Written by attorney James E. Girards

How Are the Damages Split Up Between Wrongdoers in a Texas Medical Malpractice Case?

This Legal Guide is not intended to be a substitute for legal advice or consultation. Instead, it is intended to provide a general background of the issues presented. One should always obtain a formal consultation with an appropriately Board Certified attorney before making any decision regarding one's legal rights.

The concept of reducing the defendants' responsibility to a plaintiff in Texas is referred to generally as "Contributory or Comparative Negligence." Texas has adopted a modified comparative negligence scheme for tort claims generally. This means that a claimant's action is barred if his "percentage of responsibility" is found to be greater than 50 percent. Tex. Civ. Prac. & Rem.Code § 33.001. If his percentage of responsibility is 50 percent or less, the claimant's recovery from the defendants is reduced proportionately.; Tex.Civ. Prac. & Rem. Code § 33.012(a). The comparative negligence statute does not apply to claims for exemplary damages. Tex. Civ. Prac. & Rem. Code § 33.002.

The concept that a defendant may be responsible for more damages than his own personal responsibility is known as "Joint and Several Liability." This concept originates in the idea that as between a wrongdoer and a completely innocent claimant, the claimant should be made whole first and not be victimized a second time by someone who is uninsured or underinsured. The wrongdoers should more fairly bear the burden of pursuing recovery of any excess payment from the other wrongdoers rather than placing that burden on the claimant.

But in Texas, generally joint wrongdoers are liable severally and not jointly. Each defendant is liable only for that portion of the claimant's damages that is equal to his percentage of responsibility. Tex. Civ. Prac. & Rem. Code Ann. § 33.013. Settling defendants and responsible third parties are considered when calculating that percentage. Tex. Civ. Prac. & Rem. Code Ann. § 33.003. A defendant may be jointly liable if his responsibility is greater than 50 percent or, for cases filed on or after September 1, 2003, if he has acted in concert with others to commit certain listed felonies with the intent to harm others. Tex. Civ. Prac. & Rem. Code Ann. § 33.013.

The concept that a joint tortfeasor or wrongdoer can pursue his excessive payment from the other joint tortfeasors is known as "Contribution." One who is jointly and severally liable and pays more than his share of a judgment has a right of contribution against liable co-defendants who have paid less than their percentages of responsibility. Tex. Civ. Prac. & Rem. Code Ann. § 33.015. Texas courts are split on the question of whether contribution must be sought in the original action or can be the subject of a later action. In re Martin, 147 S.W.3d 453, 458-549 (Tex. App. 2004, pet. denied). A settling tortfeasor has no right to contribution and cannot be compelled to pay contribution. Beech Aircraft Corp. v. Jinkins, 739 S.W.2d 19 (Tex. 1987); Tex. Civ. Prac. & Rem. Code Ann. § 33.015(d). But, a settling tortfeasor may retain a common law right of indemnity against one for whom he is vicariously liable. St. Anthony's Hospital v. Whitfield, 946 S.W.2d 174 (Tex. App. 1997, writ denied) (one settling party allowed to sue another settling party for indemnity).

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