We are Pennsylvania Medical Malpractice Lawyers with office locations in Center City, Philadelphia and Havertown (Delaware County). From these two locations, we provide representation to people who have been injured – and to the families of patients who have been killed – by careless, sloppy, or incompetent medical treatment in the Greater Philadelphia area and in Southeastern, PA.
In addition to meeting clients in our offices, Over the years, we have had occasion to make home, hospital, and rehabilitation center visits. We meet with clients at the University of Pennsylvania, Thomas Jefferson University Hospital, Temple University Hospital, Lankenau, Frankford Hospital, and many others. We do our best to make it easy and convenient to meet with a quality medical malpractice lawyer.
Please feel free to read through our answers to some of the most frequently asked questions by both lawyers and consumers about Pennsylvania medical malpractice law and litigation. Please remember that this is not legal advice – rather, it is general information designed to provide a starting point for research into the law and procedure. It’s also designed to encourage you to seek appropriate and timely legal assistance with your case, claim, or matter.
How Much Does It Cost to Hire a Pennsylvania Medical Malpractice Lawyer and to Pursue a Pennsylvania Medical Malpractice Case?
It doesn’t cost anything to get started with us on a medical malpractice case in PA. Our Philly med mal attorneys provide free initial consultations in cases involving death and serious personal injury. After discussing your case, if the attorney believes it may have legal merit, then the attorney will assist in obtaining and reviewing medical records to investigate what happened and why. Our attorneys accept medical malpractice cases on a contingency fee basis. A contingency fee is the type of fee agreement where you only pay a fee if we win or settle your case.
How Long Does It Take to Get a Settlement in a PA Medical Malpractice Case?
A medical malpractice case is not generally a quick case to win or settle. Realistically, it can take several years to properly investigate, evaluate, prosecute, and settle or win a malpractice case. Preparing a medical malpractice case for a successful outcome often takes hundreds or thousands of attorney and paralegal hours and tens – sometimes hundreds – of thousands of dollars in investment. In the words of our law firm’s Managing Partner, “If you’re not in it to win it, please don’t call us.”
What are the Stages of a Pennsylvania Medical Malpractice Case?
The process of prosecuting a medical malpractice claim can be broken down into stages:
- Investigation – in the investigation stage, we are trying to figure out what happened and why. Typically, doctors and nurses do a poor job of explaining why the patient had a bad outcome. The key is to obtain all the pertinent medical records and review them to determine what went wrong and why it went wrong. Once we obtain all the pertinent medical records, our PA Medical Malpractice attorneys review the records to determine if it appears that medical negligence was committed. If so, we move to the next stage.
- Suit preparation and filing – in order to file a medical negligence lawsuit in Pennsylvania, we need to secure a review of the medical treatment by a physician, nurse, or another healthcare provider in the same field as the defendant. We work with surgeons, physicians, nurses, chiropractors, dentists, and other medical professionals to identify and document specific instances of negligence by the defendant or defendants prior to filing a lawsuit. Once we have sufficient medical expert opinion testimony to file and prosecute the claim, we draft and file a Complaint and Summons with the appropriate Court.
- Discovery – In the time between filing a lawsuit and trial in a Pennsylvania medical malpractice case, the parties (the plaintiff and defendant) engage in formal discovery. There are several different types of discovery. For example, the parties will send written questions to each other to be answered in writing. These are called “interrogatories”. The parties will send written document requests to each other to find out what documents the other side has. These are called “requests for production”. Another example of a type of formal discovery is called a “deposition”. This is a verbal Q&A session where an attorney gets to ask questions, a witness or a party to the lawsuit must answer the questions under oath, and a court reporter takes down everything that is said. Sometimes depositions are video-recorded and sometimes they are not. The big idea behind the discovery is to find out what evidence the other side has so that each party to the lawsuit can be prepared for trial.
- Settlement conference – In PA medical malpractice cases, the parties will often engage in pretrial settlement conferences. These settlement conferences may be referred to as mediation or conciliation. In a settlement conference, all parties and their attorneys generally meet with a neutral attorney who is not otherwise involved in the case in an attempt to resolve the case through a settlement.
- Trial – trial in a medical malpractice case in Pennsylvania oftentimes means a jury trial in the County Court of Common Pleas. At trial, we present all of the evidence and argument to show why and how the defendants were negligent, and we ask the jury to award compensation.
- Appeal – If any party (either plaintiff or defendant) believes that an error by the trial court resulted in the wrong result at trial, they may file an appeal. On appeal, the parties will be expected to file written briefs pointing out the error of law, and pointing to the transcript where the trial judge went wrong.
What is the Pennsylvania Certificate of Merit requirement?
Pennsylvania has a Certificate of Merit requirement in all lawsuits where the plaintiff alleges that a licensed professional committed malpractice, including PA medical malpractice cases. The Certificate of Merit requirement is located in the rules, specifically 231 Pa. Code § 1042.3.
Generally, a Certificate of Merit in a Pennsylvania medical malpractice case will be a signed legal pleading that states that an appropriate medical professional has reviewed the case and provided a written opinion advising that the defendant’s “care, skill or knowledge” was not up to acceptable professional standards and that this failure caused harm.
The Pennsylvania certificate of merit requirement is significantly different than an affidavit of merit and certificate of merit requirements in other states. In many states, the document must be signed by a reviewing medical treatment provider. In Pennsylvania, however, the Certificate of Merit is signed by the attorney for the Plaintiff.
What is the Pennsylvania Statute of Limitations in a Medical Malpractice Case?
Before you read this section, you should know that determining the limitations period in a Pennsylvania medical malpractice case is not something you should do for yourself with reference to information on the Internet. It’s something that is best answered by a qualified PA medical malpractice lawyer after reviewing all pertinent facts and circumstances.
With that being said, you may already be aware that the law limits the time to file a valid lawsuit. Generally, the Pennsylvania Statute of Limitations will bar a PA medical malpractice case if it is not filed within two years. 42 Pa. Cons. Stat. § 5524(2) states that “The following actions and proceedings must be commenced within two years: (2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.” Generally (but not always), in a Pennsylvania medical malpractice lawsuit, the two-year statute of limitations starts to run when the negligence of the defendant results in injury to the plaintiff, and thus the plaintiff has a right to file a lawsuit.
There are exceptions to the 2-year PA medical malpractice statute of limitations stated above. For example, Pennsylvania has a “discovery rule” in medical malpractice cases. Under the discovery rule, if the injured patient didn’t know and couldn’t reasonably have known that they were injured as a result of medical negligence, then the two-years doesn’t begin to run until they knew or reasonably should have known that they had a right to bring a medical malpractice lawsuit. For instance, let’s say we have a patient who had abdominal surgery. More than a year after the surgery, the patient starts experiencing pain in the side and other symptoms. The patient seeks treatment and answers for why she is experiencing this pain. She seeks medical attention as soon as the symptoms arise. Her new doctor tries several different treatments to alleviate the pain. An X-ray is taken. More than two years after the operation, she learns for the first time that a surgical sponge was left in her body. Now she has discovered the malpractice and she has a diagnosis, and now the two-years will start to run on her Pennsylvania medical malpractice case.
Another exception to the two-year statute of limitations involves fraudulent concealment of medical malpractice. If the doctor or other medical provider acts to conceal or delay the discovery of his or her negligence, then that may also “toll” the two-year period, or suspend the two-year period from starting to run. For example, let’s say that a patient injures her shoulder lifting groceries. An MRI shows a partial thickness tear of a tendon. Her chiropractor aggressively stretches and manipulates the shoulder and the pain gets much worse. The doctor tells the patient that oftentimes, these types of injuries get worse before they get better. The chiropractor continues treating the shoulder with gentle treatment for months, then more than a year. The pain never gets better and in fact, shoulder function decreases. Eventually, the patient switches care to another doctor who orders a repeat MRI. The new MRI shows a full-thickness tear of the rotator cuff tendon that has now retracted and is inoperable. The aggressive stretching and manipulation of the shoulder turned the mild shoulder injury into an inoperable, disabling injury and the negligent chiropractor concealed it from the patient while the clock was ticking on the malpractice claim. The actions of the chiropractor will likely result in a finding that the Statute of Limitations was “tolled” or suspended until the patient saw the new doctor and discovered that the first chiropractor negligently caused her injury.
If you would like to read more about these types of exceptions to the 2-year Pennsylvania medical malpractice statute of limitations, please check out the 2005 decision of the Pennsylvania Supreme Court in the combined cases of Fine v. Checcio and Ward v. Rice here.
Yet another exception exists in cases involving medical malpractice resulting in wrongful death, and in medical malpractice cases involving survival actions (an injury case that the plaintiff had before death, which passes or transfers to the patient’s survivor at the time of death). The Pennsylvania Supreme Court ruled in Dubose v. Quinlan, 173 A.3d 634 (2017) that the two-year statute of limitations on medical malpractice wrongful death and survival actions commences on the date of the patient’s death, and not on the date of the defendant’s negligent act or omission. In that case, the Court ruled that “we hold that Section 513(d) of MCARE establishes a two-year statute of limitations for medical professional liability cases in the form of wrongful death or survival actions, which accrues at the time of the decedent’s death.” MCARE is the Medical Care Availability and Reduction of Error, which is discussed in the next section on Statutes of Repose.
As you can see, determining the applicable limitations period in a PA medical malpractice case is not simple. The thing we want you to take away from reading this is that if you believe you may have a case of medical malpractice, you must get to a qualified PA medical malpractice lawyer as soon as possible to protect against the Statute of Limitations barring your case.
How Does the Statute of Repose Limit the Time to File a Medical Malpractice Case in Pennsylvania?
In addition to the Statute of Limitations, Pennsylvania has a Statute of Repose. A statute of repose is another type of law that limits the time in which a valid civil lawsuit case can be filed. The Pennsylvania Medical Malpractice Statute of Repose can be found in the Medical Care Availability and Reduction of Error (MCARE) Act in Section 513. The Statute of Repose gives a seven-year limitation on Pennsylvania malpractice claims against medical professionals, except in cases where a foreign object is left in the patient’s body. It also provides that a claim of a minor (someone under age 18) must be brought within seven years of the alleged wrongful act or prior to the minor’s 20th birthday, whichever is later. The full text of Section 513 is as follows (current as of July 2019):
Section 513. Statute of repose.
(a) General rule.–Except as provided in subsection (b) or (c), no cause of action asserting a medical professional liability claim may be commenced after seven years from the date of the alleged tort or breach of contract.
(b) Injuries caused by foreign object.–If the injury is or was caused by a foreign object unintentionally left in the individual’s body, the limitation in subsection (a) shall not apply.
(c) Injuries of minors.–No cause of action asserting a medical professional liability claim may be commenced by or on behalf of a minor after seven years from the date of the alleged tort or breach of contract or after the minor attains the age of 20 years, whichever is later.
(d) Death or survival actions.–If the claim is brought under 42 Pa.C.S. § 8301 (relating to death action) or 8302 (relating to survival action), the action must be commenced within two years after the death in the absence of affirmative misrepresentation or fraudulent concealment of the cause of death.
(e) Applicability.–No cause of action barred prior to the effective date of this section shall be revived by reason of the enactment of this section. (f) Definition.–For purposes of this section, a “minor” is an individual who has not yet attained the age of 18 years.
Again, the statute of limitations and statute of repose in a Pennsylvania medical malpractice case work together to make it difficult to determine the deadline to file a valid medical negligence case. The take away here is that if you believe you have a case of medical malpractice, we want you to get to a quality medical malpractice lawyer ASAP.
Are There Caps on Damages in Philadelphia and Delaware County, Pennsylvania Medical Malpractice Cases?
In many states across the U.S., the state legislatures have been convinced by the insurance industry to institute caps on general damages. General damages are items such as pain and suffering. Thankfully, Pennsylvania is not one of the states where caps have been imposed.
Does It Matter Which Attorney I Choose for a Pennsylvania Medical Malpractice Case?
A big factor in whether you receive justice in your Philadelphia-area medical malpractice case is the attorney that you choose. There is no class in law school for “Medical Malpractice 101”. Furthermore, the vast majority of lawyers have no undergraduate or other backgrounds in medical or surgical sciences. As a result, medical malpractice is a practice area best left to personal injuries with specialized training and experience. The choice of an attorney for your (or your family member’s) medical malpractice case is a very important decision and one that should not be taken lightly. We invite you to contact us about your case and interview our attorneys to determine whether we will be a good fit.