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BASICS OF MEDICAL MALPRACTICE SUMMARY OF PENNSYLVANIA LAW EXAMPLES OF MEDICAL MALPRACTICE CASES PREVENTION LINKS CONTACT US |
SUMMARY OF PENNSYLVANIA LAWThe following is a summation of statutes that apply to Pennsylvania Medical Malpractice cases. They are meant only as guidelines to understanding the laws that apply to Pennsylvania medical malpractice cases. The
general rule in Pennsylvania is that victims (plaintiffs) in medical
malpractice cases are entitled to receive damages from the defendant—even
if they have received compensation from other sources. Pennsylvania
has a modified doctrine of comparative negligence that maintains
that Med Mal claimants cannot receive compensation if their own
negligence was deemed greater than the negligence of the defendant(s). If
the claimant in a case contributes to the negligence that resulted
in injury, then the amount of damages that they can receive from
the defendants is lowered by the percentage of their own fault. According to Pennsylvania law, there are no caps on compensatory damages. However, all doctors and hospitals are anyone who is part of the Medical Professional Liability Catastrophe Loss Fund (CAT Fund) which has limited liability. Individual
doctors cannot incur punitive damages greater than double that of
the awarded compensatory damages. Punitive damages shall not be
less than $100,000 unless a lower verdict for compensatory damages
is returned by the trier of fact. Sovereign immunity (immunity from blame and monetary damages) cannot be used to justify medical errors made by health care employees of the Commonwealth or by a Commonwealth physician or related health care personnel. The Commonwealth and its employees may, however, claim that either:
The Commonwealth's liability is limited to $250,000 per claimant or $1,000,000 total. Government
immunity from damages for personal injury is available to local
agencies and their employees. A local agency is a government unit
other than the Commonwealth government. Immunity exceptions exist
for local government agencies, although no waivers exist for medical
malpractice claims. In those cases where local agencies are not
immune, damages cannot exceed $500,000 for each incident. Pennsylvania
accepts the concept of joint and several liability (more than one
party is liable for damages caused by medical errors). A plaintiff
may receive just compensation (as much as the law allows) from several
or joint parties who are not specifically barred by law. The CAT Fund---Medical Professional Liability Catastrophe Loss Fund---provides excess insurance to all health care providers in the state. More recently, Pennsylvania law has required greater levels of insurance by the private medical insurers, as well as lower CAT Fund excess insurance limits. Physicians and hospitals must now have basic insurance coverage to be eligible for excess coverage from the CAT Fund. Basic insurance carriers are required to provide a defense for their clients, although they may settle with a plaintiff for the limit of the insurance they provide and be released from further obligation. In these cases, the CAT Fund must continue the defense. Once
the CAT Fund has paid its limits, the health care provider may then
be liable. Providers who have coverage over and above the CAT Fund
limit, can access this once the CAT Fund has paid its limits. Beginning
in 1997, Pennsylvania law grants the court the ability to accept
periodic or installment payments, if all parties agree to the terms. Pre-judgment
interest (or delay damages) can be imposed by courts in cases that
involve bodily injury or death. Pre-judgment interest is the prime
interest rate plus one percent from the date the defendant was served
with process until the verdict is reached or one year from the date
of the malpractice. There are several circumstances in which pre-judgment
interest does not apply. The
Pennsylvania Supreme Court has held that former law which purported
to limit the contingency fee recoverable in a medical malpractice
action, is unconstitutional. Medical malpractice cases (whether they involve injury or death) must be brought within two years of the incident. However, if the injury isn’t known to the claimant, and this knowledge cannot be reasonably ascertained within the two-year period, the limitation period does not begin until it is reasonable to assume there was knowledge of the injury. This ruling does not exist in cases involving death. The
statute of limitations does not apply while an individual is deemed
to be insane, or while they are imprisoned. For underage claimants,
they have two years to bring a suit once they reach the age of 18. In
order to establish the accepted standard of care, Pennsylvania law
requires expert testimony. The only time when this is not required
is when, "the matter is so simple, and the lack of skill or
want of care is so obvious, as to be within the comprehension of
non-professional persons." Hospitals are not liable for the negligence of independently-contracted physicians. However, if a physician is an independent contractor with respect to a hospital, she may be deemed an agent of the hospital therefore making the hospital liable for her errors. For this to occur, either:
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