Medical malpractice plaintiffs often find themselves suing several parties—one or more hospitals, multiple physicians and other health care providers—for the negligent care they received. And though each case differs, plaintiffs counsel in these types of matters are often presented with tactical decisions leading them to explore the release of one party but not others. A key consideration in determining who to release is that Pennsylvania law does not allow a party to release an agent (for example, a physician) and maintain claims against a principal (for example, a hospital) when the claims against the principal are premised on vicarious liability. It is therefore imperative that plaintiffs counsel seeking joint tortfeasor agreements (JTAs) in the medical malpractice setting be abundantly clear as to the claims—and parties—they are releasing.

Uniform Contribution Among Joint Tortfeasors Act

Joint tortfeasors are "two or more persons jointly or severally liable in tort for the same injury to persons or property,"  see 42 Pa.C.S. Section 8322. Under Pennsylvania's Uniform Contribution Among Joint Tortfeasors Act (UCATA), an injured party may settle her claims with one joint tortfeasor without releasing her claims against any other joint tortfeasor. By executing a joint tortfeasor agreement (JTA) with a settling defendant, a plaintiff only reduces the value of her claims against the nonsettling defendants—she does not release them entirely. In this way, the "UCATA abrogated the broader common-law rule that payment by one tortfeasor would release all others regardless of the parties' intent, insofar as it applied to joint tortfeasors," see Maloney v. Valley Medical Facilities, 984 A.2d 478, 481 n. 4 (Pa. 2009).

As explained by the Pennsylvania Supreme Court, "where a plaintiff and a settling defendant sign a pro tanto release, then the plaintiff's ultimate recovery against the nonsettling joint tortfeasors is the total award of damages reduced by the amount of consideration paid for the release … in contrast, if the parties sign a pro rata release (which is also known as an 'apportioned share setoff' release), then the plaintiff's ultimate recovery against the nonsettling tortfeasors is the total award of damages reduced by the settling party's allocated share of the liability," as in Baker v. ACandS, 755 A.2d 664, 667 n. 1 (Pa. 2000). Keeping in mind, though, that "a nonsettling defendant is not entitled to a setoff in light of the settling defendant's release unless the settling and nonsettling defendants are both deemed to be joint tortfeasors."

Releasing Medical Malpractice Claims Against a Physician

An agent and its principal are not considered joint tortfeasors "when the liability of the principal is vicarious liability and is not based upon the principal's independent actionable fault," as in Mamalis v. Atlas Van Lines, 560 A.2d 1380, 1381 (Pa. 1989). For, "a claim of vicarious liability is inseparable from the claim against the agent since any cause of action is based on the acts of only one tortfeasor." The release of an agent therefore terminates any derivative claims against its principal, irrespective of any attempted reservation of the right to bring such a claim.

Where claims against a hospital are premised on vicarious liability relating to the medical negligence of its physician, a plaintiff's release of her claims against the physician operates as a release of her claims against the hospital. While the same is not true where a plaintiff has separate direct liability claims against the hospital for corporate negligence, see Thompson v. Nason Hospital, 591 A.2d 703 (Pa. 1991), Mamalis dictates that the release of negligence claims against a physician would extinguish any derivative claims against the hospital employing or contracting with that physician. An offer to enter into a JTA with a physician in a medical malpractice action where the only other defendant is the employing or contracting hospital therefore provides only a trap for the unwary, causing the release of vicarious liability claims for naught.

Releasing Vicarious Liability Claims Against a Hospital

The Supreme Court expressly held that a plaintiff's settlement of her claims against a hospital does not operate as a release of her claims against the physician for whom the hospital was vicariously liable, see Maloney v. Valley Medical Facilities, 984 A.2d 478 (Pa. 2009). The Maloney court ruled that the release of one physician and two medical practices did not release a second physician employed at one of those practices.

In so ruling, however, the court limited its holding to the release of a principal—as opposed to the release of agent. The court stated expressly that "in the scenario entailing a plaintiff's surrender of vicarious liability claims only and express preservation of claims against an agent, we hold that the parties to a settlement should be afforded latitude to effectuate their express intentions." But, citing to Mamalis, the Maloney court recognized that "the release of an agent operates to release the principal from vicarious liability claims, regardless of any attempted reservation of rights," (citing Mamalis v. Atlas Van Lines, 560 A.2d 1380 (Pa. 1989)).

Maloney provides important clarification that a medical malpractice plaintiff can in fact release a hospital from vicarious liability claims and still preserve its negligence claims against the hospital's contractor or employee physician. Further, the Maloney court affirmed the central holding in Mamalis—that a plaintiff's release of her medical negligence claims against a physician will release any derivative claims that she may have against the physician's hospital. The key takeaway from Maloney is that plaintiffs may rest assured that their execution of a JTA with a hospital defendant will not release their claims against a physician defendant employed or contracting with that provider, so long as they take care to "expressly preserve" their intention to preserve such claims in the JTA itself.

Zac Arbitman is a senior associate and trial attorney at Youman & Caputo where he represents catastrophic injury victims in cases involving medical malpractice, motor vehicle accidents, workplace injuries, premises liability and products liability. He also dedicates a significant portion of his practice to representing whistleblowers in claims brought under state and federal False Claims Acts, various state whistleblower statutes, and the IRS, SEC, and CFTC whistleblower programs. Contact him at [email protected].