share of an injury, the rule of joint and several liability permits the injured person to collect the missing shares from other negligent defendants who can afford to pay. The principle behind the rule is that it is fairer to require a negligent party to pay more than their share of an injury than to deny compensation to the innocent (or less negligent) victim of injury. Concerns have arisen that this rule has been applied unfairly, requiring defendants who may have played only a minor role in someone’s injury to pay the entire award because they had the most money. Also, this rule is seen to 7 California Business and Professions Code §6146. 8 Such a defendant can generally try to force the other defendants to reimburse them in proportion to each one’s share of the fault. 10 have created an incentive to sue as many defendants as possible, particularly large institutions such as hospitals, to make sure someone has sufficient assets to pay the damages. These concerns have generated state laws that limit who can be required to pay an award for negligence when there was more than one possible defendant, and laws controlling how much each defendant may be required to pay. Kansas, for example, limits the amount of damages from any defendant to the portion of the injury caused by that defendant.9 In Pennsylvania, any defendant that is found responsible for 60% or more of an injury is jointly responsible for the entire amount; defendants who are responsible for smaller shares of an injury are only responsible for their own share of the injury.10 Ohio has another variant on this theme: a defendant determined to have negligently caused more than 50% of an injury is jointly responsible for the entire amount of any economic loss but is responsible only for his share of any non-economic loss.11 Lump Sum or Periodic Payments. Defendants who are found to have negligently injured a person often must pay all of the damages that are owed in a lump sum at the end of the legal action. Since awards often include estimated future losses, such as lost income or future medical expenses, some argue that it is unfair to require the defendant to pay all the damages immediately. Another issue is whether a defendant should be required to pay for estimated future damages that never materialize. These concerns have led to state laws that permit either party to elect that some damage awards (e.g., damages awards over $250,000) be paid periodically rather than as a lump sum. Some states, such as Florida, may require security for the future amounts.12 States also may permit a defendant to cease payments if anticipated losses do not occur (e.g., periodic payments for damages other than lost earnings may cease if the plaintiff dies).13 9 Kansas Statutes § 60-258a(d). 10 42 Pa. Cons. Stat. § 7102(b.1). 11 Ohio Revised Code § 2307.22. 12 Florida Statutes § 768.78(2)(b)2. 13 See, for example, Utah Code § 78-14-9.5(6). 11 Recoveries from Collateral Sources. Fairness concerns have also arisen over the longstanding practice of letting injured persons collect the full amount of judgments in lawsuits even if part of their losses also are paid for by insurance or some other source. These other sources of payment are often referred to as “collateral sources.” The argument for not reducing a plaintiff’s award by amounts received from collateral sources rests in part on the view that a negligent defendant should not benefit from actions that the plaintiff has taken to protect him or herself. A number of state laws, however, address this issue. Some states require that malpractice awards be reduced by amounts received from collateral sources, adjusted by any insurance premiums or other costs that the plaintiff bore.14 Another approach is to permit defendants to present evidence to the jury about amounts available from collateral sources, permitting the jury to consider whether or not to take the amounts into account in determining the damages owing. In some states, the treatment of collateral source payments varies by the source (e.g., in Tennessee, payments by government programs or employer-sponsored insurance are considered collateral sources and will offset a jury award, but amounts paid by insurance held directly by the plaintiff do not count to reduce a jury award.)15 How Much Time Should People Have to Bring Lawsuits? Statutes of Limitations. Another area where states have passed new laws relates to the length of time that patients have to file a malpractice suit after the event that gives rise to the action. This period is called the “statute of limitations.” Most types of legal actions are subject to statutes of limitations. They serve several purposes, such as helping to assure that relevant facts and potential witnesses will be available and current when the dispute is adjudicated, and providing potential defendants with some certainty that they will not be held responsible for actions that occurred long ago. At the same time, some injuries do not manifest themselves immediately, so statutes of limitations often have special provisions that extend the period for bringing a 14 See, for example, Florida Statutes § 768.76. 15 Tennessee Code § 29- 26-119. 12 lawsuit for some period after the injury should reasonably have been discovered. Statutes of limitation address the issue of “certainty,” which has been an important consideration for states