Pennsylvania Medical Malpractice Summary
Many Pennsylvania laws governing liability for medical malpractice were modified effective March 20, 2002, by the Medical Care Availability and Reduction of Error (MCARE) Act, codified at Pa. Stat. Ann. tit. 40, §§ 1303.101 to 1303.910 (Westlaw 2007). These laws include a system of state-sponsored excess insurance, discussed under >Patient Compensation Funds and Physician Insurance.
Statutes of Limitations
Medical malpractice actions are actions for injury to the person or wrongful death, which must be brought within two years. 42 Pa. Cons. Stat. § 5524(2) (Westlaw 2007). Pennsylvania courts have adopted a discovery rule for injuries to the person. The statute does not begin to run until the injured party discovers or reasonably should discover that he has been injured by another’s conduct. Fine v. Checcio, 870 A.2d 850 (Pa. 2005). The discovery rule does not apply in death cases, however. Pastierik v. Duquesne Light Co., 526 A.2d 323 (Pa. 1987). Neither insanity nor imprisonment extends the limitations period, but the statute does not begin to run against a minor until the age of eighteen. 42 Pa. Cons. Stat. § 5533 (Westlaw 2007).
For medical malpractice cases arising on or after March 20, 2002, the discovery rule is limited by a seven-year statute of repose that runs from the date of the act (two years for death cases). This does not apply to foreign objects unintentionally left in the body, nor does it require a minor to commence an action prior to age twenty. Pa. Stat. Ann. tit. 40, § 1303.513 (Westlaw 2007).
Contributory or Comparative Negligence
Pennsylvania has adopted a modified rule of comparative negligence. A plaintiff’s recovery is barred only if his contributory negligence is greater than the causal negligence of the defendants against whom recovery is sought. Otherwise, the plaintiff’s damages are diminished in proportion to the amount of negligence attributable to him. 42 Pa. Cons. Stat. § 7102(a) (Westlaw 2007).
Joint and Several Liability
Liability is joint and several. Each defendant is assigned an amount based on his percentage of causal negligence; however, a plaintiff may recover the full amount of a judgment from any defendant. 42 Pa. Cons. Stat. § 7102(b) (Westlaw PA-STANN02 database 2007) (version in force prior to invalid amendment). The legislature modified this rule for cases arising on or after August 18, 2002, so that only a defendant responsible for at least 60 percent of the total fault apportioned to all parties could be jointly liable for the full amount. 42 Pa. Cons. Stat. § 7102(b.1) (Westlaw 2007). However, the act amending § 7102 was declared to be void because it violated a provision of the Pennsylvania Constitution prohibiting bills from addressing more than one subject. Deweese v. Cortes, 906 A.2d 1193 (Pa. 2006).
Any defendant compelled to pay more than his percentage share of a judgment may seek contribution. 42 Pa. Cons. Stat. § 7102(b) (Westlaw PA-STANN02 database 2007) (version in force prior to invalid amendment). Contribution may be sought in either the principal action or a subsequent action. McMeekin v. Harry M. Stevens, Inc., 530 A.2d 462, 469 (Pa. Super. 1987), cert. denied, 541 A.2d 746 (Pa. 1988).
For medical malpractice cases arising on or after March 20, 2002, vicarious liability is governed by statute. A hospital is liable under the principle of ostensible agency for the acts of a physician on its staff who is not an employee only if (a) a reasonably prudent person would be justified in the belief that his care was being rendered by the hospital or its agents, or (b) the care was advertised or otherwise represented to the patient as care being rendered by the hospital or its agents. Pa. Stat. Ann. tit. 40, § 1303.516 (Westlaw 2007). The standard in cases arising prior to that date is similar. See Goldberg v. Isdaner, 780 A.2d 654 (Pa. Super. 2001), cert. denied, 820 A.2d 705 (Pa. 2003). Punitive damages cannot be awarded against a health care provider that is only vicariously liable unless the provider knew of and allowed the conduct that resulted in punitive damages. Pa. Stat. Ann. tit. 40, § 1303.505(c) (Westlaw 2007).
In order to prevail, a plaintiff must provide expert testimony that defendants deviated from the standard of care and that such deviation was the proximate cause of injury. Mitzelfelt v. Kamrin, 584 A.2d 888, 892 (Pa. 1990). The only exception is “where the matter … is so simple, and the lack of skill or want of care so obvious, as to be within the experience and comprehension of even nonprofessional persons.” Chandler v. Cook, 265 A.2d 794, 796 (Pa. 1970). Strict standards regulating the competency of medical experts went into effect May 19, 2002. Generally an expert must be actively engaged in clinical practice or teaching (or retired less than five years). To testify as to whether a physician met the standard of care, the expert must practice in the same or a similar specialty, and must be board-certified if the defendant is. Pa. Stat. Ann. tit. 40, § 1303.512 (Westlaw 2007). Courts have some leeway to waive these requirements if offered other evidence of an expert witness’s adequate training, experience, and knowledge. Id. In actions commenced on or after January 27, 2003, a plaintiff suing licensed professionals must file as to each of them a certificate of merit within 60 days of the complaint certifying that a qualified expert has supplied a written statement that there exists a reasonable probability that the defendant’s care fell outside acceptable professional standards and that such conduct was a cause of injury. Alternatively, the certificate may state that expert testimony is unnecessary to prove the claim, but in that case the court should not allow such testimony later. Pa. R. Civ. P. 1042.3 (Westlaw 2007).
Pennsylvania does not impose a cap on compensatory damages, but it does have a program of state-sponsored excess insurance. See Patient Compensation Funds and Physician Insurance. If punitive damages are awarded in a medical malpractice cases arising on or after March 20, 2002, 25 percent must be paid into the MCARE Fund rather than to the prevailing party. Pa. Stat. Ann. tit. 40, § 1303.505(e) (Westlaw 2007). Punitive damages against a physician cannot exceed 200 percent of compensatory damages absent intentional misconduct. Pa. Stat. Ann. tit. 40, § 1303.505(d) (Westlaw 2007).
Statutory Cap on Attorneys’ Fees
The Pennsylvania Supreme Court held that a former statute purporting to limit contingency fees recoverable in medical malpractice actions was unconstitutional. Heller v. Frankston, 475 A.2d 1291 (Pa. 1984).
For medical malpractice cases arising on or after March 20, 2002, the trier of fact must determine damages for future medical and other related expenses year by year, taking into account evidence of inflation and expected improvements in medical care. After taking out an initial amount for legal fees, payments for future medical expenses must be made over time, unless the plaintiff objects and stipulates that medical damages are less than $100,000. A defendant may discharge this obligation by purchasing an annuity from an approved carrier. When the plaintiff dies, the obligation to pay future medical expenses ceases. Pa. Stat. Ann. tit. 40, § 1303.509 (Westlaw 2007).
Collateral Source Rule
The collateral source rule has been substantially modified for medical malpractice cases arising on or after March 20, 2002. A plaintiff cannot recover for past medical expenses or past lost earnings that were covered by any public or private benefit received prior to trial. Pa. Stat. Ann. tit. 40, § 1303.508 (Westlaw 2007). However, this does not apply to life insurance, pension or profit-sharing plans, social security benefits, or benefits for which the state or federal government has a right of reimbursement from the recovery. Id. Prior law permitted the recovery of all damages caused by the defendant’s negligence, regardless of compensation from another sources. Denardo v. Carneval, 444 A.2d 135, 140-141 (Pa. Super. 1982).
Court rules provide for the imposition of pre-judgment interest, commonly referred to as delay damages, in bodily injury or death cases. Delay damages are computed at the prime interest rate plus one percent from the date one year after the defendant was served with process to the date of verdict. Pre-judgment interest is not recoverable, however, for either of the following periods: (a) after an offer of settlement made by the defendant is rejected by the plaintiff, if the plaintiff subsequently received a judgment which is not more than 125 percent of the rejected offer; or (b) during trial delays caused by the plaintiff. Pa. R. Civ. P. 238 (Westlaw 2007).
Patient Compensation Funds and Physician Insurance
Under Pennsylvania’s program of state-sponsored excess liability insurance, physicians and hospitals are required to obtain a prescribed amount of “basic insurance coverage,” which may be self-insured in approved cases, and to obtain excess coverage from the MCARE Fund (successor to what was called until 2002 the CAT Fund). Pa. Stat. Ann. tit. 40, § 1303.711 (Westlaw 2007). A joint underwriting authority provides basic insurance coverage to those who cannot find it through ordinary methods at rates available to those similarly situated. Pa. Stat. Ann. tit. 40, § 1303.732 (Westlaw 2007). Basic insurance coverage carriers must provide a defense, but they can settle with a plaintiff for their limits and obtain a release, in which case the MCARE Fund must continue the defense. Pa. Stat. Ann. tit. 40, § 1303.714 (Westlaw 2007). Liability is not capped at the MCARE Fund limits, so health care providers may purchase additional excess coverage. The excess carrier is protected from being required to drop down in case the Fund is dissolved or becomes insolvent. Pa. Stat. Ann. tit. 40, § 1303.711(h) (Westlaw 2007).
The following chart shows how required per-claim and aggregate limits have changed or are scheduled to change. Pa. Stat. Ann. tit. 40, § 1303.711 and 712 (Westlaw 2007); Pa. Stat. Ann. tit. 40 § 1301.701 (Westlaw PA-STANN02 database 2007) (repealed 2002).
|Policies Incepting||Basic Insurance Coverage||CAT or MCARE Limits|
|Through 1996||Physicians||$200,000/$600,000||$1 million/$3 million|
|Hospitals||$200,000/$1 million||$1 million/$3 million|
|1997 and 1998||Physicians||$300,000/$900,000||$900,000/$2.7 million|
|Hospitals||$300,000/$1.5 million||$900,000/$2.7 million|
|1999 and 2000||Physicians||$400,000/$1.2 million||$800,000/$2.4 million|
|Hospitals||$400,000/$2 million||$800,000/$2.4 million|
|2001 and 2002||Physicians||$500,000/$1.5 million||$700,000/$2.1 million|
|Hospitals||$500,000/$2.5 million||$700,000/$2.1 million|
|2003 to 2005||Physicians||$500,000/$1.5 million||$500,000/$1.5 million|
|Hospitals||$500,000/$2.5 million||$500,000/$1.5 million|
|2006 forward||Physicians||$750,000/$2.25 million||$250,000/$750,000|
|(subject to study)||Hospitals||$750,000/$3.75 million||$250,000/$750,000|
|Three years later||Physicians||$1 million/$3 million||None|
|(subject to study)||Hospitals||$1 million/$4.5 million||None|
The 2006 increase was postponed pursuant to a provision of the act that permits the Insurance Commissioner to do so if he finds that sufficient insurance coverage capacity is not available, Pa. Stat. Ann. tit. 40, § 1303.711(d) (Westlaw 2007), so the 2003-05 limits are still in effect. The MCARE Fund formerly provided the full first $1 million of coverage for claims that were more than four years old when first asserted, but this feature ended with policies incepting in 2006. Pa. Stat. Ann. tit. 40, § 1303.715 (Westlaw 2007). The MCARE Fund can be required to pay delay damages and post-judgment interest in excess of its limits. Pa. Stat. Ann. tit. 40, § 1303.714 (Westlaw 2007).
Pennsylvania has waived sovereign immunity for itself and its employees in medical malpractice cases, subject to certain limits. 42 Pa. Cons. Stat. § 8522 (Westlaw 2007). It is a defense that an employee was acting pursuant to a duty required by a statute or regulation, or that the act was within the discretion granted by a statute or regulation. 42 Pa. Cons. Stat. § 8524 (Westlaw 2007). Liability is limited to $250,000 per claimant and $1 million in the aggregate. 42 Pa. Cons. Stat. § 8528 (Westlaw 2007). Sovereign immunity has not been waived in medical malpractice cases against local units of government and their employees. 42 Pa. Cons. Stat. § 8542 (Westlaw 2007); Estate of Helsel v. Complete Care Services, L.P., 797 A.2d 1051 (Pa. Commw. Ct. 2002).
A “Good Samaritan” statute immunizes doctors and nurses who are present at or called to the scene of an emergency from liability for care rendered in good faith, except acts or omissions that are grossly negligent or intentionally designed to harm. 42 Pa. Cons. Stat. § 8331 (Westlaw 2007).
There is a procedure by which a party to a medical malpractice case can, by motion, ask the court to order a settlement conference or mediation before expert reports are exchanged. Pa. R. Civ. P. 1042.21 (Westlaw 2007). A former statute providing for exclusive jurisdiction over medical malpractice claims by an arbitration panel was held unconstitutional as an impermissible infringement upon the right to a jury. Mattos v. Thompson, 421 A.2d 190 (Pa. 1980).
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Revision Date: February 6, 1998