It has now been 30 years since the enactment of CPLR Article 16, which substantially changed the consequences of joint and several liability. The change meant that the liability for non-economic loss of a “deep pocket” defendant found 50 percent or less at fault could be limited to that defendant’s equitable share as determined by the jury. Previously, a defendant found responsible for causing the plaintiff’s injury in any degree was jointly and severally liable for the full amount of the resulting judgment, meaning that a hospital or municipality found only 1 percent at fault could be required to satisfy the entire judgment. Despite exceptions, qualifications, and limitations, the statute has provided an important avenue for defense counsel to limit the exposure of their clients. It has also given attorneys who represent medical care providers strategic tools beyond that limitation of exposure.

While the primary defense may be that the practitioners met the standard of care, and there is no liability despite an unfortunate treatment outcome, Article 16 enables the defendants in a medical malpractice action to look beyond the allegations of the complaint to determine who else may share responsibility if liability exists. Although Article 16 was initially seen as benefiting municipalities and other solvent entities that had minimal liability compared to a less solvent primary wrongdoer, it was clearly applicable to defendants in medical malpractice cases as well. (Marsala v. Weinraub, 208 AD2d 689 [2d Dept. 1994]).

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