The Driver and the Doctor: Are They Joint Tortfeasors?
In the classic case involving a plaintiff who is injured in an automobile accident and then claims that his subsequent medical care was negligently rendered, this question often arises: Are the doctor and the driver joint tortfeasors? Although that question can come up in a few different scenarios, the most common one is where the plaintiff, after settling his automobile claim, files a malpractice suit against the physician and the defense counsel attempts to join the driver as an additional defendant.
As will be explained in greater detail below, Pennsylvania law indicates that such a joinder is improper because the doctor and the driver are not joint tortfeasors. However, a good argument can be made that this conclusion is incorrect under general principles of joint tortfeasor liability.
The case cited most often for the proposition that the doctor and the driver are not joint tortfeasors is Lasprogata v. Qualls, 397 A.2d 803 (Superior 1979). In that well-known case, the plaintiff suffered a fractured femur in an automobile accident which required surgical repair. Some time after the surgery, one of the screws utilized during the operation broke and that event impeded the healing process and necessitated that the plaintiff undergo further treatment. The plaintiff filed a third-party action against the driver which he subsequently settled for $25,000.00. By its specific terms, the release applied to the “defendant only.” Subsequently, plaintiff filed suit against the surgeon who operated on the femur, and that doctor then sought to join the driver as an additional defendant to the medical malpractice action.
In determining whether the joinder was appropriate, the Superior Court framed the question in terms of whether the driver and the doctor were joint tortfeasors and then concluded that they were not. Although much of the court’s holding appears to be based on the fact that the $25,000.00 paid to the plaintiff only compensated him for damages suffered up to the time of the surgery and that the malpractice action sought damages for harm occurring thereafter, the case also declares in broad terms that a driver and a subsequently negligent physician are not joint tortfeasors.
“Case law specifically holds that a tortfeasor originally causing an injury and a physician who subsequently aggravates or causes a new injury are not joint tortfeasors. Bandle v. Vernick, 66 Pa. D.& C.2d 457 (1974); Gertz v. Campbell, 4 Ill.App.3d 806, 282 N.E.2d, aff’d in part and rev’d in part on other grounds, 55 Ill.2d 84, 302 N.E.2d 40 (1973); Annot. 8 A.L.R.3d 639 (1966). The acts of the original wrongdoer and the negligent physician are severable as to time, neither having the opportunity to guard against the other’s acts, and each breaching a different duty owed to the injured plaintiff.” Lasprogota, at p. 805.
It is this general pronouncement for which Lasprogata is most often cited, scant attention unfortunately being given to the fact-specific basis for the holding, e.g. that the malpractice suit sought different damages than those recovered for in the automobile case. Indeed, subsequent cases routinely cite Lasprogata for the general proposition that a driver and a doctor can never be joint tortfeasors because they act at different points in time and they owe different duties to the plaintiff. See, for example, Voyles v. Corwin, 441 A.2d 381 (Superior 1982), and Harka v. Nabati, 487 A.2d 432 (Superior 1985), in which the court stated:
“. . . we hold that appellants and appellees are not joint tortfeasors. Without questions, appellants and appellees owed different duties to decedent; the evidence that would be utilized against each defendant is clearly different; there is very little identity of facts as to time or place of injury; neither had the opportunity to guard against the other’s acts; and as to the identity of the cause of action against each of the defendants, while similar allegations were set forth in the complaints, the nature of each action is unquestionably different.” Harka, at 435.
To the extent Lasprogata and its progeny are cited for the broad position that, as a matter of law, the driver and the doctor can never be joint tortfeasors, that proposition is contrary to basic principles of joint tortfeasor responsibility, and it is also inconsistent with the results reached by our Pennsylvania courts in related “driver-doctor” joint tort cases.
Let us first consider the basic principles of joint tortfeasor responsibility, beginning with the basic definition of a “joint tortfeasor.” The Uniform Contribution Among Tortfeasors Act, 42 Pa. C.S.A. §8322, defines joint tortfeasors as “two or more individuals jointly or severally liable in tort for the same injury.” The key to that definition is the requirement that the two actors cause “the same injury,” something which would appear to be very fact-specific. Viewed in that fashion, one must question how a court could declare as a matter of law that the driver and the doctor could not possibly be joint tortfeasors. Instead, one would think that the court should inquire whether a jury could find that the two defendants are responsible for the same injury.
Lasprogata’s conclusion that the driver and the doctor can never be joint tortfeasors because they act at different points in time and owe different duties to the plaintiff does not comport with common sense notions of tort responsibility. Consider, for example, this hypothetical. A construction company which is erecting a retail mall performs substandard work that leaves the exposed support beams of the ceiling in a weakened condition, all of which is unknown to the operator of the mall. Three months after the mall opens, an employee of the mall owner carelessly maneuvers a small crane through the mall which strikes one of the overhead beams, thereby causing it to collapse and injure several people. Assume further that the beam would not have broken free had it been constructed properly in the first place. Would anyone seriously doubt that the contractor and the operator of the mall are joint tortfeasors even though their negligent conduct occurred at different points in time and they owed different duties to the mall customers? Probably not.
Is that hypothetical any different than the doctor-driver situation? If the response is that the mall hypothetical involves a single injury which occurs at a single point in time whereas the driver-doctor scenario typically involves two injuries, that is not universally the case. For example, if plaintiff suffers a hip fracture in an automobile accident which requires an initial surgical repair and then a second operation becomes necessary because the first one was done improperly, is it not a single injury if the plaintiff ultimately seeks damages when he develops post-traumatic arthritis in the hip?
The point here is that it is too simplistic an approach to suggest that the driver and the doctor can never be joint tortfeasors. Instead, it depends on the particular facts of the case; the extent of the injury for which the plaintiff was compensated in the original suit against the driver; and the injury for which he is seeking damages in the malpractice case.
In addition to being inconsistent with common sense and general principles of tort responsibility, the idea that the doctor and the driver can never be joint tortfeasors is inconsistent with other “driver-doctor” decisions which have been rendered in related contexts. In particular, consider the series of cases starting with the seminal decision of Buttermore v. Aliquippa Hospital, 561 A.2d 733 (Supreme 1989), which held that when a plaintiff settles the original suit against the driver and signs a general release, that release bars a subsequent suit against the doctor for malpractice. If the driver and the doctor are, as a matter of law, not joint tortfeasors, how can a release of one of them be of any benefit to the other? Stated otherwise, when the plaintiff releases the driver and “all other parties respo
nsible for the injury,” how can that language release the doctor if he is not at least partially responsible for that same injury? Despite the apparent inconsistency with Lasprogata, Buttermore has been consistently followed in this jurisdiction, and plaintiffs who sign general releases with the driver are, absent unusual circumstances, simply out of luck when they try to sue the doctor for malpractice. See, e.g. Dublin v. Shuster, 598 A.2d 1296 (Superior 1991); Brandt v. Eagle, 602 A.2d 1364 (Superior 1992); Smith v. Thomas Jefferson University Hospital, 621 A.2d 1030 (Superior 1993); Holmes v. Lankenau Hospital, 627 A.2d 763 (Superior 1993); Brown v. Herman, 665 A.2d 504 (Superior 1995).
The proposition that the driver and the doctor can never be joint tortfeasors is also inconsistent with a case that actually preceded Lasprogata, that being Embrey v. Borough of West Mifflin, 390 A.2d 765 (Superior 1978). In Embrey, the plaintiff was hurt in an auto accident and then was taken to a local hospital where, as a result of alleged malpractice, he died several days later. The plaintiff sued both the driver and the doctor in the same action, and when the case went to trial, the court instructed the jury that the original tortfeasor (the driver) was generally responsible for subsequent malpractice, but it also instructed the jury that if they found that there was a reasonable basis for separating the harm caused by the driver from that caused by the doctor, they could do so. The jury subsequently found both defendants were negligent, but they made the driver responsible for only $25,000.00 in damages whereas the doctor was held responsible for $600,000.00.
The Embrey jury obviously accepted the plaintiff’s argument that the automobile injuries were not life threatening, and that if the patient had been treated appropriately, he would still be alive. On appeal, the Superior Court affirmed the trial’s handling of the case saying it was consistent with the principles set out in §433(a) Restatement of Torts, 2d, concerning principles of apportionment, and they rejected the defendant’s argument that the driver and the doctor should be equally responsible for the verdict merely because they both were found to be negligent.
Embrey is instructive in a few different respects. First, it permits the driver and the doctor to be “joined” in the same cause of action. Second, and more importantly, it recognizes that the ultimate question of whether the driver and the doctor are responsible for one indivisible injury (i.e. joint tortfeasors) or separate injuries is ultimately a question of fact for the jury.
In sum, to the extent Lasprogata and its progeny are cited for the general proposition that the driver and the doctor can never be joint tortfeasors, a logical argument can be made that such a principle is incorrect because (a) it is inconsistent with the general motion of joint tortfeasor responsibility which focus on whether two or more actors are responsible for the same injury, a proposition that can only be resolved on a case-by-case basis; and (b) it is contrary to other cases decided in related contexts, in particular the Buttermore line of cases and the Embrey case.