Just recently, the Arizona Supreme Court ruled that the Original Tortfeasor Rule (OTR) is no longer applicable. This ruling comes after the Cramer v. Starr decision was taken up to the Arizona Supreme Court. The Court decidedly ruled that the OTR should be discontinued as it is a direct contradiction of the comparative negligence framework which has been the standard of negligence in the state of Arizona for the past few decades. And quite frankly, the OTR is an illogical and rather unfair means of establishing liability.
Original Tortfeasor Rule – The Wrong Approach
Cramer v. Starr is a case where the plaintiff was injured in a car accident with defendant. As a result of the injury, plaintiff had to undergo spinal surgery. The defendant designated the physician who was responsible for the surgery as a nonparty at-fault. The trial court held that this nonparty at-fault designation was inconsistent with the OTR. In other words, defendant could by extension be found liable for the negligence brought on by a medical provider.
The liability would not be placed on the physician or the medical staff but rather it would indirectly transfer to the defendant by way of the OTR. OTR states that the defendant will be held liable for any injuries that arise from the surgery performed on the plaintiff. Even if the medical staff is negligent in their operation, the liability will be transferred to the defendant. The case worked its way up to the Arizona Supreme Court, where the Court ultimately decided that the OTR is no longer applicable and that the defendant’s liability should be in accordance with the comparative negligence framework.
A More Accommodating Standard
This does not mean to say that a defendant cannot be liable for injury brought on by medical providers; rather it limits defendant’s liability to what is deemed as “foreseeable” harm brought on by medical providers. If it can be proven that defendant was aware that a certain surgical operation could foreseeably lead to added injury to the plaintiff, then they can be held liable.
This approach is still in compliance with the comparative negligence framework. Just to step back for a moment, a comparative negligence framework is the standard of negligence that is slowly becoming the accepted standard in states all around the country. This framework on its face seems like the more fair and equitable standard than its counterpart, contributory negligence, which is slowly but surely fading out.
Comparative negligence allocates liability based on the degree of fault of both parties. If say that the defendant was only partially at fault, then he will be held liable for something like 30% of the damages. At the same time, if the plaintiff is remotely at fault, damages will be reduced accordingly. In a contributory negligence framework, the defendant will be free from liability if the plaintiff is even slightly liable. This seems rather extreme. The comparative negligence framework gives a fair treatment of the case by allocating liability in accordance with the facts of the case.
The OTR does not go hand in hand with the comparative negligence framework, because now the defendant will be held liable for the actions of a medical professional who has engaged in medical malpractice or the like. Comparative negligence is contrary to this and that is why the OTR has been tossed aside by the Arizona higher courts. If both systems were to exist concurrently, this would create a void in the legislative map. It would be a tug of war between an almost extinct and rather unrealistic law with a more modern and well defined law which suits both parties.
Comparative Fault as a Fairness Standard
Comparative fault, as mentioned before, is taking over the legal landscape. Most states, including California, have conformed to this standard and it won’t be long before it becomes uniform across the states. The significance of such an approach is that it is not slanted towards one side or the other. A system that throws everything it has at the defendant is simply not fair. Of course, the “foreseeability” which has been ingrained in the civil law framework for a long time is still a factor and can still pin the defendant if they reasonably should have known that an incident was likely. Otherwise, a defendant who has no involvement in the plaintiff’s medical treatment should not be held responsible. All the same, it would not be fair if the plaintiff was not allowed to recover.
Under the comparative standard, plaintiff can recover all or nothing, depending on the circumstances of the case. This is good because they can recover as much as 100% if the defendant is entirely at fault or they might be limited to a lesser amount, which is fair to the defendant and also gives plaintiffs an incentive to not bring frivolous lawsuits. Of course, this is not to say that this standard is perfect but it currently is the best choice available and is a sign of things to come. The mindset has been to point fingers at the guy who caused the accident and there is obviously merit to this but there have to be boundaries and holding one man liable for a chain of events is not always the most moral or legally sound move.