Most of Pennsylvania's laws controlling cases of medical malpractice were amended on March 20, 2002 and compiled under the Medical Care Availability and Reduction of Error (MCARE), codified at Pa. Stat. Ann. tit. 40, §§ 1303.101 to 1303.910. Under the amended laws, a person injured by medical malpractice must commence the case within two years of the wrongful act. Notwithstanding the statute of limitations, the statute or repose provides that a plaintiff cannot bring a suit after seven years, excepting in the case of foreign objects left in the body or in the case of a minor not yet 20.
Statute of Limitations
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 must commence within two years.
Pennsylvania courts have held that the statute does not toll until the plaintiff discovers or reasonably should have discovered the injury caused by the defendant(s). In the case of a minor, the statute does not run until he or she turns 18.
Statute of Repose
There is a seven-year statute of repose in medical malpractice claims. However, the statute does not apply in cases where foreign objects are unintentionally left in the plaintiff's body. Also, the statute does not require a minor to commence an action before turning 20.
Contributory/Comparative Negligence
A plaintiff's recovery is barred if the plaintiff's contributory negligence is greater than that of the defendant(s). If not greater, the plaintiff's damages are diminished proportionate to the percentage of the plaintiff's negligence.
Joint and Several Liability
Where there are more than one tortfeasors, each defendant is liable proportionate to the total liability attributable to all defendants. Alternately, where a defendant has been held liable for not less than 60% of the total liability apportioned to all parties, the defendant's liability is joint and several, and the court shall enter a joint and several judgment in favor of the plaintiff and against the defendant for the total dollar amount awarded as damages.
Damage Cap
Although Pennsylvania does not impose a cap on compensatory damages, the state oversees the MCARE fund into which 25 percent of any awarded punitive damages must be paid into instead of going to the prevailing party. Additionally, except in cases of intentional misconduct, punitive damages against a negligent physician must not exceed 200 percent of the compensatory damages awarded.
Collateral Financial Sources
Past medical expenses or past lost earnings covered by public or private benefit received before trial are not recoverable at trial. This rule excludes life insurance, pensions, profit-sharing plans, and social security benefits.
Talk to a Medical Malpractice Lawyer
If you have been injured because of medical malpractice in Pennsylvania, you may recover compensatory damages. If you contributed to your injury, you may be barred from recovery if your fault is greater than the overall percentage of the defendant(s)'s fault. Even if your fault is not greater, your damages may be reduced proportionate to your percent of fault. Talk with an experienced medical malpractice attorney to discuss the details of your case.
