The Effect of a Settlement on Malpractice Defendants who Chose to Litigate

September 11, 2013

Graham v. Twedell, — A.3d —, 2013 WL 4803485 (N.J.Super.L. 2013)

Can a defendant who chooses the litigate a medical malpractice case, but does so unsuccessfully, offset the verdict by the amount received by the plaintiff in a settlement with other defendants?

Until now, this issue has not been settled in New Jersey, but now it is. The New Jersey Superior Court has ruled that the setoff will only be available to defendants who ask the jury to apportion their liability relative to that of other defendants, pursuant to the state’s Comparative Negligence Act. As the court explained, a defendant who chooses not to put on a case against his co-defendants will receive no credit against the verdict. To receive this credit, the defendant must ask the jury to determine the total damage figure and how it splits among the negligent healthcare providers.

This seems absolutely right.