Your Share, Their Share -- Who is Liable for What?
Mark L. Rosen, Esquire
In Florida, the status of the law of joint and several liability affects a physician’s involvement in a medical malpractice lawsuit. Under current law, defendant-physicians in a medical malpractice lawsuit are liable only for their percentage of fault. Previously, all defendants were liable for the full extent of the damages, despite their degree of malpractice. These new rules affect the collectibility of judgments for plaintiff attorneys. For example, years ago, in a lawsuit against a physician and a hospital, it was virtually guaranteed that the hospital would be liable for the full verdict, even if a physician was primarily responsible for the negligence. Today, the hospital is liable only for its percentage of fault; so too is the physician. Thus, today, a plaintiff can only collect the judgment apportioned to the physician, and only if the physician is collectible, meaning his or her assets are unprotected. A physician whose assets are protected is virtually judgment-proof. This makes a plaintiff’s case less valuable, at least in the eyes of the plaintiff’s attorney, who would be forced to go after a hospital or any other available deep pocket he or she could find.