Pennsylvania Medical Malpractice Law

This article will summarize the law of medical malpractice in Pennsylvania.

Medical malpractice in Pennsylvania is generally defined as negligent or unskilled treatment by a healthcare professional that deviates from accepted medical care standards and results in injury to the patient. Ditch v. Waynesboro Hosp., 917 A.2d 317 (Pa. Super. 2007).

Medical malpractice in Pennsylvania is not limited to physicians. Malpractice claims can be brought against other licensed health care providers such as nurses, dentists, pharmacists, etc.

To prevail on a medical malpractice claim in Pennsylvania a plaintiff must establish 3 basic elements:

1. a professional duty was owed
2. breach of that duty by the defendant; and
3. the injury was a proximate result of that breach.

Unlike ordinary negligence cases, the first element ("duty") is usually not in dispute in medical malpractice cases. The existence of a doctor-patient relationship is often obvious. Under Pennsylvania law, however, a doctor-patient relationship does not arise when a third party (someone other than the patient) requests and pays for the medical services.

For example, if an insurance company hires a doctor to perform a physical exam of a patient prior to issuing life insurance, no doctor-patient relationship exists. So the patient could not sue the insurance company doctor for failing to diagnose a heart condition during the exam. See Elia v. Erie Ins., 581 A.2d 209 (Pa. Super. 1990).

Similarly, doctors do not owe any professional duty to non-patients. For example, if someone has a seizure while driving and gets in a car accident the other driver cannot sue their doctor for failing to diagnose or treat the condition that caused the seizure. See Hospodar v. Schick, 885 A.2d 986 (Pa. Super. 2005).

Establishing the second element of a medical malpractice claim is really a 2-part process. The plaintiff must: (i) define the applicable standard of medical care; and (ii) demonstrate that the defendant's treatment or actions breached that medical care standard.

In Pennsylvania, the "standard of medical care" is defined objectively as the skill, knowledge, and procedures normally used and accepted in the medical community. Plaintiffs in malpractice cases define the applicable standard of care by presenting an expert witness.

To demonstrate a "breach," a malpractice plaintiff must show that the doctor's actions were unreasonable and not consistent with accepted medical standards. It is not enough to for a plaintiff to present an expert who testifies that he would acted differently. Instead, malpractice plaintiffs must define the standard in the medical community then explain how the defendant deviated from it. See e.g., Maurer v. Trustees of the Univ. of Penn, 614 A.2d 754 (Pa. 1992)(fact that plaintiff's expert would have administered a certain drug to prevent injury was not relevant to establish the applicable standard of care when a drug was not accepted as standard treatment in the medical community).

Once duty and breach are established, a malpractice plaintiff must show that the defendant's breach of medical standards actually caused the plaintiff's injuries. In Pennsylvania, establishing causation does not require absolute certainty. Instead, plaintiffs can prove causation if the evidence reasonably shows that the defendant's actions were a "substantial cause" of the injuries.

Pennsylvania law also permits plaintiffs to establish causation under the "increased risk of harm" theory. The plaintiff must show that: (1) defendant breached the standard of care; (2) defendant's breach put plaintiff at increased risk of a particular type of harm; and (3) that particular harm did occur. The increased risk of harm theory is frequently applied in cases based on delayed diagnosis. For instance, in Renna v. Schadt, 64 A.3d 658 (Pa. Super. 2013) the plaintiff proved causation by showing that an 11-month delay in diagnosing her breast cancer increased her risk of harm by negatively impacting her treatment and prognosis.

A statute of limitations is essentially a legal deadline for filing a lawsuit. If you have a potential lawsuit it must be filed before the statute of limitations deadline. Otherwise, the court will dismiss the case. In Pennsylvania, the statute of limitations on claims for medical malpractice is 2 years from the date that the malpractice should have been discovered. 42 Pa. Cons. Stat. § 5524(2). That is a plaintiff must file his or her claim within 2 years after they first discover (or reasonably should have discovered) that they were injured as a result of medical malpractice.

Example: P undergoes surgery on his heart in 2013. After the surgery he has discomfort but nothing serious. In 2017, 4 years after the surgery, P has a heart attack. At that point it is discovered that the 2013 operation was not done correctly leaving P at increased risk of heart problems. The medical malpractice occurred in 2013 but the 2 year statute of limitations period does not start until P became aware of the malpractice in 2017. P has until 2019 to file his malpractice lawsuit.

There are some exceptions to this rule most notably for minors. When the injured patient is under the age of 18, the 2 year limitation period does not begin to run until the minor reaches the age of 18. 42 Pa. Stat. § 5533.

• Get more on the Pennsylvania malpractice statute of limitations

On top of the 2-year statute of limitation, medical malpractice claims in Pennsylvania are also subject to a 7-year statute of repose deadline. This essentially means that all lawsuits for medical malpractice must be filed within 7 years of the injury regardless of when it was discovered. There are 2 notable exceptions to this 7-year repose limit: (1) claims for foreign objects left inside the body; and (2) claims for injury to a minor.

Under Pennsylvania law lawsuits asserting medical malpractice claims must be supported by a certificate merit. Pa. R.C.P. No. 1042.3. The certificate of merit must confirm that a "qualified expert" has reviewed the plaintiff's case and provided a written opinion that the defendant's conduct did not meet the accepted medical standard of care. In other words, to file a malpractice case you need to get another doctor to say that the defendant doctors messed up. The certificate of merit must be submitted within 60 days of the lawsuit being filed or the case will be automatically dismissed. The obvious purpose of this requirement is to filter out potentially frivolous or excessive malpractice lawsuits.

In Pennsylvania, medical malpractice lawsuits are subject to special choice of venue limitations. Medical malpractice lawsuits in Pennsylvania can only be filed in the County where the alleged malpractice occurred. Pa. R.C.P. No. 1006.

In contrast to other states, Pennsylvania does not limit or cap the amount of recoverable compensatory damages in medical malpractice cases. There are some restrictions on punitive damages. Punitive damages for medical malpractice cannot exceed 200% of the compensatory damage award. So if compensatory damages are $100,000 punitive damages would be capped at $200,000. There is a limited exception to the punitive damages cap in cases involving "intentional misconduct." 40 Pa. Stat. § 1303.505.

Except in an emergency situation, a doctor must obtain the patients' informed consent before rending any treatment or performing a medical procedure. This means the doctor must explain the treatment or procedure and discuss potential risks and benefits with the patient. In Pennsylvania claims against doctors based on lack of informed consent are not considered medical malpractice claims. Rather they are treated as medical battery torts. A good example of this is the case of Cooper v. Lankenau Hospital, 51 A.3d 183 (Pa. 2012). In Cooper, the plaintiff sued her OB/GYN for medical battery when he delivered her baby via c-section after plaintiff had expressly refused consent.

Pennsylvania follows the rule of comparative negligence in medical malpractice. Comparative negligence is a defense that reduces the damages a plaintiff can recover if the plaintiff's own negligent acts partly contributed to the injury. This requires juries to allocate fault between plaintiffs and defendants, e.g., plaintiff was 10% at fault and the defendant was 90% at fault.

Under Pennsylvania law, if a plaintiff is more than 50% at fault they are not entitled to recover any damages. So if a jury determines that a plaintiff was 60% responsible and the defendant was 40% responsible for an injury the plaintiff loses the case. When the plaintiff's share of fault is less than 50% they are entitled to damages but the amount of damages will be reduced in based on the plaintiff's percentage of fault.

EXAMPLE: A jury finds the plaintiff 20% at fault and the defendant 80% at fault and awards damages of $1,000,000. The damage award will be reduced by 20% so the plaintiff will only receive $800,000.

Like many states, Pennsylvania does not allow medical malpractice plaintiffs to recover damages for medical expenses or lost wages if those expenses were covered by insurance or other benefits. So if a plaintiff incurs medical expenses of $100,000 and his health insurance covers $90,000 then he can only recover damages for the $10,000 that was not covered.

This is a general summary of medical malpractice law in Pennsylvania provided for informational purposes only. This is not intended as actual legal advice and should not be relied on in any meaningful way.

If you have questions about the law of medical malpractice in Pennsylvania or if you think you may have a malpractice case, contact the attorneys at Miller & Zois for free advice. You can call us at 1.800.553.8082 or submit a request for a free consultation.

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