Jun 18, 2002 3 min read

Working into the wee hours last Thursday, the state Senate passed by a comfortable margin a bill that restores a significant degree of fairness to the process of awarding damages in civil lawsuits. Under the legal concept known as “joint and several liability,” when two or more parties are found to be negligent, one can be held fully responsible for paying the judgment if the other party or parties cannot pay their share. A simple example is a hospital being forced to pay most or all of a malpractice damage award even though its actual role in the case was limited.

The Senate bill, very similar to a measure that had earlier cleared the House, says that defendants found by a judge or jury to be less than 60 percent liable are only required to pay their percentage of the award. If a defendant’s liability were set at 10 percent, that defendant would only pay 10 percent of the total judgment.

What could be fairer than that?

The trial lawyers don’t see it that way. Their association claims that victims will end up on the short end because they are no longer guaranteed the full amount of damages. (And if the victims get shortchanged, the lawyers get less, too.)

That could happen. Under the legislation, plaintiffs in many civil actions will no longer be able to collect from whoever has the most money, be it a hospital, a business or an individual, regardless of who was most at fault.

Lawyers will no longer have as much success suing every party in sight, whether intimately or remotely involved in a case, in the hope that the one with the deepest pockets will be forced to pay for the mistakes of everyone else.

Maybe that’s not fair to the victims. But how is it any more fair to hold a defendant who’s only 10 percent to blame responsible for 100 percent of the damages? That makes no sense at all. It has a chilling effect on the business community, and it has had a major impact on health care and the premiums hospitals and doctors have had to pay for medical malpractice insurance.

We challenge any of the attorneys or the lawmakers who voted against the reform legislation to explain in plain English how joint and several liability squares with the idea that the judicial process should be reasonable, balanced and fair for ALL of the parties involved in litigation. It’s clear to us that it is not.

What the Legislature has done, and which Gov. Mark Schweiker will make official, won’t solve all of the problems that have mushroomed into a full-blown crisis in the health care industry. It may take months or even years for the effects of liability reform to be fully realized, and for insurers to return to the Pennsylvania marketplace. During that time, the availability and affordability of health care will remain uncertain. Many hospitals will continue on shaky financial ground for the foreseeable future. Many doctors may still decide to take their services to states where insurance costs are under control.

Nevertheless, the bill passed last week is an important piece of legislation that was long overdue, and a key element in what should be an ongoing legislative effort to effect comprehensive tort reform that protects the rights of both plaintiffs and defendants.