Pennsylvania Medical Malpractice Laws

If you are thinking of pursuing a claim of medical malpractice, it is likely that you have suffered a significant injury at the hands of your health care provider. This type of litigation can be incredibly nuanced, the complexities of which require skilled and experienced legal counsel. If you or a loved one has been a victim of medical malpractice, you have a specified time period in which you are able to bring a claim. If you fail to file a claim within that timeframe, it is quite possible that you will not be able to do so at any point and you will not be permitted to recover for your pain and suffering.

This page is intended to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in Pennsylvania; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney licensed in Pennsylvania. An experienced attorney will be able to guide you through the specifics of the laws that are more finely tuned with the details of your medical malpractice claim and explore whether your claim has the requisite merit to be filed in court.

Suing for Medical Malpractice in Pennsylvania

In Pennsylvania, all medical malpractice lawsuits are governed by the Medical Care Availability and Reduction of Error Act (“MCARE”). The Act requires healthcare providers and hospitals to carry at least $500,000 in insurance coverage while also establishing a fund within the State Treasury which aims to ensure reasonable compensation for people injured at the hand of medical negligence.

Medical malpractice case may be brought by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional. The law in Pennsylvania places a set time period for which a medical malpractice claim may be filed. If named as a defendant in a medical malpractice case, the law in Pennsylvania allows the defense of modified comparative negligence to be used which allows a damage award to be reduced in proportion to the percentage of fault assigned by a court.

When it comes to medical malpractice claims, many cases settle out of court prior to the case advancing to the trial stage of litigation. Pennsylvania is one of a few states that does not place a limit on damages that may be awarded to a plaintiff in a medical malpractice case.

How long do I have to file a medical malpractice case in Pennsylvania?

The law in Pennsylvania mandates that an action for personal injury must be filed within two years from the date the cause of action accrues. [1] This time limitation is known as the “statute of limitations” which refers to the period from the time an injury occurs or is discovered to the final date on which a medical malpractice lawsuit can be filed. If you decide to bring an action after the statute of limitations have passed, a court can dismiss your case and you will be left with no other legal option to pursue justice. The reason behind placing a time limitation on when you may file a medical malpractice claim is based on the notion that a court is interested in credible evidence in order to establish a cause of action. As time passes, it is possible that the crucial evidence that would initially aid your case would become less compelling, making your case all the more difficult to prove.

It is important to note that Pennsylvania law states that the statute of limitations clock does not begin to run until your injury has been, or should have been, discovered. This rule is known as the “discovery rule.” Once you discover or should have discovered, your injury, the two-year window to file your lawsuit begins. However, you may not bring an action for medical malpractice more than seven years from the time date that the alleged malpractice took place, regardless of when you actually discovered your injury. This is called statute of repose.

In Pennsylvania Medical Malpractice Cases, who is Responsible?

In Pennsylvania, you may bring a medical malpractice lawsuit for an injury you suffered against a licensed health care professional or health care provider based upon their negligence, misconduct, errors or omissions.

Those that can be held responsible due to being included in the definition of a “health care professional” include includes primary healthcare centers, personal care homes, nursing homes, birth centers, hospitals, physicians, nurse midwives and podiatrists, and any corporation, university or educational institution licensed or approved by the Commonwealth to provide healthcare in those roles. The rules also apply to chiropractors, dentists, nurses, pharmacists, physical therapists, psychologists, and veterinarians, as well as certain non-medical professionals. [2]

When bringing a medical malpractice claim against a healthcare professional or provider, the burden of proof rests with you and you must prove:

• The standard of care in the medical community for which the defendant’s treatment should be measured,
• That the defendant deviated from that standard,
• That the deviation proximately caused your injury.

What if I am partially to blame? Can I Still Recover Money for PA Medical Malpractice?

Pennsylvania, along with 32 other states recognizes the doctrine of modified comparative fault. The doctrine allows a court to assign a percentage of blame to each party involved in the lawsuit and any damage award is reduced in proportion to your apportioned fault. Of the 33 states that follow a modified version of comparative fault, Pennsylvania is one of 22 states (Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, South Carolina, Texas, Vermont, Wisconsin and Wyoming) that follow a 51% rule where you are only able to recover damages for an injury if a court determines that your apportionment of fault for your own injury is 50% or less. [5] In other words, if you wish to recover a monetary award for your injury, you must not have contributed more to the injury that the health care provider that you are suing.

For example, imagine you become sick after ingesting medication that was prescribed to you by your doctor. A court finds that your sickness was caused by a combination of a disclosed allergy and food that was against the doctor’s instructions that you consumed while on the medication. The court ultimately finds that the doctor should never have prescribed that specific type of medication due to your allergy and assigns the defendant 50% of the blame while assigning 50% of the blame to you for not following the doctor’s instructions when you consumed food that was not permitted while on the medication. Since you were assigned 50% of the blame, you would be able to recover a portion of damages because you were not found to have been 51% or more at fault for your injury. If the court awarded $100,000 in damages, you would be able to recover $50,000 after the apportioned 50% of fault is applied.

Some states do not adhere to a modified form of comparative fault and instead follow a doctrine of pure comparative fault where a plaintiff is able to recover for damages even if they are found to have been 99% at fault for their injury. An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. This is a reason why Pennsylvania decided to adopt a modified system.

Are there medical malpractice recovery caps in Pennsylvania?

If you are ultimately successful in your medical malpractice claim, you will be awarded damages in accordance with the doctrine of comparative fault. The term “damages” is synonymous with a monetary award which is used to compensate the plaintiff for the injuries they sustained as a result of the plaintiff’s negligence.

Compensatory Damages are meant to place you in the position you would have been in had your injury never occurred as they are meant to compensate you for your injury. Compensatory damages are usually split into two categories – economic damages and non-economic damages.

Economic damages reimburse you for out-of-pocket items that can easily be accounted for like:

• Medical bills
• Prescription fees
• Nursing costs
• Physical therapy costs
• Wages lost from an inability to work

Non-economic damages compensate you for occurrences that are hard to properly value. For example:

• Pain and suffering
• Loss of consortium
• Loss of enjoyment of life
• Future medical costs
• Loss of future wages

Punitive damages differ from compensatory damages in that their purpose is to punish the defendant for outrageous conduct. In Pennsylvania, punitive damages are only awarded when there has been willful or wanton misconduct or reckless indifference to the rights of others.

The law in Pennsylvania does not place a limit, or cap, on the amount of compensatory damages that you may receive in a medical malpractice lawsuit.

If punitive damages are awarded, they may not exceed 200% of the amount of compensatory damages. Further, 25% of the award must be paid to the MCARE Fund with the remainder paid to you. [3]

Expert witness reporting and testimony

The testimony given by an expert witness is not only invaluable to you but required by law, if you are bringing a claim of medical malpractice. It is the expert that will be able to establish that the defendant either lacked or failed to exercise the requisite degree of knowledge or skill held by healthcare providers in their field and that as a proximate result of the lack of knowledge or skill or the failure to exercise this degree of care, you suffered injuries that would not otherwise have been incurred.

The state of Pennsylvania has seen numerous medical malpractice claims be filed against healthcare professionals despite the fact that the claims were frivolous and lacked merit. Those cases tied up the court system and caused many skilled physicians to lose their practices due to insurance increases. To help remedy this problem, Pennsylvania has implemented a procedure requiring you to file an affidavit which accompanies your initial Complaint when filing your medical malpractice lawsuit with the court. [4]

Therefore, a certificate of merit must be filed within 60 days of the filing of a Complaint. The certificate of merit rules apply to any case where it is alleged that the professional deviated from a required professional standard of care. The certificate of merit must state one of three things; that an appropriate licensed professional provided a written statement that the treatment was below the standard of care and caused harm to the plaintiff; that a claim against a professional defendant is based solely on allegations that other professionals for whom the defendant is responsible were negligent; or that expert testimony is unnecessary for prosecution of the claim. The certificate itself only needs to state that there has been a report by a licensed professional but it does not need to identify what the statement says specifically or the identity of the licensed professional.

To be deemed qualified as a licensed professional capable of submitting their opinion in a certificate of merit, the expert must be substantially familiar with the applicable standard of care for the specific care in issue, practicing in the same sub-specialty as the defendant physician or a specialty which has a substantially similar standard of care for the specific care at issue and must be certified by the same board as the defendant if the defendant is certified. [5]

If you do not file the certificate of merit, it is likely that your case will be dismissed.

Are some parties immune from medical negligence cases?

Many states have implemented sovereign immunity whereby the State and its municipalities may not be held liable in a tort action. However, the law in Pennsylvania has waived its immunity when it comes to actions brought against the state itself or its employees. Sovereign immunity does exist for local units of government as well as their employees.

If an action is brought against the State of Pennsylvania and/or its employees, recovery is limited to $1,000,000 per occurrence. [6]

Settling medical malpractice cases in Pennsylvania

Many medical malpractice cases settle out of court. For this reason, many states have enacted laws that require some type of mandatory pretrial mediation or screening panel. However, the law in Pennsylvania does not require mandatory arbitration, mediation, or the submission of your medical malpractice case to a screening panel as a form of alternative dispute resolution prior to the claim reaching the trial stage of litigation.

However, a defendant healthcare provider may request a settlement conference or court-ordered mediation prior to exchange or expert reports. A mediation can be demanded but the demanding party must pay the costs of mediation. A party can request an order for production of expert reports and there are certain procedures for requesting expert reports. If expert reports are not produced after a court order, a case may be dismissed. The parties can request scheduling orders and pre-trial conferences. [7]

When compared with going to trial, settlement conferences can be appealing due to their low cost and expedited resolution.

Litigating medical negligence cases in Pennsylvania

A claim for medical malpractice in Pennsylvania is initiated by preparing a Complaint that must be served on the named defendants in your case. The defendant is then required to file a document that is called the Answer which provides responses to the allegations you made in the Complaint and will also list the affirmative defenses that will be used.

Initiating the Case

If the parties to a medical malpractice lawsuit are unable to reach a settlement, the claim will proceed to civil court. In Pennsylvania, a civil action begins by filing a Complaint with the clerk of the court. A Complaint should include:

• The proper name of every plaintiff and of every defendant.
• The venue for which you would like the case to be heard.
• A statement of facts constituting the cause of action.
• A demand for relief.

A civil Summons is also required and notifies the court and the defendant that you are filing a lawsuit. The Summons must be signed by the clerk of the court and must then, along with the Complaint, be delivered to all named defendants in the lawsuit. In addition to serving the Complaint and Summons, in order to begin your case, you must file an affidavit that states that a licensed physician has reviewed your case and all relevant medical documents and is of the opinion that your claim has merit and your case should go to trial. All named defendants are then required to provide a response to the complaint in the form of an Answer within 20 days of being served. An Answer is the defendant’s legal response to the Complaint.

Preparing for Litigation

After the Complaint, Affidavit, Summons, and Answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a procedure designed to allow disclosure between both sides of a lawsuit which allows both sides to know what to expect at trial.

In a medical malpractice case, medical records and doctor’s notes are usually items that will be requested for disclosure.

Each side may obtain discovery by:

• Deposition
• Written interrogatories
• Production of documents
• Physical or mental examinations
• Requests for admission

A deposition is a fact-finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. A deposition does not usually take place in a courtroom. Instead, the questions are usually asked in an attorney’s office where attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating. A court reporter is usually present during a deposition.

Written interrogatories are written questions sent to the opposing side that request answers which will be used to establish the facts that will be presented once the case goes to trial.

Production of documents is a request made to the opposing side whereby tangible documents are sought. In a medical malpractice case, an example of a request for production of documents would be a request to view the medical records of the claimant.

Request for admission is a set of statements drafted by one side and sent to the other where the receiver must answer in the affirmative or the negative. In a medical malpractice case, an example of a request for admission would be a statement like, “the defense has no evidence to support a basis that the claimant caused their own injuries.” If the defense answers in the negative, the claimant would know that the defense is intending to proffer some type of evidence in an attempt to prove that they were at least partially to blame for their own injury.

In a medical malpractice case, it is possible that you will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist. You must comply with any request unless you file a written objection stating the reason or reasons for your objection.

Pretrial Litigation

Litigation can be expensive and there is no guarantee that either side will come out unscathed. For these reasons, it is not uncommon for a case to settle prior to reaching the trial stage of litigation.

You can attempt to settle your case by way of informal conversations between representing attorneys or through alternative dispute resolution.

The law in Pennsylvania does not require the use of alternative dispute resolution as a means of settling a case but does allow its use on a voluntary basis. If the involved parties agree, a settlement conference proceeding may be sought which is less formal than a standard civil trial.

Trial

During a trial, all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of Pennsylvania: a judge or a jury. In Pennsylvania, it is not necessary to achieve a unanimous jury verdict. It is only necessary that seven (or five if there are six jurors, and six if there are seven jurors, or ten if there are twelve jurors) jurors agree upon a verdict.

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the cast being brought before the court. Once this process is completed, both sides will decide what parties they would like to remove from juror consideration. The law in Pennsylvania allows each side to have four peremptory challenges where jurors may be eliminated from consideration. [8] Once each side finishes announcing the parties they wish to have removed, the jury is impaneled.

In Pennsylvania, a person is considered to be qualified to be a juror if they are:

• a citizen of the United States;
• a resident of Pennsylvania
• at least 18 years of age; and
• of sound mind

After the jury selection is completed, opening statements will begin. An opening statement is an outline of what each side thinks the evidence will be and is offered to help jurors understand and follow the evidence during the trial.

From there, the plaintiff will begin to argue their case. The plaintiff will call witnesses at this time and each witness will be questioned by the plaintiff’s attorney and then likely cross-examined by the opposing side’s attorney. After all the plaintiff’s witnesses have been called and evidence has been presented, the plaintiff will rest their case.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their evidence. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place. During closing arguments, each side’s attorney will explain to the jury what they believe the evidence proves. In the final argument, each side will summarize the facts that were presented during the trial and attempt to show how they support their client’s case. The closing arguments allow the jury to better understand the case.

Finally, jury instructions are then be given by the judge to the jury and the jury is then free to deliberate and come back with a finding.

Appeal

Many times the losing side in a medical malpractice case will opt to appeal a decision from the lower court. An appeal is a legal proceeding which allows a higher court to review the decision rendered by a lower court. The notice of appeal must be filed with the clerk of the circuit court within thirty days (30) after the entry of the final judgment. [9]

How to find the best PA Medical Malpractice Lawyer for your case

Achieving the best possible outcome in your medical malpractice case is often contingent upon securing the best possible counsel to represent you in your action. Finding skilled legal representation can take your mind off of the legalese involved in a lawsuit so that you can focus on healing your injury.

One of the main motivating factors in bringing a medical malpractice lawsuit against a health care provider that caused your injury is to receive proper compensation for the pain, suffering, and losses you have likely endured. Without a damage award, it is likely that you would be forced to go out-of-pocket in order to help heal your injury. Therefore, it is easy to see why hiring proper legal counsel is of the utmost importance.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. The process of hiring an attorney or law firm should be on your timetable, not theirs. Do not let an attorney or firm pressure you into hiring them on the spot. In fact, you should interview more than one law firm to make sure that the counsel you end up with is the right fit. Once you have several candidates lined up, weigh the pros and cons of each and decide which you feel most comfortable with.

When looking for legal representation, you will want to search for an attorney or firm that has a wealth of knowledge and experience in cases that are similar to your own. Do not be afraid to ask an attorney or law firm their level of experience. It may also be wise to ask if they have ever litigated a case similar to yours and whether or not they were successful. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be. They can also inform you of the estimated cost of litigation. Do not be afraid to ask about their fee structure and if they prefer to litigate on an hourly or contingency rate.

You may want to get a feel for if you actually like the attorney or law firm that you are interviewing. While you do not have to be best friends with your legal counsel – in fact, it is best not to be – you need to decide if the person or people representing you are people you want to be in constant contact with day in and day out. Communication between attorneys and clients is incredibly important. You should also ask your potential attorney or firm how they communicate with their clients. People communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Your attorney should adapt their communication methods to fit your needs. If the attorney or law firm is unwilling to communicate with you the way you prefer, move on and find representation that will.

Some notable medical malpractice law decisions from Pennsylvania

These cases represent awards to plaintiffs in medical malpractice cases in Pennsylvania. These results are in no way a guarantee that subsequent, similar, cases will see the same results.

Kenneth and Elizabeth Del Grosso, h/w v. Delaware County Memorial Hospital, et al

The plaintiff, Kenneth Del Grosso, was admitted to the emergency room of Delaware County Memorial Hospital with left-sided neck pain and tingling down his left arm. The plaintiff was placed under the care of Dr. Karl G. Schwabe, and he was admitted for observation to rule out cardiac issues. The plaintiff later developed a fever, his pain escalated, and he was experiencing tingling in all four limbs by the next morning. The plaintiff was then moved to the critical care unit, where he was examined by Dr. Bonnie Rabinowitch and Hussam Antoun Yacoub. Dr. Rabinowitch listed a cervical abscess at the top of her differential and an MRI was ordered. The MRI was improperly read by Dr. Ben-Zion Friedman and Dr. Ranjit R. Shah.

Later, the plaintiff was unable to move any of his limbs. Dr. Rabinowich arranged for the plaintiff to be transferred to Thomas Jefferson University Hospital. Once transferred, the plaintiff immediately underwent emergency surgery, where doctors found a deep cervical abscess with anterior cervical decompression and fusion at C3-4, C4-5 and C5-6 of his spine. The plaintiff underwent cervical fusion and a bone graft but was left with acute quadriplegia and permanent deficits including a neurogenic bladder, bowel and bladder incontinence, and loss of sexual function.

A medical malpractice lawsuit was later filed by Del Grosso and his wife Elizabeth Del Grosso against Delaware County Memorial Hospital, Delaware County Memorial Hospital operator Health Access Network/Crozer-Keystone Health Network, Dr. Schwabe, Dr. Schwabe’s employers Primary Care Associates, P.C. and Prime Health Network, Nurse Rabinowitch, Dr. Yacoub, Dr. Friedman, Dr. Ben-Zion Friedman, Dr. Shah, and Delaware County Memorial Hospital’s-owned entities Infectious Disease and Travel Medicine, MRI Professionals, Inc., and Delco Radiology Associates in the Court of Common Pleas for Delaware County, Pennsylvania.

The plaintiff asserted the defendants breached the standard of medical care by negligently failing to timely and properly assess, observe, test, diagnose, and treat the plaintiff. It was also asserted that the doctors and hospital staff failed to properly communicate with each other, failed to recognize the seriousness and rapid deterioration of the plaintiff’s condition, and failed to recognize the signs and symptoms of infection, epidural abscess, cord compression, and acute neurological deterioration. A claim of negligence was made since the defendants did not immediately transfer the plaintiff to a hospital properly equipped to handle his spinal cord problem and negligently read the MRI results that clearly demonstrated the presence of an abscess.

The jury did not find the actions of Nurse Rabinowitch fell below the standard of medical care. The jury apportioned fault at 33% to Dr. Yacoub and 67% to Dr. Friedman.

An award of $12,015,270, including $8,850,000 for future medical expenses was issued. The jury also awarded Elizabeth Del Grosso $500,000.00 for loss of consortium.

White-Lightner v. Baublitz

The plaintiff, Theresa L. White-Lightner, had her left hip replaced by Dr. Seth D. Baublitz of Orthopedic Specialists of Central Pennsylvania in Lancaster. She later developed problems after the surgery which could be attributed to Dr. Baublitz improperly placing two bone screws which caused harmful contact between one or both of those screws and the plaintiff’s left sciatic nerve.

A lawsuit was filed and the case went to trial. At trial lawsuit, it was proven that the plaintiff suffers permanent nerve damage as a result of the medical negligence and is no longer able to walk without the assistance of a cane.

The jury awarded the plaintiff $1 million for loss of past and future earnings and $800,000 for past and future noneconomic loss, as well as about $1 million for future medical and other related expenses.

Footnotes

[1] 42 Pa. Cons. Stat. § 5524(2)

[2] 40 P.S. § 1303.503

[3] Pa. Stat. Ann. tit. 40, § 1303.505(e)

[4] Pa. R. Civ. P. 1042.3

[5] Pa. R. Civ. P. 1042.3

[6] 42 Pa. Cons. Stat. § 8528

[7] Pa. R. Civ. P. 1042.21

[8] 231 Pa. Code Rule 221

[9] 210 Pa. Code Rule 903