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:
The physician owed a duty to the patient.
The standard of care and that the physician violated that standard.
A compensable injury.
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.
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Heather Morton is a program principal in Fiscal Affairs. She covers financial services, alcohol production and sales, and medical malpractice issues for NCSL.