What is Joint Liability?
The Imposition of Joint Liability Against Physicians in the Aftermath of the Pro Rata Liability Act.
This article discusses the issue of ‘joint liability’ among physicians since the adoption of §13-21-111.5, C.R.S. (repl. vol. 1987) (referred to herein as the “pro rata liability act”), which eliminates joint and several liability for joint tortfeasors. It also discusses the imposition of joint liability under the pro rata liability act in the context of a traditional negligence case, in the wake of Resolution Trust Corp. v. Heisermani.
Prior to the enactment of the foregoing statute, the law on joint liability among physicians was generally defined by C.J.I. 3d, Civil, 15:10. The current supplement to Instruction 15:10, Notes on Use, deletes the instruction and cautions that the former instruction may no longer be an accurate statement of the law. The Committee on Jury Instructions also notes the absence of case law that indicates that adoption of the pro rata liability act abolished common law principles of vicarious liability (e.g., in a partnership or joint venture). The author has had a recent case go to trial, the Freyerii case, in which the issue was addressed, and the matter reviewed on appeal.iii
The Freyer Case
The case is a medical malpractice lawsuit which arose from care and treatment consisting of multiple skull surgeries performed by multiple physicians on the plaintiff. There were multiple surgeons who collaborated on the diagnosis, planning of the original and secondary operations, and follow-up care and treatment. The surgeons practiced different specialties, namely, neurosurgery and plastic surgery. The operation was a type of craniofacial procedure, which frequently is undertaken in a multidisciplinary, team approach.
The plaintiff’s parents were referred to a neurosurgeon, who in turn consulted with a plastic surgeon. Both surgeons claimed special expertise in the area of craniofacial surgery. The surgeons decided to undertake a combined surgical procedure which would be done in a single operation. Simply stated, as conceived, the neurosurgeon would initiate the operation, which involved a craniectomy, then the plastic surgeon would reshape and further dissect the skull, and then the neurosurgeon and plastic surgeon would together reattach the removed segments of the skull and close the scalp.
Both surgeons met with the parents of the minor, separately, and explained the overall operation. They indicated that it would be undertaken jointly, and explained the planned operation and their part of the procedure. Both surgeons claimed to have obtained the informed consent of the parents, who later signed an informed consent form for the operation at the hospital.
As it turned out, the minor plaintiff suffered significant complications during the initial stages of the operation while the neurosurgeon was operating, and the procedure had to be halted before the plastic surgeon performed any surgery. The surgeons subsequently obtained the plaintiff’s parents permission to re-operate and complete the procedure, which was undertaken jointly. There were further complications. There were multiple further operations and surgical procedures, at least one by each physician, performed separately by the surgeons.
The plaintiff claimed to have suffered brain injury secondary to the complications that occurred while the neurosurgeon was performing the first operation. The plaintiff claimed that the plastic surgeon should be held jointly liable with the neurosurgeon for the injuries due to having jointly undertaken the care and treatment, surgical planning (which was allegedly negligent as having been unduly extensive thereby unnecessarily placing the plaintiff at risk for the complications which ultimately ensued) and informed consent.
The plaintiff resolved her claims against the neurosurgeon and went to trial against the plastic surgeon alone on a joint liability theory. At trial, the defendant moved to dismiss the joint liability theory of the plaintiff primarily on the grounds that the claim was barred by C.R.S. §13-21-111.5. The plaintiff argued that the common law principles of vicarious liability withstood the enactment of the abolishment of joint and several liability, and that the physicians could be held jointly liable based on the principal/agent theory of joint venture. Specifically, the plaintiff argued that when two physicians impliedly or expressly agree to work with each other to treat a patient, each physician is legally responsible to the patient for any alleged negligence of any other physician arising out of the scope of their agreement to treat that condition.iv
Plaintiff argued that the common law principles of joint liability, as embodied in the former stock 15:10 instruction, were factually supported in her case. The stock instruction reads:
“When two or more physicians expressly or impliedly agree to work with each other to treat or care for a patient’s injury or condition, each physician is legally responsible to the patient for any negligence of any of the other physicians arising out of and within the scope of their agreement to treat or care for that injury or condition.”
Plaintiff argued that the physicians in her case were joint venturers, and that the defendant had sufficient right of control over the treatment to warrant being held vicariously liable for any harm committed by the settling physician, within the scope of the venture.
The plaintiff argued that the adoption of C.R.S. §13-21-111.5 eliminates common law ‘joint and several liability of tortfeasors’ (which applied in common law irrespective of any agency relationship among the tortfeasors), but does not eliminate joint and several liability when agency/joint venture relationships establish it.v
Trial Court Recognizes Survival of Joint Liability
The trial judge (Honorable Joseph E. Meyer, III) recognized that joint liability does survive the enactment of the pro rata liability act, in the instance of traditional vicarious liability (which would have to be specifically pled), but held that there was insufficient evidence of a joint venture. However, the trial court allowed the plaintiff to argue joint liability as per subsection 4 of the pro rata liability act which expressly retains joint liability for a tortious act where the defendant acts in concert with another.
§ 13‑21‑111.5 “Civil liability cases‑‑pro rata liability of defendants”, states, in pertinent part:
(1) In an action brought as a result of a death or an injury to person or property, no defendant shall be liable for an amount greater than that represented by the degree or percentage of the negligence or fault attributable to such defendant that produced the claimed injury, death, damage, or loss, except as provided in subsection (4) of this section….
(4) Joint liability shall be imposed on two or more persons who consciously conspire and deliberately pursue a common plan or design to commit a tortious act. Any person held jointly liable under this subsection (4) shall have a right of contribution from his fellow defendants acting in concert. A defendant shall be held responsible under this subsection (4) only for the degree or percentage of fault assessed to those persons who are held jointly liable pursuant to this subsection (4).
Judge Meyer applied this subsection in reliance on the recent Colorado Supreme Court decision in Resolution Trust Corp. v. Heiserman. In Heiserman, the Court held that joint liability may be imposed, pursuant to §13-21-111.5(4), for an alleged tortious act based on negligence, gross negligence, negligence per se, breach of fiduciary duty of care, or breach of fiduciary duty of loyalty. Judge Meyer found that there was sufficient proof of an agreement between the two surgeons to plan and pursue the surgery on the plaintiff to submit the matter to the jury.
The jury instruction accepted by Judge Meyer, fashioned from §13-21-111.5(4) and Heiserman, stated:
“When two or more physicians consciously and deliberately pursue a common plan or design that results in negligent treatment of a medical condition, each physician is legally responsible for the negligence of the other physicians arising out of and within the scope of their common plan or design to treat that condition. The common plan or design may be either express or tacit.
If you find that [Defendant] was negligent in his participation in the common plan or design, and [the settling physician] was also negligent in his participation in the common plan or design, that is sufficient to give rise to liability of [Defendant] for the negligence of [the settling physician] arising out of and within the scope of the common plan or design.
On the other hand, if [Defendant] innocently and without negligence of his own, does an act which happens to further the negligence, if any, of [the settling physician], he is not liable for the conduct of [the settling physician].
If you find that [Defendant] and [the settling physician] consciously and deliberately pursued a common plan or design that resulted in negligent treatment of a medical condition, and that [Defendant] was negligent in his participation in the common plan or design, you must find [Defendant] liable for the entire injury or harm caused by the common plan or design of the physicians.”vi
Judge Meyer decided, during the jury instruction phase of the trial, that to impose joint liability under the pro rata liability act, it was necessary for the jury to first conclude that the defendant against whom joint liability is sought was independently negligent. In other words, as a threshold determination before joint liability could be imposed, the jury would consider the individual negligence of the defendant, and only if it found negligence against that defendant could it impose joint liability against that defendant. The court relied upon the language from Prosser which is set forth in the Heiserman opinion. It reads:
“It is, furthermore, essential that each particular defendant who is to be charged with responsibility shall be proceeding tortiously, which is to say with the intent requisite to committing a tort, or with negligence. One who innocently, and carefully, does an act which happens to further the tortious purpose of another is not acting in concert with the other.”vii
Theories of Joint Liability Distinguished
It must be recognized that this is a significantly different theory than principles of vicarious liability under common law agency theories such as joint venture. If a traditional joint venture among physicians can be established, then the knowledge and acts of the agent can be imputed to the principal.viii Thus, the establishment of a traditional agency relationship would result in the jury considering the collective knowledge and acts of the surgeons in making the determination of negligence. Pursuant to the joint liability section of the pro rata liability act, as applied by the District Court in Freyer, the negligence of the defendant must be established without the benefit of the imputation principles of common law agency.
In the Freyer case, the jury found no negligence on the part the defendant (the plastic surgeon who was not present or operating when the injury occurred), having been instructed to consider the negligence on the part of the defendant “in his participation in the common plan or design”.ix The issue of joint liability, therefore, was never reached by the jury.
Presumably, under a traditional vicarious liability/joint venture theory, the jury would have been instructed to consider the acts or omissions of the settling physician as the acts or omissions of the defendant, with a significant potential for a different result.
The next question is, what would the effect of the joint liability decision have been if the jury had found independent negligence on the part of the defendant in the Freyer case and imposed joint liability? In that event, there would have been no apportionment of fault related to the settling defendant (which would have resulted in a deduction of the settling party’s share of liability from the damages awarded pursuant to the pro rata liability act) and the defendant would have had a contribution claim against the settling party (subject to the provisions of C.R.S. §13-50.5-105).x
Perhaps the main benefit, to the plaintiff, of joint liability under the pro rata liability statute occurs when you have a judgment proof co-tortfeasor. Then, a plaintiff could utilize this statutory remedy to seek full recovery from the solvent tortfeasor.
The main disadvantage, to the plaintiff, to proceeding under the joint liability provision of the pro rata liability statute (versus a common law vicarious liability theory such as joint venture), is that the plaintiff must prove negligence considering the actions of the defendant and co-tortfeasors separately rather than collectively. When the plaintiff’s goal is to increase the chances of establishing liability, then it is clearly more advantageous to attempt to proceed under a traditional vicarious liability theory such as joint venture.
The two ‘joint liability’ theories should not be confused and considered equal in the eyes of the practitioner. Traditional common law vicarious liability theory (such as joint venture) influences the liability and damages determinations, providing a potential advantage to the plaintiff in regard to establishing liability, whereas the pro rata liability act joint liability theory influences the damages determination only (and does not impact the liability determination).
Trial courts struggle with the retention of joint liability in the face of pro rata liability, tending to reject the concept without much analysis. Most recently, I presented the theory to a trial court in the context of an anesthesiologist deciding to limit blood loss using deliberate hypotension, increasing the risk of paralysis from hypoperfusion of the spine in a back surgery case that resulted in paraplegia. The surgeon agreed the approach to the surgery was discussed and determined as a ‘team’ but the trial court gave little consideration to going beyond the stock pro rata liability analysis. This ‘off the cuff’ approach to legal rights does an injustice to legitimate interests in appropriate cases.
By: James W. Avery, Esq.
i. 898 P. 2d 1049 (Colo. 1995).
ii. China Freyer v. Richard E. Albin, M.D., Case No. 95 CV 5712 (Denver Dist. Ct., Courtroom 7).
iii. Case No. 97 CA 1707 (Colo. App.).
iv. Plaintiff mainly relied on C.J.I., 3d, Civil 15:10 and supporting case law, i.e., Bolles v. Kinton, 83 Colo. 147, 263 P. 27 (1928) and, Scruggs v. Otteman, 640 P. 2d 259, 260 (Colo. App. 1981)[”When several physicians act independently of each other in the course of rendering medical services to a single patient, they generally are not jointly liable for the acts of each other that may result in injury to the patient….On the other hand, when several physicians act in concert or are jointly employed, each may be held responsible for the negligent conduct of any or all of the others.”].
v. See, e.g., McDonald v. Lakewood Country Club, 170 Colo. 355, 461 P. 2d 437 (1969); and, Moody v. A.G. Edwards & Sons, Inc., 847 P. 2d 215 (Colo. App. 1992).
vi. Instruction No. 21.
vii. Heiserman, 898 P. 2d at 1057, quoting from W. Page Keeton et al., Prosser and Keeton on the Law of Torts Sec. 46, at 323‑24 (5th ed. 1984) (footnotes omitted).
viii. See, C.J.I. 3d, Civil, 7:17, 8:1 and 8:2. See also, Notes on Use to Instruction 15:10 (supp.), which state: “If a plaintiff is claiming that the defendant and the “actively” negligent physician had a relationship that would support vicarious liability on some basis other than that which is set forth in the former instrucion, e.g., a partnership, use the appropriate instructions from Chapters 7 or 8.”
ix. Instruction No. 21.