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According to the Unified Judicial System of Pennsylvania, around 1,500 medical malpractice lawsuits are filed in Pennsylvania’s civil courts each year. Though there are many types of medical malpractice, the leading cause of these complaints is the healthcare provider's failure to diagnose a disease or condition and improper medicine prescription. However, at any point where the medical professional breaches their duty of care owed to a patient, and as a result, the patient is harmed, medical malpractice has occurred. Some other common examples of medical malpractice may include the following:

  • Misdiagnosis of, or failure to diagnose, a disease or medical condition

  • Improper treatment or unreasonable delay in treating a diagnosed medical condition

  • Failure to treat or perform surgery

  • Failure to prescribe medication

  • Negligence

This article will provide some of the common laws and information regarding medical malpractice laws in Pennsylvania. 

The Basic Elements of Medical Malpractice in PA

The injured party must prove four basic elements to have a successful medical malpractice case in Pennsylvania, duty, breach, causation, and damages.

  1. Duty—the healthcare provider had a legal obligation to follow a specific standard of care, and that care was owed to the patient. 

  2. Breach—the healthcare provider’s actions did not meet the required standard of care, thereby breaching the legal duty of care owed.

  3. Causation—the healthcare provider’s breach of the required standard of care resulted in or contributed to an injury.

  4. Damages—the injured patient suffered damages as a direct result of the injuries.

Professional vs Ordinary Negligence

Medical malpractice cases in Pennsylvania are categorized in one of two ways, professional or ordinary negligence. 

Professional negligence

Professional negligence is the physician’s failure to follow accepted standards of medical practice. These cases involve complaints that a physician failed to exercise reasonable care and skill in treating the patient—for example, a physician’s failure to perform a procedure within the acceptable standard.

Ordinary negligence

Ordinary negligence is any negligent act committed by a physician that causes harm to a patient. These cases arise when a physician performs a task outside the normal standard of care (negligently), causing injury to a patient. An example of this type of case is leaving surgical instruments inside a patient after surgery or performing the surgery under the influence of alcohol. 

Comparative Negligence

Pennsylvania medical malpractice law follows the rule of comparative negligence. Comparative negligence means that the jury would place a percentage of the fault between the plaintiff and the defendant. The plaintiff can only recover charges if they are placed at less than 50% fault. For example, if the jury decides that the plaintiff was 60% at fault for their injuries, they would be unable to recover any damages from the case, and therefore their claim would be dismissed. 

However, if the plaintiff is found to be less than the majority responsible (below 50%), they are entitled to recover damages. In this case, the total recovery amount may be reduced based on the percentage of fault the jury places on the plaintiff. For example, if the jury deems the plaintiff 30% responsible and the physician or medical entity 70% at fault, the plaintiff stands to recover 70% of the established damages. To recover damages from the lawsuit, you must be found less at fault than the healthcare provider. 

Informed Consent Actions

In Pennsylvania, it is standard practice for the doctor to obtain the patient's informed consent before performing any medical procedure or treatment. That means that the doctor is legally required to explain the treatment or procedure and discuss the potential risks and benefits with the patient before proceeding. Informed consent actions are not required in emergency medical situations. In the case of informed consent actions, the lawsuit would fall under medical battery, and evidence of negligence would not be needed. In this case, the plaintiff would be required to prove that had the physician provided sufficient information regarding the risks or benefits of the medical treatment course, their decision of whether or not to proceed would have differed. 

Collateral Source Rule

As in many other states, Pennsylvania abides by the Collateral Source Rule. In regard to medical malpractice claims, the Collateral Source Rule explains that victims are unable to recover damages for medical expenses or lost wages if they were already covered by insurance. Therefore, only the sum that was not covered by insurance or any other benefit is able to be recovered in the damage calculation. The plaintiff can use the medical expenses that resulted from the negligence as evidence in trial but not to recover the costs. There are a few exceptions to this rule. It is best to let a medical malpractice lawyer review the details of your claim and clarify if the collateral source rule applies to your case.

Certificate of Merit

Under Pennsylvania law, a medical malpractice lawsuit must be accompanied by a Certificate of Merit. The certificate of merit is essentially the support from a different doctor stating that the original doctor’s actions fell outside acceptable professional standards, thus proving the original doctor’s fault. The doctor providing the certificate of merit does not need to be the same as the expert witness called to trial. To be considered credible, the physician providing the certificate must be deemed sufficiently qualified through relevant education, training, or experience. 

Pennsylvania state law requires specific qualifications stating that the healthcare provider must hold an unrestricted physician’s license to practice and should be actively practicing in the relevant field or have retired less than five years ago. Their practice or teaching subject must be similar enough to give a statement on the standards of care relevant to the case. The new doctor will provide their written opinion that the standard of care did not meet the accepted medical standard in Pennsylvania, which resulted in the damages. The certificate of merit must be submitted within 60 days of when the lawsuit was filed. Without the certificate, the case will be dismissed automatically. 

Expert Witness Required

Expert witnesses are almost always required for medical malpractice lawsuits as medical issues and facts are generally too complex for non-medical professionals to understand without the aid of expert medical witnesses. Expert witnesses define the standard of care and help educate the judge and jury about what the healthcare practitioner should have done or refrained from doing under the specific circumstances in the case. An expert witness is needed to provide testimony that the defendant’s medical negligence caused the plaintiff’s injury.

Apologies and Gestures of Sympathy

The Pennsylvania Benevolent Gesture Act was signed into law on October 25, 2013.  This law was designed to allow healthcare providers the opportunity to reach out to patients or family members after an unanticipated outcome of a medical situation. It provides a certain degree of protection so the medical professional may proceed without fear that expressions of apology or compassion will be used against them in potential lawsuits. The sentiments must be expressed prior to the start of the lawsuit to be protected under the act. 

Pennsylvania Medical Malpractice Liability Insurance Requirements

In Pennsylvania, healthcare providers must maintain liability insurance to provide financial protection against any potential legal costs or damages that may arise in the case of a medical malpractice lawsuit. The required Pennsylvania medical malpractice insurance limits that physicians or surgeons must maintain are $1,000,000 per claim and $3,000,000 annual aggregate. That means the medical professional would be personally responsible for any claim above 1,000,000, and their overall yearly limit tops at 3,000,000. The insurance company’s policy insures the first $500,000 of the claim, and the MCARE fund will cover excess losses of up to another $500,000.

The Medical Care Availability and Reduction of Error Fund (MCARE) is a fund within Pennsylvania’s State Treasury that was created to ensure reasonable compensation for victims of medical malpractice events. The money in the fund is used to compensate malpractice sufferers whose damages exceed the amount covered by the insurance company on behalf of the defendant.  

How Much Can Someone Sue For Medical Malpractice in Pennsylvania?

There is no limit to the amount of damages a person can sue for in Pennsylvania. All financial losses that can be associated with the malpractice can be recovered. Damages are divided into three categories: General, Special, and Punitive. General damages refer to the hard to quantify concepts like pain and suffering. Special damages include actual costs such as medical bills, lost income, and out-of-pocket payments. Punitive damages are rare in medical malpractice claims and pertain to intentional harm. Some other examples of damages that can be included in the calculation are as follows:

  • Additional medical costs due to the negligence

  • Lost wages

  • Reduction in your earning capacity

  • Physical pain caused by the negligence

  • Emotional distress and suffering

  • Disability, disfigurement, and scarring.

  • Death

How Is Pain and Suffering Quantified in Pennsylvania?

You may wonder how emotional distress and suffering is quantified in cases of medical malpractice. In Pennsylvania, there is no equation to calculate the cost of suffering. This will be decided on a case-by-case basis by ideas such as the seriousness or duration of the resulting injury and symptoms. Suffering can be presented as short term (between the time of the malpractice and the trial) and future suffering (the long-term results of the malpractice). In presenting suffering, use as much evidence as possible to justify the compensation as reasonable. It’s important to exhibit how the harm has impacted the plaintiff’s family and work life and their ability to participate in hobbies and community activities. A plaintiff’s spouse can also be legally recognized to make a claim for Loss of Consortium, defined as harm to their marital relationship.

Punitive Damages

Under Pennsylvania law, punitive damages may be awarded for conduct that is the result of conscious and intentional disregard and indifference to the rights and safety of others. The plaintiff must be able to provide evidence that the defendant was acting intentionally to cause harm. For example, punitive damages may be awarded if a surgeon operates on a patient while drunk. The punitive damages cannot exceed 200% of the recovered damages. In addition, 25 percent of the awarded punitive damages must be paid to the Medical Care Availability and Reduction Error Fund.

What Is the Statute of Limitations in Pennsylvania for Medical Malpractice?

In Pennsylvania, the statute of limitations is two years, which means you have two years to file a medical malpractice lawsuit from when the injury occurred (or was discovered). Pennsylvania operates under the Rule of Discovery, meaning the statute of limitations countdown will begin when the patient realizes or should have realized that the medical treatment has caused harm. Think of the statute of limitations as a deadline. Once the injury is discovered, if you do not start the claim before the two years are up, the courts will dismiss your case.

There are a few exceptions to this rule. The most notable is for cases involving minors. For minors, the statute of limitations does not start until their 18th birthday and will expire on their 20th birthday. Additionally, under the Pennsylvania Statute of Repose, all lawsuits based on medical malpractice claims must be filed no more than seven years after the alleged malpractice occurred, regardless of when it was discovered. As of 2019, the seven-year time limit was deemed unconstitutional by the Pennsylvania Supreme Court. Therefore, if your claim has passed the two-year deadline, you must be able to prove that you did not (and could not have) discovered the healthcare provider's negligence before you did.  

Legal Resources for Medical Malpractice Victims in  Pennsylvania

Medical malpractice lawsuits can be very confusing and include a lot of legal jargon that is hard to understand. Below are three resources to help you make the most informed choices. 

The Pennsylvania Bar Association (PBA)

The Pennsylvania Bar Association is a one-stop shop for better understanding your rights and accessing resources in all areas of the law. You can find educational materials, news, directories, and events specifically for Pennsylvania on this site. Further, they have created a legal advice site where you can ask questions free of charge for qualifying individuals. 

Website: Pennsylvania Bar Association or Free Legal Answers

The American Patient Rights Association (APRA)

The American Patient Rights Association (APRA) is a non-profit consumer organization helping people to pay less for and avoid being harmed by their medical treatment. APRA is independent, non-partisan, and not associated with or influenced by any medical, health insurance, pharmaceutical organization, association, or government department. They believe all patients “have a right to transparency, clarity, full disclosure, honesty, and truthfulness in all medical matters, which are too often missing from patient communications.” 

Website:  The American Patient Rights Association (APRA)

Agency for Healthcare Research and Quality (AHRQ)

The Agency for Healthcare Research and Quality (AHRQ) is the lead Federal agency charged with improving the safety and quality of healthcare for all Americans. AHRQ develops the knowledge, tools, and data needed to improve the healthcare system and help consumers, healthcare professionals, and policymakers make informed health decisions.

Website:  The American Patient Rights Association (APRA)

Complete List of Medical Malpractice Liability Law

For your reference, here is a complete list of the medical malpractice liability laws in Pennsylvania. The link below is a PDF containing the full transcript of Pennsylvania Law. Type keywords into the search bar to locate the corresponding law when searching for a specific section.

Website:  Laws on Professional Medical Liability

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