Pennsylvania Medical Malpractice Law


What is Medical Malpractice

Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.

A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.

Medical Negligence

Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,

  • Failure to diagnose a medical condition or disease,

  • Misdiagnosis of a medical condition or disease,

  • Failure to provide medically appropriate treatment,

  • An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;

  • Mistakes in the prescription or dosing of medication.

Informed Consent

Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.

Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.

Damages in Pennsylvania Malpractice Cases

Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.

Damages Caps

Although some states limit the amount of money that a person injured by medical malpractice can recover as compensation for non-economic damages, Pennsylvania's state constitution prohibits caps on compensatory damages. That restriction does not apply to public agencies funded by taxpayer money, but Pennsylvania has not created special malpractice damages caps for those agencies. Pennsylvania limits punitive damages to no more than twice the amount of actual damages.

Joint and Several Liability

When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. Pennsylvania

"Modified several liability. (1) Where recovery is allowed against more than one person, including actions for strict liability, and where liability is attributed to more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant's liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned under subsection (a.2). (2) Except as set forth in paragraph (3), a defendant's liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the plaintiff and against each defendant for the apportioned amount of that defendant's liability. (3) A defendant's liability in any of the following actions shall be joint and several, and the court shall enter a joint and several judgment in favor of the plaintiff and against the defendant for the total dollar amount awarded as damages: (i) Intentional misrepresentation. (ii) An intentional tort. (iii) Where the defendant has been held liable for not less than 60 percent of the total liability apportioned to all parties."

The Collateral Source Rule

Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. Pennsylvania has abolished the collateral source rule and allows evidence of the amount actually paid to be submitted into evidence for consideration by the jury in its determination of the reasonable value of medical services.

The Statute of Limitations for Medical Malpractice in Pennsylvania

The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In Pennsylvania, a medical malpractice case must be commenced within two years of the date of the act, omission, or breach of contract alleged to have resulted in injury to the plaintiff, or within two years from the date the plaintiff reasonably should have discovered the injury, but not more than seven years after the act or injury underlying the claim. For foreign objects left within the body of the plaintiff, the statute of limitations starts to run when cause of the injury was or reasonably should have been discovered, and the seven year statute of repose does not apply. For malpractice claims by minors before the age of eighteen, a malpractice action may be commenced within seven years or before the minor's twentieth birthday, whichever period is longer.

Additional Rules for Pennsylvania Malpractice Cases

Additional rules affecting malpractice litigation in the State of Pennsylvania include:

Limits on Attorney Fees

The Pennsylvania Supreme Court has held limits on damages in malpractice cases to be unconstitutional under the state constitution.

Installment Payment of Damages

Future damage awards for medical and related expenses are paid in periodic payments, based upon the present future value of the damages award after payment of the proportionate share of legal fees and costs. An exception applies where the plaintiff objects to installment payments and stipulates that the total amount of future damages for medical and related expenses is less than $100,000, without reduction to present value.

Alternative Dispute Resolution

Pennsylvania operates a medical liability fund that provides malpractice coverage to physicians above their primary liability coverage. For malpractice claims within the fund's coverage limits, in which multiple carriers disagree on the disposition or settlement of a case, a party to a medical malpractice case may request that the Pennsylvania Department of Insurance provide a mediator to assist with the resolution f the case. If all parties agree, the outcome of the mediation proceeding may be made binding. Mediation proceedings are confidential.

Certificate of Merit Rules

A certificate of merit is a document created by a medical expert, attesting that the expert has reviewed the facts of the case and finds there to be merit to the malpractice plaintiff's claim. In aPennsylvania medical mapractice case, the plaintiff must file a certificate of merit along with the complaint or within sixty days of filing the complaint. The certificate of merit must attest either that a qualified, licensed professional has supplied a written statement that there exists a reasonable probability that the act or omission underlying the complaint fell outside of acceptable professional standards, and that the conduct was a cause in bringing about the harm to the plaintiff, or that the allegation of malpractice is based upon deviations from the standard of conduct by other licensed professionals for whom the defendant is responsible, or that no testimony from an appropriate, licensed professional is necessary for the prosecution of the claim. A separate certificate of merit must be filed against each defendant. When the allegations raised are unrelated to the acts of negligence that are the basis for the existing claim against the party, a defendant who joins or files a cross-claim against another party must file a certificate of merit.

Medical Expert Witness Restrictions

In order for a proposed expert witness to testify in a medical malpractice action, the proposed expert must possess sufficient education, training, knowledge and experience to provide credible, competent testimony. IN addition, an expert testifying on a medical matter must possess an unrestricted physician's license to practice medicine within the United States, must be engaged in or retired from active clinical practice or teaching within the prior five years or be otherwise deemed qualified to testify about medical or scientific issues by virtue of education, training or experience. Further, an expert witness who testifies about a physician's standard of care must be substantially familiar with the applicable standard of care for the specific care at issue as of the time that the standard of care was allegedly breached, must practice in the same subspecialty or a substantially similar subspecialty as the defendant physician and, if the defendant physician is board certified, be board certified by the same or a similar approved board.

A court may waive the similar subspecialty requirement may apply if the care provided by the defendant physician was outside of that physician's area of specialty or competence. A court may also waive the specialty and board certification requirement if the court finds that the proposed expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in or full-time teaching of medicine in the applicable subspecialty or a related field of medicine within the previous five-year time period

Apology Law

An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. Under Pennsylvania's apology law, any action, conduct, statement or gesture that conveys a sense of apology, condolence, explanation, compassion or commiseration emanating from humane impulses made by a licensed health care provider or its employee to a patient, or to a relative or representative of the patient, is inadmissible as evidence of liability. However, that limitation does not extend to a communication, including an excited utterance, that also includes a statement or statements of negligence or fault pertaining to an accident or event.

Why Consult a Medical Malpractice Lawyer

If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.

Copyright © 2016 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on Feb 15, 2016.