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Access Special Rates. Dew, Ark. Acts Vincent and Golden Living are joint tortfeasors. Vincent's alleged negligence in allowing Mr. Shelton to get a bedsore and Golden Living's admitted negligence in allowing the bedsore to get infected combined to produce Mr.

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Shelton's injury. I contend that the case of Applegate v. Riggall, Ark. Applegate, while attempting to remove a patient's left ovary, negligently cut the patient's left ureter. Subsequently, Dr. Riggall entered the case and negligently removed the patient's left kidney. On appeal, this court reversed the dismissal of a third-party complaint against Dr.

Riggall, holding that Doctors Applegate and Riggall were joint tortfeasors. The Applegate court stated that the two doctors were joint tortfeasors and thus potentially liable to each other for contribution because their independent acts caused or contributed to the same injury.

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This is precisely the situation we have before us. Vincent is being sued by the Sheltons because Mr. Shelton's bedsores allegedly originated as a the result of St. Vincent's negligence. Subsequently, the negligence of Golden Living caused one of the bedsores to become severely infected. The Sheltons are seeking damages for the combined harm caused to him by that bedsore, including pain and suffering and future medical expenses. There is no question that the right of contribution among joint tortfeasors is established by the UCATA. Heinemann v.

Hallum, Ark.

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For the foregoing reasons, I respectfully dissent. I do, however, concur in the majority's holding that the dismissal of the third-party complaint does not prevent St. Vincent from presenting to the jury evidence of Golden Living's responsibility for a portion of Mr. Metheny, supra, stands only for the proposition that a defendant is not entitled to a jury instruction seeking to apportion fault to a nonparty. The fact that a settlement has been reached with Golden Living and the amount thereof is admissible at trial.

Kraft Corp. Johnson, Ark. I write to acknowledge the problem that has been created in cases such as this in which there are multiple tortfeasors, but each is not a party to the case. While this court has not rejected the idea of an empty-chair defense, we did hold the statute providing the procedure for assessing nonparty fault unconstitutional because it violated the separation of powers. See Johnson v. However, we held that the law modifying joint and several liability, found in section 16—55—, clearly defines the right of a party and is, therefore, substantive.

For a case in which all tortfeasors are parties, then a defendant's right to only be held liable for the amount of damages specifically allocated to them is not a problem. However, there is no mechanism for doing so in cases in which other tortfeasors settle or are not otherwise proper parties.

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This court in Metheny held that a nonparty could not be put on the verdict form for the purpose of allocation. See Metheny, Ark. However, we went too far by holding that section 16—55— simply does not apply to a case in which there is only one defendant. This is an absurd result because in a case where there are multiple tortfeasors, several liability would apply to a defendant when the plaintiff chooses to sue all the tortfeasors together and if the other tortfeasors do not settle.

Each defendant is each and every defendant, any defendant. In the instant case, St. Vincent had a right, regardless of the fact that Golden Living had already settled and been dismissed, to be held liable only for the amount of damages allocated to it in direct proportion to its percentage of fault. Cases such as this are complex in that while St.

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It has become evident to me that while our current rules of practice and procedure are sufficient in the majority of cases, they are not sufficient for all—especially with joint and several liability having been abolished. Attempting to solve this problem on a case by case basis will only create a larger one. Therefore, rules must be established for the bench and the bar faced with this dilemma. I would immediately refer this matter to the Supreme Court Committee on Civil Practice for consideration and request that proposals be made as soon as possible.

Since there was not a rule in place to carry out the fault apportionment required in the instant case, the circuit court should have utilized its authority under Ark. By submitting this form, you agree to FindLaw. We respect your privacy. Thank you for subscribing! Cynthia Jeffrey. Professor in the Nursing department at St. Rate This Professor Share.

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