June 20, 2013
Town of Kearny v. Brandt, — A.3d —, 2013 WL 3064600 (N.J. 2013)
Consider a familiar scenario:
Your client was negligently hit by a driver on a highway and was taken to hospital. There, the ER doctors did not treat him properly and he became permanently incapacitated. The ER doctors’ mistake did not amount to gross negligence, and so you properly sue the reckless driver for your client’s full damage. You do not sue the hospital because, as a charitable institution, it operates under a statutory immunity that caps its liability for medical malpractice at a low sum ($250,000, as in New Jersey, or just $20,000, as in Massachusetts). You do not sue the ER doctors because they are protected by a limitations or repose statute that gave you and your client too short a window to file a suit. Alternatively, you did sue the ER doctors but the court dismissed your suit for failure to produce a “merit certificate” from an expert whose qualifications match the defendants’ (as in Nicholas v. Mynster, — A.3d —, 2013 WL 1760434 (N.J. 2013)).
The reckless driver does not dispute his negligence and the consequent liability for your client’s injury. Instead, he asks the court to apportion his liability in light of the hospital’s and the ER doctors’ fault.
Will this apportionment claim succeed?
In today’s decision, the New Jersey Supreme Court ruled that it will. The Court decided that the comparative negligence doctrine that applies in New Jersey (under a statutory scheme set by the Comparative Negligence Act and the Joint Tortfeasors Contribution Law) authorizes allocation of fault to an alleged tortfeasor who obtains a dismissal or exemption from tort liability for any reason except “where, as a matter of law, [he] could not under any circumstances be a joint tortfeasor [as in the case of] an employer subject only to an action under the Workers’ Compensation Act, and immunized from any action in tort.”
Because hospitals and doctors can, in principle, be liable in torts, their non-actionable malpractice would reduce the reckless driver’s liability in my example. This is what comes out from today’s decision of the New Jersey Supreme Court.
The Court rationalized this decision by saying that it “promotes fair allocation of responsibility and avoids creating an incentive for a plaintiff to strategically target only one of a range of culpable defendants” and that a defendant “should not be penalized by the dismissal of other tortfeasors.” This ruling expands a tortfeasor’s apportionment entitlement, given that New Jersey’s Comparative Negligence Act, N.J.S.A. 2A:15–5.2(a)(2), authorizes apportionment only to “the parties to a suit.”
Based on the Court’s ruling, when the faults of the reckless driver and the hospital are equal and your client’s damage is, say, $2,000,000, the driver and the hospital should pay your client $1,000,000 each. Alas, the hospital will pay your client only $250,000 pursuant to New Jersey’s charitable immunity; and so your client will recover $1,250,000 in total, instead of $2,000,000.
I don’t think that this outcome is right. After all, your client didn’t choose to become a charitable hospital’s patient. Rather, he was forced into that hospital by an uncharitably reckless driver. Under the conventional rules of causation, this driver is responsible for the client’s entire damage: his entitlement to apportionment is a special privilege. Moreover, under New Jersey’s statute, N.J.S.A. 2A:15–5.3(a), if the hospital were to cause your client a $250,000 damage, the reckless driver would not be allowed to apportion his liability as his fault would then cross the 60% threshold. Being responsible for “sixty percent or more” of your client’s damage, he would have to pay the client the full amount of compensation.
Here is my bottom line: the reckless driver should pay your client $1,750,000. The driver’s apportionment entitlement should not exceed the contribution amount he would receive from the hospital after paying your client the full amount of compensation ($2,000,000). From that amount, he should only be allowed to deduct $250,000—the maximal amount that the hospital can be obligated to pay under the charitable immunity. This immunity was designed to protect hospitals’ assets against dissipation, not to help reckless drivers to reduce their compensation duty to the injured victim.
As for the ER doctors’ liability, the reckless driver should be required to establish it—vis-à-vis your client—by satisfying every procedural, evidentiary and substantive requirement that applies in medical malpractice actions. The driver should prove the ER doctors’ malpractice in the same way in which your client would have to establish it in a separate suit against those doctors. Here, too, the principle is simple: an apportionment request that alludes to medical malpractice of a healthcare provider should only be granted within the limits set by the medical malpractice law. Failure to recognize this principle will water down the deterrence of reckless drivers and other tortfeasors and deny tort victims their redress.
The Court gave tortfeasors a broad entitlement to apportionment without introducing any of the abovementioned constraints. Let’s hope that it will do so in the future.