§ 33.012.Amount of Recovery

Two reductions applied in sequence, and the order matters.

First, if the claimant is not barred by the 51 percent rule, the court reduces the damages by a percentage equal to the claimant's percentage of responsibility. Second, if the claimant has settled with anyone, the court further reduces the award by the sum of the dollar amounts of all settlements.

The second reduction is a dollar-for-dollar credit, not a percentage one. A claimant who settles cheaply with a heavily responsible party keeps the benefit of the bargain; one who settles generously with a barely responsible party gives up the full amount received. The credit is measured by what was paid, not by what the settling person's share turned out to be.

Health care liability claims are the exception. Where the claim is filed under Chapter 74, the defendant may elect between the sum of the settlement dollars and a percentage equal to each settling person's percentage of responsibility as found by the jury. The election must be made in writing before the issues are submitted to the trier of fact — so before anyone knows what the percentages will be — and once made it binds all defendants. If nobody elects, or if the elections conflict, all defendants are treated as having chosen the dollar credit.

Electing blind is the point: a defendant must decide whether the settling doctors will be found more or less responsible than the dollars they paid, without the answer in hand.

Subsection (e) excludes workers' compensation benefits paid by or for an employer from the settlement credit. Those payments are not a settlement and do not reduce the award under this section.