

  4. The violation of the standard of care caused the harm suffered by the patient.

In medical liability and malpractice claims, state law determines whether defendants are responsible for damages jointly or severally. Under the joint and several liability doctrine, if a plaintiff sues three defendants and the court rules that the defendants are responsible for the plaintiff's injuries, the plaintiff can recover the damages from all of the defendants or one of the defendants, if two of the defendants cannot pay the damages. Under the several liability doctrine, defendants are responsible for their proportionate share of the damages. 

This page summarizes the state laws that determine in medical liability and malpractice cases whether plaintiffs can recover damages from multiple defendants individually or as a group.  

Twenty-six jurisdictions allow for joint and several liability (13 regular, 13 modified). California has modified joint liability, seventeen jurisdictions have several liability and nine jurisdictions have modified several liability. The District of Columbia provides for joint and several liability for compensatory damages and several liability for punitive damages.

The box allows you to conduct a full text search or use the dropdown menu option to select a state.

State: Statutory Citation: Summary of Provision:
Alabama   Joint and several liability.
Alaska Alaska Stat. §09.17.080 Several liability. The court shall enter judgment against each party liable on the basis of several liability in accordance with that party's percentage of fault.
Arizona Ariz. Rev. Stat. Ann. §12-2506 Several liability. The liability of each defendant is several only and is not joint, except that a party is responsible for the fault of another person, or for payment of the proportionate share of another person, if any of the following applies: 1.) Both the party and the other person were acting in concert. 2.) The other person was acting as an agent or servant of the party. 3.) The party's liability for the fault of another person arises out of a duty created by the federal employers' liability act, 45 U.S. Code §51.
Arkansas Ark. Stat. Ann. §16-55-201 Several liability. Defendants are proportionally liable for damages awarded according to percentage of fault. To determine the amount of judgment to be entered against each defendant, the court shall multiply the total amount of damages recoverable by the plaintiff with regard to each defendant by the percentage of each defendant's fault; the amount shall be the maximum recoverable against that defendant.
California Cal. Civil Code §1431.2 Modified joint liability. Defendants are proportionally liable for noneconomic damages according to percentage of fault.
Colorado Colo. Rev. Stat. §13-21-111.5 Several liability. Defendants are proportionally liable for damages awarded according to percentage of fault, unless act proved deliberate.
Connecticut Conn. Gen. Stat. §52-572h Modified several liability. Defendants are proportionally liable according to percentage of fault for damages awarded. If, within one year of final judgment, the damages are uncollectible, then court may reallocate the liability for the uncollected portion of the judgment based upon the other joint tortfeasors' relative degrees of fault.
Delaware   Joint and several liability.
District of Columbia   Joint and several liability for compensatory damages and several liability for punitive damages. Defendants are proportionally liable according to percentage of fault for punitive damages awarded. See Remeikis v. Boss & Phelps, Inc., 419 A.2d 986 (D.C. 1980).
Florida

Fla. Stat. §768.81

 

Fla. Stat. §766.112

 

 

 

Fla. Stat. §766.207

Several liability. The court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability.

The court shall enter judgment against the teaching hospital on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability. The court shall enter judgment against the board of trustees on the basis of the board's percentage of fault and not on the basis of the doctrine of joint and several liability.

Each defendant who submits to voluntary binding arbitration under this section to determine damages shall be jointly and severally liable for all damages assessed pursuant to this section.
Georgia

Ga. Code §51-12-31

 

 

 

Ga. Code §51-12-33

Several liability. Except as provided in §51-12-33, where an action is brought jointly against several persons, the plaintiff may recover damages for an injury caused by any of the defendants against only the defendant or defendants liable for the injury. In its verdict, the jury may specify the particular damages to be recovered of each defendant. Judgment in such a case must be entered severally.

Multiple defendants liable for apportioned damages according to percentage of fault of each person. Damages reduced by court in proportion to percentage of fault if plaintiff is found partially responsible for injury. Plaintiff not entitled to receive any damages if found 50 percent or more responsible for injury.
Guam   Joint and several liability.
Hawaii Hawaii Rev. Stat. §663-10.9 Modified joint and several liability. Joint and several liability for economic damages. Several liability for noneconomic damages: When negligence is less than 25 percent, noneconomic damages awarded in proportion according to degree of fault.
Idaho Idaho Code §6-803 Modified several liability. Defendants are proportionally liable according to percentage of fault for damages awarded, except in cases where the defendants were acting in concert or when a person was acting as an agent or servant of another party.
Illinois Ill. Rev. Stat. ch. 735, §5/2-1117 Joint and several liability.
Indiana Ind. Code §34-51-2-1 Joint and several liability.
Iowa Iowa Code §668.4 Modified joint and several liability. The rule of joint and several liability shall not apply to defendants who are found to bear less than 50 percent of the total fault assigned to all parties. However, a defendant found to bear 50 percent or more of fault shall only be jointly and severally liable for economic damages and not for any noneconomic damage awards.
Kansas Kan. Stat. Ann. §60-258a Several liability. Defendants are proportionally liable according to percentage of fault.
Kentucky Ky. Rev. Stat. §411.182 Several liability. Defendants are proportionally liable according to percentage of fault.
Louisiana La. Civil Code Art. 2324 Several liability. Defendants are liable only for percentage of fault unless they conspire to commit an intentional or willful act.
Maine Me. Rev. Stat. Ann. tit. 14, §156 Joint and several liability. In a case involving multiparty defendants, each defendant is jointly and severally liable to the plaintiff for the full amount of the plaintiff's damages. However, any defendant has the right through the use of special interrogatories to request of the jury the percentage of fault contributed by each defendant.
Maryland   Joint and several liability.
Massachusetts   Joint and several liability.
Michigan Mich. Comp. Laws §600.6304 Modified joint and several liability. If the plaintiff is determined to be without fault, the liability of each defendant is joint and several. If the plaintiff is determined to have some percentage of fault and if, within six months of final judgment, the damages are uncollectible, then the court may reallocate the liability for the uncollected portion of the judgment based upon the other joint tortfeasors' relative degrees of fault.
Minnesota Minn. Stat. §604.02 Modified joint and several liability. Defendants are proportionally liable according to percentage of fault for damages awarded, except when defendant is assessed greater than 50 percent of fault, two or more persons act in common scheme or plan that results in injury, or a person is proven to have committed an intentional tort. If, within one year of final judgment, the damages are uncollectible, then the court may reallocate the liability for the uncollected portion of the judgment based upon the other joint tortfeasors' relative degrees of fault.
Mississippi Miss. Code Ann. §85-5-7 Modified several liability. Defendants are proportionally liable according to percentage of fault for damages awarded, except joint and several liability shall be imposed on all who consciously and deliberately pursue a common plan or design to commit a tortious act, or actively take part in it.
Missouri Mo. Rev. Stat. §537.067 Modified joint and several liability. If a defendant is found to bear 51 percent or more of fault, then such defendant shall be jointly and severally liable for the amount of the judgment rendered against the defendants. If a defendant is found to bear less than 51 percent of fault, then the defendant shall only be responsible for the percentage of the judgment for which the defendant is determined to be responsible by the trier of fact; except that, a party is responsible for the fault of another defendant or for payment of the proportionate share of another defendant if any of the following applies: (1) The other defendant was acting as an employee of the party; (2) The party's liability for the fault of another person arises out of a duty created by the federal Employers' Liability Act, 45 U.S.C. §51.
Montana Mont. Code Ann. §27-1-703 Modified joint and several liability. Several liability for a party whose negligence is determined to be 50 percent or less of the combined negligence of all persons and is responsible only for the percentage of negligence attributable to that party. The remaining parties are jointly and severally liable for the total less the percentage attributable to the claimant and to any person with whom the claimant has settled or who the plaintiff has released from liability. A party may be jointly liable for all damages caused by the negligence of another if both acted in concert in contributing to the claimant's damages or if one party acted as an agent of the other.
Nebraska Neb. Rev. Stat. §25-21,185.10 Modified joint and several liability. The liability of each defendant for economic damages shall be joint and several and the liability of each defendant for noneconomic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of noneconomic damages allocated to that defendant in direct proportion to that defendant's percentage of negligence.
Nevada Nev. Rev. Stat. §41A.045 Several liability. Defendants proportionally liable according to percentage of fault for economic and noneconomic damages awarded.
New Hampshire N.H. Rev. Stat. Ann. §507:7-e Modified joint and several liability. The court shall enter judgment against each party liable on the basis of the rules of joint and several liability, except that if any party shall be less than 50 percent at fault, then that party's liability shall be several and not joint and he shall be liable only for the damages attributable to him. In all cases where parties are found to have knowingly pursued or taken active part in a common plan or design resulting in the harm, the court shall grant judgment against all such parties on the basis of the rules of joint and several liability. If, within 60 days of final judgment, the damages are uncollectible, then the court may reallocate the liability for the uncollected portion of the judgment based upon the other joint tortfeasors' relative degrees of fault.
New Jersey

N.J. Rev. Stat. §2A:15-5.2

N.J. Rev. Stat. §2A:15-5.3

Modified joint and several liability. Court must determine each party’s negligence or fault in a percentage.

 

A party recovering damages may get the full amount of the damages from any party determined to be 60 percent or more responsible for the total damages and only that percentage of the damages directly attributable to that party's negligence or fault from any party determined to be less than 60 percent responsible for the total damages.
New Mexico N.M. Stat. Ann. §41-3A-1 Several liability. Any defendant who establishes that the fault of another is a proximate cause of a plaintiff's injury shall be liable only for that portion of the total dollar amount awarded as damages to the plaintiff that is equal to the ratio of such defendant's fault to the total fault attributed to all persons, including plaintiffs, defendants and persons not party to the action. The doctrine imposing joint and several liability shall apply: (1) to any person or persons who acted with the intention of inflicting injury or damage; (2) to any persons whose relationship to each other would make one person vicariously liable for the acts of the other, but only to that portion of the total liability attributed to those persons; (3) to any persons strictly liable for the manufacture and sale of a defective product, but only to that portion of the total liability attributed to those persons; or (4) to situations not covered by any of the foregoing and having a sound basis in public policy.
New York N.Y. Civil Practice Law and Rules Law §1600 et seq. Modified joint and several liability. Defendants are proportionally liable according to percentage of fault, unless found more than 50 percent at fault, for noneconomic damages awarded. Defendants can be held joint and severally liable for economic damages.
North Carolina N.C. Gen. Stat. §1B-1 et seq. Joint and several liability.
North Dakota N.D. Cent. Code §32-03.2-02 Several liability. When two or more parties are found to have contributed to the injury, the liability of each party is several only, and is not joint, and each party is liable only for the amount of damages attributable to the percentage of fault of that party, except that any persons who act in concert in committing a tortious act or aid or encourage the act, or ratifies or adopts the act for their benefit, are jointly liable for all damages attributable to their combined percentage of fault.
N. Mariana Islands Statutes unavailable  
Ohio Ohio Rev. Code Ann. §2307.22

Modified joint and several liability. If more than 50 per cent of the tortious conduct is attributable to one defendant, that defendant shall be jointly and severally liable in tort for all compensatory damages that represent economic loss. If this section applies, each defendant to whom 50 percent or less of the tortious conduct is attributable shall be liable to the plaintiff only for that defendant’s proportionate share of the compensatory damages that represent economic loss.

If 50 percent or less of the tortious conduct is attributable to any defendant against whom an intentional tort claim has been alleged and established, that defendant shall be jointly and severally liable in tort for all compensatory damages that represent economic loss. If this section applies, each defendant against whom an intentional tort claim has not been alleged and established, who is determined to be legally responsible for the same injury or loss to person or property or the same wrongful death, and to whom 50 percent or less of the tortious conduct is attributable shall be liable to the plaintiff only for that defendant’s proportionate share of the compensatory damages that represent economic loss. Each person shall be liable to the plaintiff only for that defendant’s proportionate share of the compensatory damages that represent noneconomic loss.
Oklahoma Okla. Stat. tit. 23, §15 Several liability. In any civil action based on fault and not arising out of contract, the liability for damages caused by two or more persons shall be several only and a joint tortfeasor shall be liable only for the amount of damages allocated to that tortfeasor.
Oregon Or. Rev. Stat. §31.610 Modified several liability. Defendants are proportionally liable according to percentage of fault for damages awarded. If, within one year of final judgment, the damages are uncollectible, then court may reallocate the liability for the uncollected portion of the judgment based upon the other joint tortfeasors' relative degrees of fault.
Pennsylvania Pa. Cons. Stat. tit. 42, §7102

Modified several liability. (1) Where recovery is allowed against more than one person, including actions for strict liability, and where liability is attributed to more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant's liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned under subsection (a.2).

(2) Except as set forth in paragraph (3), a defendant's liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the plaintiff and against each defendant for the apportioned amount of that defendant's liability.

(3) A defendant's liability in any of the following actions shall be joint and several, and the court shall enter a joint and several judgment in favor of the plaintiff and against the defendant for the total dollar amount awarded as damages: (i) Intentional misrepresentation. (ii) An intentional tort. (iii) Where the defendant has been held liable for not less than 60 percent of the total liability apportioned to all parties.
Puerto Rico P.R. Code Ann. tit. 32, §51.7 Joint and several liability.
Rhode Island R.I. Gen. Laws §10-6-1 et seq. Joint and several liability. The term "joint tortfeasors" means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them; provided, however, that a master and servant or principal and agent shall be considered a single tortfeasor.
South Carolina S.C. Code Ann. §15-38-15 Modified Joint and several liability. Joint and several liability does not apply to any defendant whose conduct is determined to be less than 50 percent of the total fault for the indivisible damages as compared with the total of: (i) the fault of all the defendants; and (ii) the fault (comparative negligence), if any, of plaintiff. A defendant whose conduct is determined to be less than 50 percent of the total fault shall only be liable for that percentage of the indivisible damages determined by the jury or trier of fact.
South Dakota S.D. Codified Laws Ann. §15-8-15.1 Modified joint and several liability. §15-8-15.1. If the court enters judgment against any party liable on the basis of joint and several liability, any party who is allocated less than 50 percent of the total fault allocated to all the parties may not be jointly liable for more than twice the percentage of fault allocated to that party.
Tennessee Tenn. Code Ann. §29-11-107 Modified several liability. If multiple defendants are found liable in a civil action governed by comparative fault, a defendant shall only be severally liable for the percentage of damages for which fault is attributed to such defendant by the trier of fact, and no defendant shall be held jointly liable for any damages. The doctrine of joint and several liability remains in effect: (1) To apportion financial responsibility in a civil conspiracy among two or more at-fault defendants who, each having the intent and knowledge of the other's intent, accomplish by concert an unlawful purpose, or accomplish by concert a lawful purpose by unlawful means, which results in damage to the plaintiff; and (2) Among manufacturers only in a product liability action as defined in §29-28-102, but only if such action is based upon a theory of strict liability or breach of warranty. Nothing in this subsection (b) eliminates or affects the limitations on product liability actions found in §29-28-106
Texas Tex. Civil Practice and Remedies Code Ann. §33.013 Modified several liability. Defendants are proportionally liable according to percentage of fault for damages awarded, unless the percentage of responsibility attributed to the defendant with respect to a cause of action is greater than 50 percent.
Utah Utah Code Ann. §78B-5-820 Several liability. Defendants are proportionally liable according to percentage of fault for damages awarded.
Vermont Vt. Stat. Ann. tit. 12, §1036 Several liability. Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed.
Virginia Va. Code §8.01-443 Joint and several liability. A judgment against one of several joint wrongdoers shall not bar the prosecution of an action against any or all the others, but the injured party may bring separate actions against the wrongdoers and proceed to judgment in each, or, if sued jointly, he may proceed to judgment against them successively until judgment has been rendered against, or the cause has been otherwise disposed of as to, all of the defendants, and no bar shall arise as to any of them by reason of a judgment against another, or others, until the judgment has been satisfied.
Virgin Islands V.I. Code Ann. tit. 5, §1451 Joint and several liability. Where recovery is allowed against more than one defendant, the trier of fact shall apportion, in dollars and cents, the amount awarded against each defendant. Liability of defendants to plaintiff shall be joint and several but, for contribution between defendants, each defendant shall be liable for that proportion of the verdict as the trier of fact has apportioned against such defendant; provided, however, no defendant in a cause of action concerning a motor vehicle accident shall be responsible for any judgment entered in favor of the plaintiff greater than the amount of negligence apportioned to such defendant unless the negligence of the defendant shall be greater than 50 percent, in which case the defendant shall be responsible for the total amount of the judgment entered in favor of the plaintiff, less any percentage of contributory negligence attributed to the plaintiff.
Washington Wash. Rev. Code §4.22.070 Modified several liability. The liability of each defendant shall be several only and shall not be joint except: (a) A party shall be responsible for the fault of another person or for payment of the proportionate share of another party where both were acting in concert or when a person was acting as an agent or servant of the party. (b) If the trier of fact determines that the claimant or party suffering bodily injury or incurring property damages was not at fault, the defendants against whom judgment is entered shall be jointly and severally liable for the sum of their proportionate shares of the claimant(s) total damages.
West Virginia W. Va. Code §55-7B-9 Several liability. If the trier of fact renders a verdict for the plaintiff, the court shall enter judgment of several, but not joint, liability against each defendant in accordance with the percentage of fault attributed to the defendant by the trier of fact.
Wisconsin Wis. Stat. §895.045 Modified several liability. The liability of each person found to be causally negligent whose percentage of causal negligence is less than 51 percent is limited to the percentage of the total causal negligence attributed to that person. A person found to be causally negligent whose percentage of causal negligence is 51 percent or more shall be jointly and severally liable for the damages allowed. If two or more parties act in accordance with a common scheme or plan, those parties are jointly and severally liable for all damages resulting from that action, except as provided in §895.043 (5). The rule of joint and several liability does not apply to punitive damages.
Wyoming Wyo. Stat. §1-1-109 Several liability. Each defendant is liable only to the extent of that defendant's proportion of the total fault.

Heather Morton is a program principal in Fiscal Affairs. She covers financial services, alcohol production and sales, and medical malpractice issues for NCSL.

Additional Resources