cutting the hedge: reforming comparative fault in medical malpractice

7/28/2019 Cutting the Hedge: Reforming Comparative Fault in Medical Malpractice

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12Journal of the Kansas Trial Lawyers Association

Cutting the Hedge: Reforming

Comparative Fault in Medical MalpracticeBy John W. Johnson and Edward L. Robinson

Professional Negligence

John W. Johnson is ofcounsel with Morris,Laing, Evans, Brock& Kennedy, Chtd.,in Wichita, Kan. Hehandles primarilycomplex civil litigationmatters, including

commercial litigation, medical malprac-tice, aviation accidents, products liability,and motor vehicle and truck accidents.

Johnson is the Professional Negligenceeditor for the Kansas Trial Lawyers As-sociation Journal, a past president of theKTLA and a member of the KTLA Boardof Governors.

I. IntroductionThey say you cant have it both

ways. Not so if you are a medicalmalpractice defendant and you dontwant to compare the fault of yourfellow defendants until they havesettled or been dismissed.

Kansas state courts are letting de-

fendants assert comparative fault as adefense but avoid responding to writ-ten discovery questions regarding thedefense. They are then letting defen-dants hedge their positions in thepretrial order by claiming that no onewas at fault for the plaintiffs injuries,but adopting the plaintiffs conten-tions of fault against any defendantwho later settles or is dismissed.

This best-of-both-worlds system,referred to in this article as compara-tive fault hedging, allows defen-dants to present a consistent messageof no-fault, yet attack as negligentthose who cannot be subject to acourt judgment.

This collusive yet clever practiceunfairly benefits defendants, undulyprejudices plaintiffs, and is harming

our court system. For these reasonsand more, this article will arguethat comparative fault hedging is apractice that should be stopped. Itwill explain the practice; discuss theapplicable rules of discovery; analyzeits many harmful consequences; andprovide a simple, practical, and fairsolution.

II. Comparative Fault HedgingRevealed

The typical scenario is as follows:A plaintiff sues multiple defendantsfor medical malpractice, all of whomassert comparative fault as a defense.

The plaintiff issues interrogatoriesand requests for admission regardingwhose fault the defendant is com-paring and what facts underlie thedefense. The defendants each refuseto answer, claiming not enough infor-mation is available.

The plaintiff discloses her expert

witnesses and reports, and the de-fendants later do the same. Deposi-tions occur and the expert disclosuresdeadline passes, prohibiting any newexpert opinions regarding fault. Thedefendants do not supplement theirdiscovery answers.

The final pretrial conference occurs,and the defendants do not specifywhose fault will be compared andwhat facts form the basis for thedefense. Instead, they each requestlanguage in the pretrial order stat-

ing that the defendants believe noone was at fault for the plaintiffsinjuries, but if any defendant shouldsettle or be dismissed, the remainingdefendants will compare the fault ofthe former party using the plaintiffscontentions of fault. The district courtgrants the request.

III. Rules of DiscoveryComparative fault or negligence is

an affirmative defense for which the

defendant has the burden of proof.

1

K.S.A. 60-258a abolished contributorynegligence, which barred recovery ifthe plaintiff was at all negligent andestablished comparative fault, whichallows the plaintiff to recover dam-ages if her negligence is less than thecausal negligence of the defendants.2It also states that each party is liableonly in the proportion that his causalnegligence bears to the amount ofnegligence attributed to all partiesagainst whom recovery is allowed.3

Comparative fault hedging

is unfairly beneficial to

defendants, unduly prejudicial

to plaintiffs, and impairs the

function and credibility of

our court system.

Edward L. Robinsonis an associate with

Morris, Laing, Evans,Brock & Kennedy, Chtd.He handles litigationmatters in environ-mental, real estate,consumer protection,

medical negligence, personal injury,and commercial law. He is also a trainedmediator. Robinson is a magna cum laude

graduate of Wichita State Universityand received his J.D. with honors fromWashburn University School of Law,where he served as comments editor forthe Washburn Law Journal.


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Although K.S.A. 60-258a addressesmany aspects of comparative fault,it does not discuss when the defensemust be asserted.

Comparative fault is generallyasserted in the defendants answerand will result in interrogatoriesand requests for admission from theplaintiff. K.S.A. 60-233 states that

interrogatories may relate to any mat-ter generally discoverable and thatan otherwise proper interrogatory isnot necessarily objectionable merelybecause an answerinvolves anopinion or contention that relates tofact or the application of law to fact.4

Interrogatories must be answeredwithin 30 days of service or 45 daysof service of process,5 but the districtcourt may order that an interrogatoryneed not be answered until the pre-trial order or later time.6 Each party

is limited to 30 interrogatories unlessthe court authorizes more.7

If a party fails to answer interroga-tories, after taking informal steps anissuing party may move for an ordercompelling responses.8 Failing toanswer includes providing evasiveor incomplete responses.9 If the partystill does not respond, the court mayrefuse to allow the party to supportthe claim or defense.10

A plaintiff may also use requestsfor admissions, which are statements

to the opposing party requesting anadmit or deny response.11 Theresponse time and court schedul-ing rules are generally the same asthose for interrogatories, but failureto respond to requests for admissionsresults in the statements being admit-ted.12 In addition, the opposing partymay not use lack of information asan excuse for not responding unlesshe has made reasonable inquiry andthat the information known or readilyobtainable by such party is insuffi-cient to enable such party to admit ordeny.13

Once discovery has concluded, thecourt and the parties will meet for thefinal pretrial conference and definethe issues for trial.14 The result of thefinal pretrial conference is the pretrialorder, which control[s] the subse-quent course of the action.15 Modi-fication is allowed by the partiesagreement or by the court to preventmanifest injustice.16

IV. The Harms of Hedging

A. Unfair Benefits to DefendantsComparative fault hedging unfairly

benefits defendants. First, it lets themhave it both ways: multiple defen-dants can claim as a whole that noone is at fault for the plaintiffs inju-ries, thus avoiding any fault compari-

sons among themselves. But it alsoallows defendants to switch their sto-ries as soon as any defendant settlesor is dismissed. From a strategic andprofessional perspective, medicalmalpractice defendants will not al-lege fault against each other. How-ever, once a defendant is dismissed,his liability is erased and he becomesfair game. Furthermore, pointing toan empty chair seems more palatable.

This two-step strategy insulatesparty defendants from ever having to

allege the others comparative faultand potentially increases the likeli-hood of a wholesale defense verdict,but also risks that a defendant may beheld liable for more than his pro-portionate share of fault if the juryreturns a verdict for the plaintiff.17

Second, comparative fault hedgingallows defendants to assert com-parative fault without proof. Thedefendants do not obtain their owncomparative fault experts and arecareful that their experts not addressthe fault of other defendants. Instead,if comparing fault becomes beneficial,the defendants will use the plaintiffsexpert reports, which detail the veryallegations of fault the defendantneeds to prove his affirmative defense.

Cherry-picking the plaintiffsexpert opinions allows the defendantsto avoid the irony of hiring a com-parative fault expert but claiming noone was at fault. It also is cheaper,because defendants need only invest

resources to prove they were not atfault and need not devote time andmoney proving the fault of their fel-low defendants.

Last, but certainly not least, com-parative fault hedging allows defen-dants to subvert the Kansas Rules ofCivil Procedure. Interrogatories andrequests for admission are gener-ally due within 30 days and must besupplemented as information be-comes known. Defendants sidestepthis requirement by claiming that not

enough information is available, evenif all expert witness disclosures havebeen made and all comparative faultinformation is known. The inter-rogatory responses are thus evasiveand incomplete and the requests foradmission are not answered, but thedefendants receive no penalty orsanction. If forced to answer pursuant

to a motion to compel, the responsewill be a parity of what is embeddedin their pretrial order contentions.

B. Undue Prejudice to PlaintiffsWhile comparative fault hedg-

ing indirectly harms plaintiffs bybenefiting defendants, it also causesclear and independent prejudice toplaintiffs. Comparative fault damagecalculations can affect a plaintiffsrecovery, and affirmative defensesimpact how a case should be present-

ed to a jury.18 Hiding the comparativefault ball denies plaintiffs criticalinformation about the defendantspositions and prevents them frompreparing for trial. Defendants faceno such uncertainty, as plaintiff s con-tentions of fact and law are defined inthe pretrial order and not subject toarbitrary change.

It is erroneous to argue that plain-tiffs are not prejudiced becausecomparative fault hedging may beforeshadowed in the pretrial order:

the objective of the pretrial order is todefine the issues of law and fact, notcreate conditional issues for trial.19Furthermore, no party should enduretrial by surprise when modern dis-covery rules are designed to give allparties a clear picture of each otherscase before trial.20

Comparative fault hedging also re-sults in plaintiffs experts being usedto support their opposing partiesdefenses. While it is not inherentlyunfair to use another partys witnessfor ones own benefit, it cannot bedeemed fair for a defendant to rest onhis laurels, knowingly fail to obtainany evidence to prove a defense forwhich he has the burden of proof,and then use his opponents expertwitnesses to prove the comparativefault of a phantom defendant whowas not identified in the pretrial or-der as one against whom fault wouldbe compared.

Finally, while plaintiffs have many


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14Journal of the Kansas Trial Lawyers Association

trial strategies at their disposal, thereis no equal and opposite strategy thatmitigates the effect of comparativefault hedging. Plaintiffs may move toamend the pretrial order once a de-fendant is dismissed; however, suchmotions are at the mercy of the trialjudge and at times are not granted.

C. Increased Court Workload

The practice of comparative faulthedging indirectly increases theworkload of the judicial system. If de-fendants knew they could not hedgebut would have to decide duringdiscovery whether to assert com-parative fault, they could not waitfor another defendant to settle andthen point the finger. If defendantscould not compare fault when mostconvenient, those who may be lessnegligent would be more inclined tocompare the fault of those who may

be more negligent, increasing the pos-sibility of settlement and reducing thecourts workload during all phases ofthe litigation.

V. Proposed SolutionThe consequences of comparative

fault hedging are complex and wide-spread, but the solution is simple: Re-quire defendants to comply with therules of civil procedure and supple-ment discovery requests as facts aremade known.

For medical malpractice cases,courts should use expert disclosuredates as the baseline for compara-tive fault deadlines. When expertdisclosures are complete, the partieshave every opinion that may be usedat trial to establish fault. The Kan-sas Rules of Civil Procedure requiresupplementation of responses to writ-ten discovery when this informationis available,21 and it cannot be arguedthe defendants are waiting for furtherinformation when none will be avail-able. Therefore, within a reasonabletime after disclosures are complete,all parties should be required torespond to any discovery requestsregarding fault. Furthermore, specificallegations of fault must be made asopposed to setting a condition subse-quent, which is the current practice.

Because disclosure of compara-tive fault allegations should be madewithin a reasonable time after expertdisclosures are complete, defen-

dants should not be allowed to waituntil the final pretrial conference torespond to written discovery regard-ing comparative fault. Moreover,defendants should not be allowedto include language in the pretrialorder stating no one is at fault for theplaintiffs injuries but adopting theplaintiffs contentions of fault against

any defendant who settles or is dis-missed.Kansas appellate courts have not

addressed comparative fault hedging;the United States District Court forthe District of Kansas has. In Cuiksav. Hallmark Hall of Fame Productions,Inc.,22 the plaintiff was a servicetechnician for D & D Rental, anequipment rental company.23 He waselectrocuted when a boom lift he wasworking on struck a power line.24

Cuiksa filed suit, and the defen-

dants asserted comparative faultagainst others not party to this law-suit.25 Cuiksa issued interrogatoriesand later obtained an order compel-ling their response.26 The defendantscontinued to claim the plaintiff wasthe only other party with whomthey would compare fault.27

At the final pretrial conference,the defendants proposed languagecomparing the fault of D & D Rentaland the plaintiffs supervisor.28 Themagistrate sustained the plaintiffs

objection that the defendants attemptwas untimely and inconsistent withprevious discovery responses.29 Thedefendants unsuccessfully moved toamend the proposed pretrial orderand filed objections to the denial,bringing the matter before the districtcourt.30

The court reviewed the magistratesdecision de novo and affirmed, em-phasizing that the defendants hadno less than three opportunities tospecify that they were comparingthe fault of [plaintiffs supervisor]and D&D Rental, yet chose to remainsilent.31 The court also stated thedefendants sat on their compara-tive fault assertions until the finalpretrial conference, which prejudicedthe plaintiff.32 The court was thusunwilling to allow a party, under theguise of trial strategy, to withholddiscovery concerning an affirmativedefense raised in its answer and thenreintroduce the defense in the pretrial

order.33

The defendants actions in Cuiksa aresimilar to comparative fault hedgingin medical malpractice: both involvedefendants who have informationresponsive to the plaintiffs writtendiscovery regarding comparativefault but fail to respond. In addition,both involve defendants who attempt

to assert comparative fault at the finalpretrial conference after not disclos-ing the assertions during discovery.

Cuiksa differs from medical mal-practice hedging in one importantaspect, which further illustrates whyits reasoning should be extended tomedical malpractice cases. In Cuiksa,the defendants had evaded ques-tions regarding comparative fault indiscovery but stated their assertionsat the final pretrial conference.34 Thecourt held that withholding informa-

tion during discovery was sufficientgrounds to prevent the defendantsfrom presenting the defenses at trial.35

Medical malpractice defendants aremore deceptive, refusing to disclosetheir comparative fault assertionsat the final pretrial conference andattempting to compare fault as soonas a party settles, which could occurduring trial. The fact that medicalmalpractice defendants may sit ontheir assertions of comparative faultuntil trial has begun shows their

actions are even more objectionablethan the defendants in Cuiksa.

VI. ConclusionComparative fault hedging in

medical malpractice cases should beprohibited. Kansas courts should notallow defendants to withhold discov-ery responses regarding compara-tive fault, state in the pretrial orderthat no one is at fault, yet adopt theplaintiffs contentions of fault against

any defendant who settles or is dis-missed. Comparative fault hedgingis unfairly beneficial to defendants,unduly prejudicial to plaintiffs, andimpairs the function and credibilityof our court system.

Kansas state courts should adoptthe Kansas District Courts reasoningin Cuiksa v. Hallmark Hall of Fame Pro-ductions, Inc.36 and rule that a defen-dants knowing failure to respond todiscovery requests regarding com-parative fault until another defendant


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Journal of the Kansas Trial Lawyers Association 15

settles is prejudicial to plaintiffs andsubject to penalty. Courts shouldrequire that both plaintiffs and defen-dants supplement discovery responsesin accordance with the Kansas Rulesof Civil Procedure and penalize thosewho willfully disregard those rules.

Endnotes1E.g., McGraw v. Sanders Co. Plumbing and

Heating, Inc., 233 Kan. 766, 773, 667 P.2d

289 (1983); PIKCIVIL 3D 106.01 (2005).2 KAN. STAT. ANN. 60-258a(a) (2005).3Id. 60-258(d).4Id. 60-233(c). This language clearly encom-

passes allegations of comparative fault.5Id. 60-233(b)(3).6Id. 60-233(c).7 KAN. SUP. CT. R. 135.8 KAN. STAT. ANN. 60-237(a)(2)(B) (2005).

9Id. 60-237(a)(3).10Id. 60-237(d), 60-237(b)(2)(B).11See Id. 60-236.12Id. 60-236(a).13Id.14Id. 60-216(d); KAN. SUP. CT. R. 140.15 KAN. STAT. ANN. 60-217(e) (2005).16Id.17 This article does not address whether a

strategic failure to compare fault resulting

in a judgment in excess of a defendants

proportionate negligence would subject an

attorney to liability.18 Insert text regarding reduced damages based

on proportion of fault.19 KAN. STAT. ANN. 60-216(d) (2005); KAN.

SUP. CT. R. 140 (2006).20Bodnar v. Jackson, 205 Kan. 469, 471, 470

P.2d 726 (1970) We have consistently

held that pretrial procedure was adopted to

enable courts to call parties before them and

cut away by agreement or admissions all

encumbrance to a speedy trial. One specific

purpose of a pretrial conference is to ac-

quaint each party in advance of trial with the

respective factual contentions of the parties

upon matters in dispute.21 KAN. STAT. ANN. 60-226(2) (2005).22 2004 WL 303553 (D. Kan. Jan. 26, 2004).23Id. at *1.24Id.25Id. at *2.26Id.27Id.28Id.29Id.30Id.31Id.32Id. at *3.33Id.34Id. at *2.35Id.36 2004 WL 303553 (D. Kan. Jan. 26, 2004).

Reprinted from the Kansas Trial Lawyers Association Journal, Vol. 30, No. 3, January 2007.

cutting the hedge: reforming comparative fault in medical malpractice

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