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The Law of Medical Malpractice in Pennsylvania:

A Survey of Basic Considerations

Pennsylvania medical malpractice law is among the most complex legal practice areas. The statutes, caselaw, and regulations governing medical malpractice law in Pennsylvania are highly technical. For instance, there are very strict and complicated filing deadlines that must be followed, or the injured patient’s case will not even be allowed to proceed, regardless of the actual substantive merits of the claim. Similarly, there are myriad other esoteric rules in place that make successfully prosecuting a medical malpractice claim in Pennsylvania exceptionally difficult for anyone other than an experienced and knowledgeable medical malpractice lawyer.

Unfortunately, this complexity has given rise to a great deal of confusion, misunderstanding, false assumptions, and inaccurate beliefs about medical malpractice claims in Pennsylvania by both members of the general public as well as practicing lawyers. This widespread lack of understand is not in anyone’s best interests, especially injured patients and their loved ones who are desperate for accurate information and answers.

This article seeks to address the state of confusion by discussing both the broad fundamental principles and many of the key technical mechanics of Pennsylvania medical malpractice law in practice. It is intended that this article do so in plain language with minimal use of legal jargon, so the material presented is easily accessible for both non-lawyers and legal practitioners alike.

Section I below discusses the broad basic principles and concepts of medical malpractice law in Pennsylvania. After reading this Section, the reader will have an understanding of the basic issues for consideration in a medical malpractice case. Sections II through XIexamine specific key technical aspects in initiating and prosecuting an action for medical malpractice in Pennsylvania.

Below is a list of topics covered in this article. You can jump directly to a topic by clicking on it.

I. Overview of Basic Principles and Concepts
-What is Medical Malpractice in Pennsylvania?
-Required Elements of a Medical Malpractice Claim in Pennsylvania
-Introduction
-The Four Basic Elements
-Establishing Causation
-Res Ipsa Loquitur

II. Filing Deadlines for Medical Malpractice Claims
-Introduction to Statute of Limitations
-Statute of Limitations for Medical Malpractice Claims in Pennsylvania
-The Discovery Rule
-Introduction
-The Discovery Rule in Pennsylvania
-Fraudulent Concealment
-Minors

III. Statute of Repose—Absolute Bar to Recovery
-Introduction
-Statute of Repose in Pennsylvania

IV. Immunities and Limitations on Liability
-Sovereign Immunity
-Introduction
-Sovereign Immunity in Pennsylvania
-Good Samaritan Law
-Introduction
-Good Samaritan Law in Pennsylvania
-Additional Immunities and Limitations on Liability

V. Required Elements of a Medical Malpractice Complaint

VI. Certificate of Merit

VII. Expert Medical Witnesses
-Introduction
-Who Qualifies as An Expert Medical Witness
-Admissibility of Expert Testimony About Scientific Principles and Discoveries
-Introduction
-Admissibility of Scientific Principles and Discoveries in Pennsylvania

VIII. Comparative Negligence
-Modified Comparative Negligence with 51% Bar Rule
-Apportionment of Fault with Multiple Defendants

IX. Limitations on Damages
-Economic and Non-economic Damages
-Punitive Damages
-Willful, Wanton, or Reckless Indifference
-Statutory Limitations

X. Patient Compensation Fund: MCARE Fund

XI. Apologies and Gestures of Sympathy

I. Overview of Basic Principles and Concepts</2>

What is Medical Malpractice in Pennsylvania?

Medical malpractice is a specific type of professional negligence by a healthcare provider.  In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice.  When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.

The Pennsylvania Supreme Court defined medical malpractice as “the unwarranted departure from generally accepted standards of medical practice resulting in injury to a patient, including all liability-producing conduct arising from the rendition of professional medical services.”  Toogood v. Rogal, 824 A.2d 1140, 1145 (Pa. 2003).

Required Elements of a Medical Malpractice Claim in Pennsylvania

Introduction

It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under Pennsylvania law.  Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation.  Some degree of risk is inherent in most medical procedures.  The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment. In fact, Pennsylvania is one of the few states that has codified this general legal principle.  Section 105 of the Medical Care Availability and Reduction of Error (“MCARE”) Act[1] states: “In the absence of a special contract in writing, a health care provider is neither a warrantor nor guarantor of a cure.”

The law simply requires that healthcare providers meet the legally required standard of care while rendering medical treatment.  While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.

Pennsylvania medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury.  The negligence must be the actual cause in fact as well as the proximate cause of the patient’s injury.The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior.  That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.  The Pennsylvania Supreme Court stated the principle as follows:

It is settled in the law that … the mere occurrence of an injury does not prove negligence and that an admittedly negligent act does not necessarily entail liability; rather even when it is established that the defendant breached some duty of care owed the plaintiff, it is incumbent on a plaintiff to establish a causal connection between defendant’s conduct and the plaintiff’s injury.  Hamil v. Bashline, 481 Pa. 256, 264-265 (1978).

The Four Basic Elements

There are four basic elements of a compensable medical malpractice claim that must all be proven by the plaintiff. Hightower-Warren v. Silk, 548 Pa. 459, 463 (1997).

  1. Duty—the healthcare provider owed the injured patient a legal duty to observe a specific standard of care;
  1. Breach—the healthcare provider’s actions deviated from or fell below the required standard of care thereby breaching the legal duty of care owed;
  1. Causation—the healthcare provider’s breach of the required standard of care proximately caused or contributed to causing injury to the patient; and
  1. Damages—the injured patient suffered damages as a direct result of the injuries.

Under Pennsylvania law, the plaintiff has the “burden of proving that defendant was negligent and that his negligence was the proximate cause of the … plaintiff’s injuries.”  Cwiakala v. Paal, 427 Pa. 322, 324-325 (1967).  “[T]hat burden must be sustained by a preponderance of the evidence.”  Hamil, 481 Pa. at 265.

The Pennsylvania Supreme Court pronounced that the “standard of care required of a physician or surgeon is well-settled.”  Donaldson v. Maffucci, 397 Pa. 548, 553-554 (1959).The Court articulated it as follows:

A physician who is not a specialist is required to possess and employ in the treatment of a patient the skill and knowledge usually possessed by physicians in the same or similar locality, giving due regard to the advanced state of the profession at the time of the treatment; and in employing the required skill and knowledge he is also required to exercise the care and judgment of a reasonable man. [emphasis in original]Id.

A “specialist physician is held to a higher standard of care than a general practitioner when the specialist is acting within his or her specialty.”  Winschel v. Jain, 925 A.2d 782, 797 (Pa. Super. Ct. 2007).  In particular, a specialist “is expected to exercise that degree of skill, learning, and care normally possessed and exercised by the average physician who devotes special study and attention to the diagnosis and treatment of disease within the specialty.”  Maurer v. Trustees of University of Pennsylvania, 418 Pa. Super. 510, 517-518 (1992).

In most Pennsylvania medical malpractice cases,expert witness testimony is required.  The reason is because “the negligence of a physician encompasses matters not within the ordinary knowledge and experience of laypersons a medical malpractice plaintiff must present expert testimony to establish the applicable standard of care, the deviation from that standard, causation and the extent of the injury.”  Toogood v. Rogal, 824 A.2d 1140, 1145 (Pa. 2003). That is, “the complexities of the human body place questions as to the cause of pain or injury beyond the knowledge of the average layperson.”  Hamil, 481 Pa. at 267.  The plaintiff’s expert witness must “testify, to a reasonable degree of medical certainty,” regarding the applicable standard of care, defendant’s breach, and that negligence was the proximate cause of the plaintiff’s injury.  Mitzelfelt v. Kamrin, 526 Pa. 54, 62 (1990).

The Pennsylvania Supreme Court defined proximate cause as “a term of art denoting the point at which legal responsibility attaches for the harm to another arising out of some act of defendant.”  Hamil, 481 Pa. at 265.  Proximate cause “may be established by evidence that the defendant’s negligent act or failure to act was a substantial factor in bringing about the plaintiff’s harm.”  Id.

The weight or credibility to give the testimony of an expert witness is within the jury’s discretion.  The Pennsylvania Supreme Court stated that the jury can “believe any part of the witnesses’ testimony that they chose and disregard any portion of the testimony that they” disbelieve.  Mitzelfelt, 526 Pa. at 66.

Establishing Causation

In addition to establishing the applicable standard of care and breach thereof, expert medical testimony is generally required to establish causation.  Commonwealth v. Hamilton, 459 Pa. 304, 329 (1974).  Expert “testimony is needed to establish that the injury in question did, with a reasonable degree of medical certainty, stem from the negligent act alleged.”  Hamil, 481 Pa. at 267.  With respect to the term‘reasonable degree of medical certainty,’ the Pennsylvania Supreme Court stated: “In establishing a prima facie case[2], the plaintiff need not exclude every possible explanation of the accident; it is enough that reasonable minds are able to conclude that the preponderance of the evidence shows defendant’s conduct to have been a substantial cause of the harm to plaintiff.”  Id. at 266.

The Pennsylvania Supreme Court provided this rationale for requiring expert medical testimony on the issue of causation.

There is a logical reason for the rule. The opinion of a medical expert is evidence. If the fact finder chooses to believe it, he can find as fact what the expert gave as an opinion. For a fact finder to award damages for a particular condition to a plaintiff it must find as a fact that the condition was legally caused by the defendant’s conduct.  Here, the only evidence offered was that it [the injury] was “probably” caused [by the accident], and that is not enough. McMahon v. Young, 442 Pa. 484, 486 (1971).

Res Ipsa Loquitur

The doctrine of res ipsa loquitur is permitted in medical malpractice cases as a very narrow exception to the requirement of expert testimony in establishing causation.Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 478 (1981).  In Jones, the Pennsylvania Supreme Court announced “that expert testimony should no longer be a per se requirement in proof of negligence in all cases of alleged medical malpractice.”  Id. at 472.

Res ipsa loquitur is Latin for “the thing speaks for itself.”  Essentially, it is a legal doctrine that allows plaintiffs to use circumstantial evidence to infer negligence, rather than having to rely on expert medical witness testimony.The doctrine “allows plaintiffs, without direct evidence of the elements of negligence, to present their case to the jury based on an inference of negligence.”  Toogood, 824 A.2d at 1146.  “The key to the doctrine is that a sufficient fund of common knowledge exists within a jury of laypersons to justify raising the inference.”  Id. That is, some situations so obviously involve negligence based on people’s general common knowledge and experience that it does not require the opinion testimony of an expert medical witness for jurors to know that someone was negligent. In Toogood, the Court noted that “the applicability of the doctrine depends, in the first instance, upon whether the damaging event ordinarily does not occur in the absence of negligence.”  Toogood, 824 A.2d at 1146.

The use of res ipsa loquiturto establish causation in a medical malpractice case may be invoked if three conditions exist:

  1. The event is of a kind which ordinarily does not occur in the absence of negligence;
  1. Other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
  1. The indicated negligence is within the scope of the defendant’s duty to the plaintiff.Quinby v. Plumbsteadville Family Practice, Inc., 907 A.2d 1061, 1071 (Pa. 2006).

The Quinby case provides an example of the application of the doctrine to a real life set of facts.  In Quinby, a quadriplegic tumbled from an operating table while left unattended, and the plaintiff claimed the victim suffered fatal injuries as a result of the fall.  The Pennsylvania Supreme Court held that res ipsa loquitur could be invoked by the plaintiff in the case.  Id. at 1070.  In applying the three-prong test for the applicability of the doctrine, the Court concluded that all three requirements were satisfied.  Id.  The Court found that the plaintiff “established that the fall is not the type of event that occurs in the absence of negligence, and that there is no explanation other than Defendants’ negligence for the fall.”  Id. at 1073.  It added that the third prong was clearly met since the defendants, as the victim’s surgical team, undeniably owed a duty towards the victim.  Id. at 1072.  Given the facts in the case, the jury could infer that the defendants were negligent based on the circumstantial evidence present in the case.

[1] The MCARE Act was signed into law on March 20, 2002.  It contains several provisions intended to reform the filing and prosecuting of medical malpractice lawsuits in the state.  In particular, it added and modified provisions on patient safety and reporting, medical professional liability informed consent, damages, limitation period for filing claims, expert qualifications, and a patient compensation fund.  The MCARE Act governs many issues regarding medical malpractice lawsuits filed against healthcare providers.  The MCARE Act is codified at Title 40 P.S., Chapter 5C.

The Act defines healthcare providers as primary healthcare centers, personal care homes, or a person, including a corporation, university, or other educational institution licensed or approved by the Commonwealth to provide healthcare or professional medical services as a physician, certified nurse midwife, podiatrist, hospital, nursing home, birth center, and an officer, employee, or agent of any of them acting in the course and scope of employment, but it does not include chiropractors, dentists, nurses, pharmacists, physical therapists, psychologists, veterinarians, or non-medical professionals.  40 P.S. §1303.503.  Those who are not included within the Act’s definition of a healthcare provider are “subject to liability under the law without regard to the provisions of” the Act.  40 P.S. §1303.104.

[2] Prima facie case simply means the establishment of a legally sufficient rebuttable case.  That is, the plaintiff met his or her initial burden of proof for a valid medical malpractice claim.

II. Filing Deadlines for Medical Malpractice Claims

Introduction to Statute of Limitations

Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case.  In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.

These strict filing deadlines are referred to as a statute of limitations.  “The purpose of any statute of limitations is to expedite litigation and thus discourage delay in the presentation of state claims which may greatly prejudice the defense of such claims.”  Ins. Co. of N. Am. v. Carnahan, 446 Pa. 48, 51 (1971).  Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard.  In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.

A statute of limitations can often be tolled or extended.  Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period.  For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time.  The deadline to carry out a specified action under a statute of limitations can also be extended.  For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.

Statute of Limitations for Medical Malpractice Claims in Pennsylvania

Medical malpractice actions in Pennsylvania are subject to a two-year statute of limitations.  42 Pa. CSA §5524(2).Pennsylvania law contains a separate statute that directs when the statute of limitations begins to run.  42 Pa. CSA §5502(a) states that the limitations period is computed “from the time the cause of action accrued….”  The Pennsylvania Supreme Court has stated that a “tort cause of action generally accrues on the date of the accident or injury.” Gibson v. Commonwealth, 490 Pa. 156,162 (1980). Medical malpractice claims are a form of tort action.  Toogood, 824 A.2d 1140.  Accordingly, the statute of limitations begins to run on the date of the negligent act, omission, or decision giving rise to the claimed injury. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84 (1983).

The Court noted that “lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations … even though a person may not discover his injury until it is too late to take advantage of the appropriate remedy….”  Id. at 84-85. “Once a cause of action has accrued and the prescribed statutory period has run, and injured party is barred from bringing his cause of action.”  Fine v. Checcio, 870 A.2d 850, 857 (Pa. 2005).  However, the Pocono Court added that when it is “established that an exception to the general rule applies” it tolls “the running of the statute.”  Pocono International Raceway, Inc., 503 Pa. at 85.

The Discovery Rule

Introduction

Every state has some version of the Discovery Rule.  In general, the Discovery Rule is an exception to the standard statute of limitations.  It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff.  Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision.  The rationale underlying the Discovery Rule is to prevent the statute of limitations barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.

The Discovery Rule in Pennsylvania

The Discovery Rule is a recognized exception to the statute of limitations for medical malpractice actions in Pennsylvania and thus operates to toll the running of the limitations period.Hayward v. Medical Center, 530 Pa. 320, 325 (1992).  According to the Pennsylvania Supreme Court:

The purpose of the discovery rule has been to exclude from the running of the statute of limitations that period of time during which a party who has not suffered an immediately ascertainable injury is reasonably unaware he has been injured, so that he has essentially the same rights as those who have suffered such an injury.  Fine, 870 A.2d at 858.

The Supreme Court created a two-part formula to determine when the statute of limitations begins to run when the Discovery Rule applies.  According to the formula, “the discovery rule prevents the statute of limitations from running against the plaintiff until the plaintiff knows or reasonably should know (1) that he or she has been injured, and (2) that this injury has been caused by another party’s conduct.”Levenson v. Souser, 384 Pa. Superior Ct. 132, 144 (1989).  It is not enough for the plaintiff to discover the injury for the limitations period to begin running; the plaintiff must also discover that the injury was caused by the fault of someone else.

The plaintiff has the burden of proof in establishing that the Discovery Rule applies to his or her claim.  Cochran v. GAF Corp., 542 Pa. 210, 216 (1995).  Whether the plaintiff “was able, in the exercise of reasonable diligence, to know of his injury and its cause” is a question of fact to be decided by the jury.  Fine, 870 A.2d at 858.  But whether the statute of limitations has run on a claim is a question of law for the trial court to determine.  Hayward, 530 Pa. at 325.

The Discovery Rule applies regardless of whether the two-year limitations period has run.  In 2005, the Pennsylvania Supreme Court stated:

we hold that it is not relevant to the discovery rules [sic] application whether or not the prescribed period has expired; the discovery rule applies to toll the statute of limitations in any case where a party neither knows nor reasonably should have known of his injury and its cause at the time his right to institute suit arises.  Fine, 870 A.2d at 859.

That means the injured party has two years to initiate an action regardless of whether he or she discovered the injury and cause thereof during the standard two-year limitations period or after it expired.  It must be noted that, in general, even in situations where the Discovery Rule applies an action must be filed within seven years from the date of the negligent act, omission, or decision.  This is due to the Statute of Repose (see Section III. Statute of Repose below).

Fraudulent Concealment

Fraudulent concealment is another exception to the statute of limitations under Pennsylvania medical malpractice law.  Schaffer v. Larzelere, 410 Pa. 402, 405 (1963).  “The doctrine is based on a theory of estoppel, and provides that the defendant may not invoke the statute of limitations, if through fraud or concealment, he causes the plaintiff to relax his vigilance or deviate from his right of inquiry into the facts.”  Fine, 870 A.2d at 860.  Fraudulent concealment does not require fraud in the strictest sense encompassing an intent to deceive, but rather, fraud in the broadest sense, which includes an unintentional deception. Deemer v. Weaver, 187 A. 215 (Pa. 1936).“The plaintiff has the burden of proving fraudulent concealment by clear, precise, and convincing evidence.”  Fine, 870 A.2d at 860.

When the statute of limitations is tolled by virtue of fraudulent concealment, the limitations period “begins to run when the injured party knows or reasonably should know of his injury and its cause.”  Id.

Again, it must be noted that, in general, even in situations where the doctrine of fraudulent concealment applies an action must be filed within seven years from the date of the negligent act, omission, or decision.  This is due to the Statute of Repose (see Section III. Statute of Repose below).

Minors

The statute of limitations for actions involving injury to a minor is suspended until the minor’s 18th birthday.  42 Pa. CSA §5533(b).  At that time, the standard two-year limitations period begins to run, and an action must be filed by the plaintiff’s 20th birthday.  The statute states:

If an individual entitled to bring a civil action is an unemancipated minor at the time the cause of action accrues, the period of minority shall not be deemed a portion of the time period within which the action must be commenced. Such person shall have the same time for commencing an action after attaining majority as is allowed to others by the provisions of this sub-chapter [42 Pa. CSA §5524(2)].

As the Pennsylvania Supreme Court explained, “the period within which a minor’s action must be commenced is measured not from the time the cause of action accrues, but from the time he or she turns eighteen.”  Fancsali v. University Health Center, 761 A.2d 1159, 1164 (Pa. 2000).

III. Statute of Repose—Absolute Bar to Recovery

Introduction

Statutes of repose are procedurally related to statutes of limitations.  Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed.  If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.

Although they can be thought of as being related, there are critical differences between them.  The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes.  A statute of limitations is generally triggered when the cause of action accrues, i.e., when all essential elements are present and a claim becomes legally actionable.

In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued.  In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury.  The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued.  Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.

Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists.  A statute of repose serves as an absolute bar to recovery.  Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations.  The statute of repose controls in that scenario.

While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose.  In fact, even many practicing lawyers do not fully appreciate the critical differences between the two.  This is likely due to the fact that statutes of repose are relatively rare.  Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.

Statute of Repose in Pennsylvania

The Pennsylvania Supreme Court acknowledged the distinction between statutes of limitations and statutes of repose in Vargo v. Koppers Co., Inc., 552 Pa. 371 (1998).  In Vargo, the Court stated that the distinguishing feature between them is that “statutes of repose potentially bar a plaintiff’s suit before the cause of action arises, whereas statutes of limitation limit the time in which a plaintiff may bring suit after the cause of action arises.”  Id. at 375.  Therefore, under Pennsylvania law, “statutes of repose begin to run at the time of the negligent act, while statutes of limitation do not begin to run until the cause of action accrues.”  Matharu v. Muir, 86 A.3d 250, 263 (Pa. Super. Ct. 2014).

A statute of repose governing medical malpractice claims was introduced by the MCARE Act in 2002.  It is codified at 40 P.S. §1303.513 and applies to causes of action arising on or after March 20, 2002, i.e., the effective date of the statute.

The statute of repose imposes a strict seven-year limitations period for commencing a medical malpractice action.  It states “no cause of action asserting a medical professional liability claim may be commenced after seven years from the date of the alleged tort….”  40 P.S. §1303.513(a).  Although the term ‘tort’ is not defined in the statute, courts have made it clear that for purposes of calculating when the seven-year period begins it “refers to the act underlying the liability claim, rather than the accrual of the cause of action itself.”  [emphasis in original] Matharu, 86 A.3d at 263.  That is also the result dictated by the Pennsylvania Supreme Court’s position articulated in Vargo.  Accordingly, the limitations period under the statute of repose begins to run from the date of the negligent act, omission, or decision.

As a statute of repose, it operates to extinguish some claims even before they have accrued.  It thus limits the application of the Discovery Rule.  Ordinarily, the Discovery Rule tolls the standard two-year statute of limitations until the injured party becomes aware of the alleged tort or reasonably should have become aware of it.  In theory, there is no maximum time by which the injured party must discover the injury and cause thereof and then timely commence an action.  However, due to the statute of repose, the Discovery Rule can only toll the statute of limitations for a maximum of seven years from the date of the negligence.  This result is mandated by the principles set forth by the Pennsylvania Supreme Court in Vargo.

The statute of repose contains exceptions for foreign objects and minors.  In cases where the injury is “caused by a foreign object unintentionally left in the individual’s body,” the seven-year limitations period does not apply.  40 P.S. §1303.513(b).  Also, lawsuits by or on behalf of a minor may be filed up to seven years from the date of the negligence or the injured minor attains the age of 20 years, whichever occurs later.  40 P.S. §1303.513(c).  Accordingly, for minors who have been victims of negligence prior to their 13th birthday, they have longer than the seven-year limitations period to file a lawsuit.

IV. Immunities and Limitations on Liability

Sovereign Immunity

Introduction

Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them.  The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong.  As a result, there could be no valid claim against a government entity.  The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state.  Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in Pennsylvania

Pennsylvania law contains two separate statutes in connection with the immunities of and actions against the government.  Claims against Pennsylvania (the Commonwealth), its agencies, political subdivisions, or any employee thereof acting within the scope of his or her employment (the term ‘Commonwealth party’ is used to described the foregoing collectively) implicate the doctrine of sovereign immunity and are governed by the Sovereign Immunity Act.  Whereas, claims against governmental units other than a Commonwealth party, i.e., local agencies and political subdivisions, implicate the doctrine of governmental immunity and are governed by the Political Subdivision Tort Claims Act.

Statutes that waive either sovereign or governmental immunity must be strictly construed.  The Pennsylvania Supreme Court reiterated this general principle of law in Jones v. SEPTA, 772 A.2d 435 (Pa. 2001).  The Jones Court stated: “Because the legislature’s intent in both the Sovereign Immunity and Tort Claims Act is to shield government from liability, except as provided for in the statutes themselves, we apply a rule of strict construction in interpreting these exceptions.”Id. at 440.

Under the Sovereign Immunity Act, the general rule holds that Commonwealth parties are immune from suit.  42 Pa. CSA §8521(a).However, the state has waived sovereign immunity with respect to the nine specific exceptions provided for in 42 Pa. CSA §8522(b) but only to the extent provided for therein.  42 Pa. CSA §8522(a).

42 Pa. CSA §8522(b)reads: “The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by….”Sovereign immunity has been waived with respect to “[a]cts of health care employees of Commonwealth agency medical facilities or institutions or by a Commonwealth party who is a doctor, dentist, nurse or related health care personnel.42 Pa. CSA §8522(b)(2).

Although sovereign immunity has been waived for certain specific situations, plaintiffs must comply with a strict presuit procedural requirement in order to proceed with a claim against a government defendant.  A plaintiff must file a written notice of intent to commence a civil action with the defendant governmental unit within six months from the date the injury was sustained or cause of action accrued.  42 Pa. CSA §5522(a)(1).  The notice must contain the information required in 42 Pa. CSA §5522(a)(1)(i) through (v).

If the required notice is not filed on a timely basis, any civil action against the government “shall be dismissed and the person to whom any such cause of action accrued for any injury … shall be forever barred from proceeding further thereon within this Commonwealth or elsewhere.”  42 Pa. CSA §5522(b)(2).  The court may excuse the failure to comply with the notice requirement on a timely basis “upon a showing of reasonable excuse….”  Id.

Even if a plaintiff is successful in suing a government defendant and winning a damage award, the amount recoverable against a government defendant is subject to statutory limitations.  42 Pa. CSA §8528(b) provides: “Damages arising from the same cause of action … shall not exceed $250,000 in favor of any plaintiff or $1,000,000 in the aggregate.”  Under the statute, only five types of damages are recoverable against a government defendant, which are (1) past and future loss of earnings and earning capacity, (2) pain and suffering, (3) medical and dental expenses, (4) loss of consortium, and (5) property losses.  42 Pa. CSA §8528(c).

Although sovereign immunity has been waived with respect to Commonwealth parties for medical malpractice claims, governmental immunity has not been waived for such claims.  In order to bring suit against a government defendant, its immunity must have been waived for the cause of action intended to be brought.  42 Pa. CSA §8542(b) lists the eight exceptions to government immunity, but medical malpractice claims are not one of the causes of action listed.  Accordingly, governmental immunity has not been waived for medical malpractice claims against local agencies and political subdivisions.

Good Samaritan Law

Introduction

The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency.  While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so.  It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).

In response, states have enacted Good Samaritan laws.  While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency.  Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation.  As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.

Good Samaritan Law in Pennsylvania

Pennsylvania has two general Good Samaritan laws that provide immunity from civil damages in certain specified emergency situations—one for non-medical Good Samaritans and one for medical personnel.  The non-medical Good Samaritan law is codified in 42 Pa. CSA §8332.  It provides:

Any person, including an emergency response provider[1], whether or not trained to practice medicine, who in good faith renders emergency care, treatment, first aid or rescue at the scene of an emergency event or crime or who moves the person receiving such care, first aid or rescue to a hospital or other place of medical care shall not be liable for any civil damages as a result of rendering such care, except in any act or omission intentionally designed to harm or any grossly negligent acts or omissions which result in harm to the person receiving emergency care or being moved to a hospital or other place of medical care.

Good Samaritans are immune from civil damages for rendering aid as long as it is not carried out with the intent to harm or gross negligence.  The statute does not define the term ‘gross negligence.’  In the context of a statute granting immunity from civil damages for healthcare treatment, the Pennsylvania Supreme Court adopted the following definition of gross negligence: “a form of negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity, or indifference.  The behavior of the defendant must be flagrant, grossly deviating from the ordinary standard of care.”  Albright v. Abington Memorial Hospital, 548 Pa. 268, 278 (1997).

The immunity provided under this statute does “not relieve a driver of a vehicle, including an ambulance or other emergency rescue vehicle, from liability arising from an operation or use of such vehicle” in connection with rendering emergency care.42 Pa. CSA §8332(c).

The medical Good Samaritan law is codified in 42 Pa. CSA §8331.  It provides:

Any physician or any other practitioner of the healing arts or any registered nurse, licensed by any state, who happens by chance upon the scene of an emergency or who arrives on the scene of an emergency by reason of serving on an emergency call panel or similar committee of a county medical society or who is called to the scene of an emergency by the police or other duly constituted officers of a government unit or who is present when an emergency occurs and who, in good faith, renders emergency care at the scene of the emergency, shall not be liable for any civil damages as a result of any acts or omissions by such physician or practitioner or registered nurse in rendering the emergency care, except any acts or omissions intentionally designed to harm or any grossly negligent acts or omissions which result in harm to the person receiving emergency care.

Again, covered healthcare practitioners are provided with immunity from civil damages for emergency treatment as long as it is rendered without intent to harm or constituting gross negligence.  The statute defines the term ‘good faith’ as including, but not limited to, “a reasonable opinion that the immediacy of the situation is such that the rendering of care should not be postponed until the patient is hospitalized.”  42 Pa. CSA §8331(b).

Additional Immunities and Limitations on Liability

There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, healthcare related entities, and specific scenarios scattered throughout the Pennsylvania Statutes.  The most common ones that medical malpractice plaintiffs are likely to encounter while pursuing their claim are contained primarily in 42 Pa. CSA, Part VII, Chapter 83, Subchapter C, which is titled ‘Immunities Generally.’Below is a non-exhaustive list of some common immunities and limitations associated with medical malpractice claims.

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[1] The statute defines the term ‘emergency response provider’ to include “Federal, State and local emergency public safety, law enforcement, emergency response, emergency medical services personnel, response teams, agencies and authorities, excluding hospital emergency facilities and related personnel.”  42 Pa. CSA §8332(d).

V. Required Elements of a Medical Malpractice Complaint

The content and format of medical malpractice complaints are governed byChapter 1000 of the Pennsylvania Rules of Civil Procedure along with Rule 204.1.

Under the Rules of Civil Procedure, a medical malpractice action is commenced by filing a complaint.  Rule 1007. A complaint is a type of pleading permitted in a civil action under Pennsylvania law.  Rule 1017.  It is a formal allegation by the plaintiff containing his or her claims for judgment by the court.

A medical malpractice complaint may only be brought “in a county in which the cause of action arose.”  Rule 1006(a.1).  If the claim is against more than one defendant, then the action may be brought in any county in which an action may be brought against any of the defendants under Rule 1007.  Rule 1006(c)(2).

The complaint must be filed with a completed official Civil Cover Sheet[1]Rule 205.5(a)(2).  The prothonotary (chief court clerk) is prohibited from accepting a complaint without a completed Civil Cover Sheet.  Rule 205.5(b).  The prothonotary is required to assist any plaintiff who is representing himself or herself with the completion of the Civil Cover Sheet.  Rule 205.5(c).  Any judicial district that has implemented an electronic filing system and has communicated to the public the filing procedures is exempt from the Civil Cover Sheet requirement.  Rule 205.5(d).

The complaint must contain a caption with the following information: (1) name of the court, (2) number of the action, (3) name of the pleading, (4) form of the action, and (5) names of all the parties.  Rule 1018.  Captions for medical malpractice complaints in particular must contain the designation “Civil Action—Medical Professional Liability Action.” Id.Additionally, if the complaint is filed in a judicial district that requires a Civil Cover Sheet, the same designation must be included on it.  Rule 1042.16.

The complaint must begin with a Notice to Defend in substantially the form set forth in Rule 1018.1(b).  Rule 1018.1(a).  The model Notice contained in Rule 1018.1(b) reads as follows:

You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you.

YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.

IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.

A medical malpractice complaint must contain the “material facts on which a cause of action … is based….”  Rule 1019(a).  It must do so “in a concise and summary form.”  Id. The complaint “shall identify each defendant against whom the plaintiff is asserting a professional liability claim.”  Rule 1042.2.  The complaint must specify the relief sought.  Rule 1021(a).  But for the types of damages generally sought in a medical malpractice claim, the complaint “shall not claim any specific sum.”  Rule 1021(b).  The complaint may state more than one cause of action against the same defendant.  Rule 1020(a).  In addition, causes of action “may be pleaded in the alternative.”  Rule 1020(c).

The complaint must be formatted as follows.  It “shall be divided into paragraphs numbered consecutively.  Each paragraph shall contain as far as practicable only one material allegation.”  Rule 1022.  Additionally, the complaint must conform with the technical requirements (such as paper size and color, etc.) set forth in Rule 204.1.

VI. Certificate of Merit

In any medical malpractice action in which it is alleged that a licensed healthcare provider deviated from the applicable standard of care, a Certificate of Merit must be filed with the complaint or within 60 days after the filing of the complaint.  Pa. RCP Rule 1042.3(a). Under its rule-making authority, the Pennsylvania Supreme Court adopted the Certificate of Merit requirement in January of 2003. Womer v. Hilliker, 908 A.2d 269, 275(Pa. 2006).  It did so in an effort to curb the filing of malpractice claims of questionable merit.  Id.  The Certificate of Merit represents an orderly mechanism that serves “to identify and weed non-meritorious malpractice claims from the judicial system efficiently and promptly.”  Id.According to the Supreme Court, the Certificate of Merit serves the following vital role in the judicial system:

On the one hand, the presence in the record of a COM signals to the parties and the trial court that the plaintiff is willing to attest to the basis of his malpractice claim; that he is in a position to support the allegations he has made in his professional liability action; and that resources will not be wasted if additional pleading and discovery take place…. On the other hand, the absence from the record of a COM signals to the parties and the trial court that none of this is so and that nothing further should transpire in the action, except for the lawsuit’s termination.  Id. at 275-276.

The Certificate of Merit must be signed by either the plaintiff’s attorney or the plaintiff, and it must certifyone of the following:

  1. an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; or
  1. the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard; or
  1. expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.

Basically, a Certificate of Merit serves as evidence that a qualified medical expert is of the opinion that the defendant deviated from the applicable standard of care, so it is extremely unlikely that it is a frivolous claim.

An appropriate licensed professional who signs the Certificate of Merit must meet the expert witness requirements set forth in 40 P.S. §1303.512.  (see Section VII below on Expert Medical Witnesses for a discussion on the topic.)  A separate Certificate of Merit must be filed for each defendant against whom a claim is asserted.  Pa. RCP Rule 1042.3(b)(1).  Upon a showing of good cause, the trial court “shall extend the time for filing a certificate of merit for a period not to exceed sixty days.”  Pa. RCP Rule 1042.3(c)(2).Pa. RCP Rule 1042.10 provides a model form for the Certificate of Merit and shows precisely what is required by statute, stating that it “shall be substantially in the following form.”Filing a Certificate of Merit is effectively the first step in proving a medical malpractice case.  Discovery is prohibited until the Certificate of Merit is filed.  Pa. RCP Rule 1042.5.

Pa. RCP Rule 1042.6(b)states that the prothonotary (chief court clerk)“shall enter a judgment of non pros [judgment for failing to properly prosecute case in accordance with the rules of the court] against the plaintiff for failure to file a certificate of merit within the required time….”The Pennsylvania Supreme Court added that the failure to file a Certificate of Merit or a motion for extension is grounds for dismissing the case unless the plaintiff demonstrates that his or her failure to comply is justified by a reasonable excuse.  Womer v. Hilliker, 908 A.2d 269, 279-280 (Pa. 2006).

[1] To view the official Civil Cover Sheet, click here.

VII. Expert Medical Witnesses

Introduction

The general rule under medical malpractice law holds that expert witnesses are nearly always required.  The medical issues and related facts are generally far too complex for non-medical professionals to understand without the aid of expert medical witnesses.  As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization.  Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.

The general rule applies under Pennsylvania’s medical malpractice law.  The Pennsylvania Supreme Court has stated that, with very limited exceptions[1], a plaintiff must provide expert medical witness testimony that the defendant healthcare provider deviated from the applicable standard of care and that the deviation was the proximate cause of the plaintiff’s injury.  Mitzelfelt v. Kamrin, 584 A.2d 888, 892 (Pa. 1990).

Who Qualifies as An Expert Medical Witness

The standards for qualifying as an expert medical witness permitted to provide opinion testimony are set forth in 40 P.S. §1303.512.  Qualifying as an expert witness is a multi-step analysis that is linked to the subject matter upon which the prospective expert is seeking to provide opinion testimony, i.e., general medical matters, applicable standard of care, causation, or extent of injuries, as well as the qualifications of the defendant against whom the expert testimony will be offered.

The general rule provided in the statute states: “No person shall be competent to offer an expert medical opinion in a medical professional liability action against a physician unless that person possesses sufficient education, training, knowledge and experience to provide credible, competent testimony and fulfills the additional qualifications set forth in this section as applicable.”40 P.S. §1303.512(a).

In order to provide expert testimony on a “medical matter, including standard of care, risks and alternatives, causation and the nature and extent of the injury,” the prospective expert must meet the following qualifications:

  1. Possess an unrestricted physician’s license to practice medicine in any state or the District of Columbia; and
  1. Be engaged in or retired within the previous five years from active clinical practice or teaching. 40 P.S. §1303.512(b).

According to the Pennsylvania Supreme Court, the statute’s reference to an expert “possessing an unrestricted physician’s license to practice medicine” unambiguously refers to a medical doctor or osteopath licensed by a state board appropriate to such practices.  Wexler v. Hecht, 928 A.2d 973, 982 (Pa. 2007).  Thus, the Court concluded that a doctor licensed to practice podiatric medicine does not meet the requirement of 40 P.S. §1303.512(b)(1) and did not qualify as an expert witness permitted to offer opinion testimony against the defendant.  Id.

In addition, if an expert witness is seeking to testify as to the applicable standard of care, the prospective expert must meet the following qualifications:

  1. Be substantially familiar with the applicable standard of care for the specific care at issue as of the time of the alleged breach of the standard of care;
  1. Practice in the same sub-specialty as the defendant physician or in a sub-specialty which has a substantially similar standard of care for the specific care at issue; and
  1. In the event the defendant physician is certified by an approved board, be board certified by the same or similar approved board. 40 P.S. §1303.512(c).

A court may waive the same sub-specialty requirement for an expert testifying on the standard of care for the diagnosis or treatment of a condition if the court determines that:

  1. The expert is trained in the diagnosis or treatment of the condition; and
  1. The defendant physician provided care for that condition and such care was not within the physician’s specialty or competence. 40 P.S. §1303.512(d).

This waiver applies to situations where the defendant physician is a specialist, but the medical treatment at issue in the case is outside the defendant’s area of specialty, which obviates the need for the prospective expert medical witness to be an expert in the defendant’s area of specialization.  Instead, the expert witness needs to be an expert in the specific medical treatment at issue.

In addition,40 P.S. §1303.512(e) authorizes another waiver as follows:

A court may waive the same specialty and board certification requirements for an expert testifying as to a standard of care if the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in or full-time teaching of medicine in the applicable sub-specialty or a related field of medicine within the previous five-year time period.

The Pennsylvania Supreme Court interpreted the term ‘related field of medicine’ as follows:

we further explicitly hold that the “relatedness” of one field of medicine to another for purposes of subsection 512(e) cannot be established in a broad and general sense that will henceforth be applicable to all situations and all claims. Rather, the “relatedness” of one field of medicine to another, under subsection 512(e), can only be assessed with regard to the specific care at issue. Two fields of medicine may be “related” with respect to certain specific issues of care, but unrelated with respect to other specific issues of care. Vicari v. Spiegel, 989 A.2d 1277, 1284 (Pa. 2010).

In Vicari, the prospective expert witness, Dr. Blum, was board certified in internal medicine with a sub-specialty in medical oncology by the American Board of Internal Medicine.  His testimony was being offered against one defendant who was board certified in otolaryngology by the American Board of Otolaryngology and another defendant who was board certified in radiation oncology by the American Board of Radiology.  At a glance, the Court acknowledged that “these fields of medicine would not appear to be ‘related.’”  Id.  However, with respect to the specific care at issue in the case, “these fields surely were ‘related’ for purposes of subsection 512(e) in this case.”  Id.

The Court noted that reaching the conclusion that Dr. Blum was actively involved in a related field of medicine to the defendants’ fields did not end the subsection 512(e) analysis for expert witness qualification.  Now the inquiry focused on whether he had “sufficient training, experience, and knowledge to testify as to the specific standard of care at issue.”  Id. at 1285.  The Court detailed his experience, which included 30 years of clinical practice as a medical oncologist, serving on several cancer tumor boards, and conducting clinical trials to test new drugs and treatments.  Accordingly, the Court concluded that “he unquestionably meets” the statutory standard and was thus qualified to provide expert medical witness opinion testimony against the defendants.  Id.

Admissibility of Expert Testimony About Scientific Principles and Discoveries

Introduction

Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries.  Simply put, courts must guard against allowing so-called junk science into evidence.  To achieve that objective, most states[2] follow one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.

Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.”  Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle.  The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case.  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Admissibility of Scientific Principles and Discoveries in Pennsylvania

The starting point for admissibility analysis of expert opinion testimony regarding scientific principles and discoveries is Pennsylvania Rule of Evidence 702, which states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

  • the expert’s scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;
  • the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and
  • the expert’s methodology is generally accepted in the relevant field.

The official comments to Rule 702 make three important points very clear.  First, Pennsylvania uses the Frye standard and has expressly rejected adoption of the Daubert standard.  The Frye standard was first adopted by the Pennsylvania Supreme Court in the 1977 case Commonwealth v. Topa, 471 Pa. 223, 231-232 (1977).  In Topa, the Court observed that “[s]trict application of the Frye standard when scientific proof is offered is essential if the defendant is to receive a just and fair trial.”Id. at 232.

Second, Rule 702 does not change the rule for qualifying a witness to testify as an expert articulated by the Pennsylvania Supreme Court in Miller v. Brass Rail Tavern, Inc., 541 Pa. 474 (1995).  The Miller Court held that the rule is as follows:

The test to be applied when qualifying a witness to testify as an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine.Id. at 480-481.

Finally, Rule 702 does not change the requirement that an expert’s opinion must be expressed with reasonable certainty as previously mandated by the Pennsylvania Supreme Court in McMahon v. Young, 442 Pa. 484 (1971).  In McMahon, the Court stated that the expert “has to testify, not that the condition of claimant might have, or even probably did, come from the accident, but that in his professional opinion the result in question came from the cause alleged.”  Id. at 486.  It went on to instruct that “[a] less direct express of opinion falls below the required standard of proof and does not constitute legally competent evidence.”  Id.

The expert in McMahon used the following three phrases: (1) “[the automobile accident] is consistent with that sort of injury,” (2) “there is probably a cause and effect relationship,” and (3) “my opinion is there is an arthritis which is consistent with traumatic arthritis.”  Id. at 485.  According to the Court, the expert’s “testimony was not made with sufficient certainty,” so “it was not legally competent evidence….”  Id. at 486.

Courts stress the point that the Frye standard is an exclusionary rule of evidence, so it must be construed narrowly in order to guard against barring evidence that will aid the trier of fact in making its decision.  Trach v. Fellin, 817 A.2d 1102, 1103 (Pa. Super. Ct. 2003).  Furthermore, application of the Frye standard in determining the admissibility of expert witness testimony applies only to “novel scientific evidence.”  Commonwealth v. Blasioli, 713 A.2d 1117, 1119(Pa. 1998).  “Thus, Frye does not apply every time science enters the courtroom.”  Trach, A.2d at 1109.

[1] Under the doctrine of res ipsa loquitur, an expert witness is not required to provide testimony establishing causation because the fact that negligence occurred leading to the injury is so obvious that the jury can reach that conclusion based on their common knowledge and experience.  One classic example is when a dentist extracts the wrong tooth.  (see Section I for full discussion on res ipsa loquitur)

[2]In fact, only Nevada, North Dakota, and Virginia do not follow either the Frye or Daubert standard.  For a state-by-state comparison, see https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/.

VIII. Comparative Negligence

Modified Comparative Negligence with 51% Bar Rule

Pennsylvania follows the doctrine of modified comparative negligence with a 51% bar rule.42 Pa. CSA §7102(a) provides that for “all actions to recover damages for negligence resulting in death or injury … the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery … where such negligence was not greater than the causal negligence of the defendant or defendants….”Thus, under Pennsylvania law, the plaintiff’s own negligence in causing or contributing to his or her injuries is not a bar to recovery unless the plaintiff’s assigned percentage of fault is 51% or greater.

Modified comparative negligence is a fault and damages allocation system.  Under this system, fault is determined and apportioned among the parties involved (plaintiff and all defendants), and how much compensation the plaintiff can recover is limited by his or her relative share of fault for causing the injury.  As a result, the plaintiff’s recovery is limited by his or her assigned percentage of fault.  42 Pa. CSA §7102(a)states that “any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.”

The 51% bar rule means that if the plaintiff’s allocated percentage of fault is 51% or greater he or she is completely barred from recovering any damages. For example, assume a plaintiff is determined to be 50% at fault, and the damage award is $100,000.  The amount to which the plaintiff is entitled is $50,000 because the plaintiff’s allocated percentage share of fault, i.e., 50% or $50,000, is deducted from the damage award.  If the plaintiff were determined to be 51% at fault, he or she would not be entitled to any recovery because Pennsylvania imposes the 51% bar rule.

Apportionment of Fault with Multiple Defendants

When multiple defendants are involved, there are two different ways in which the degree of fault comparison can be applied. Each approach can lead to vastly different results. The individual comparison approach compares the plaintiff’s proportion of fault against each defendant individually, and the plaintiff may recover damages against only the defendants whose individual proportion of fault is greater than the plaintiff’s. For example, in a scenario where the plaintiff is deemed to be 40% at fault and two defendants are each apportioned 30% of the fault, the plaintiff is barred from any recovery. Under the individual comparison approach, the plaintiff’s share of fault for the injury is greater than either defendant individually.

On the other hand, the combined comparison approach permits the plaintiff to recover as long as his or her apportioned share of negligence is equal to or less than the combined negligence of all the defendants against whom recovery is sought. In the above example, the plaintiff would be entitled to recover damages from both defendants since his or her apportioned share of negligence is less than the combined share of the two defendants. Clearly, there is a stark contrast in the results of the two approaches with plaintiffs obviously favoring the combined comparison approach.

It had been an open question as to which approach applied in Pennsylvania.  In 1986, the Pennsylvania Supreme Court answered the question in favor of combined comparison, holding that “recovery by an injured plaintiff will be precluded only where plaintiff’s negligence exceeds the combined negligence of all defendants.”  Elder v. Orluck, 511 Pa. 402, 417 (1986).  Leaving absolutely no doubt as to its position on the issue, the Court added, “each such defendant is liable for the plaintiff’s damages in proportion to his degree of negligence even if the portion of negligence attributable to a particular defendant is less than the negligence of the plaintiff.”  Id.

IX. Limitation on Damages

Economic and Non-economic Damages

Pennsylvania law does not impose any limitations on economic (medical bills, lost wages, etc.) or non-economic (pain and suffering, emotional distress, etc.) damages awarded in medical malpractice cases against private defendants.  In fact, Pennsylvania’s Constitution prohibits the state’s General Assembly from enacting any law limiting damages for personal injury or death.  Constitution of Pennsylvania, Article III, §18.  It reads, in pertinent part, as follows: “the General Assembly” shall not “limit the amount to be recovered for injuries resulting in death, or for injuries to persons….”

Punitive Damages

Willful, Wanton, or Reckless Indifference

Under Pennsylvania law, punitive damages are permitted in medical malpractice cases.  40 P.S. §1303.505(a).  “In Pennsylvania, the function of punitive damages is to deter … and punish … egregious behavior.”Martin v. Johns-Manville Corp., 508 Pa. 154, 169 (1985). They may be awarded “for conduct that is the result of the health care provider’s willful or wanton conduct or reckless indifference to the rights of others.”  Id.The Pennsylvania Supreme Court defined the terms ‘willful’ and ‘wanton’ in Evans v. Philadelphia Transportation Company, 418 Pa. 567 (1965).

The Supreme Court described willful conduct to mean “that the actor desired to bring about the result that followed, or at least that he was aware that it was substantially certain to ensue.  This, or course, would necessarily entail actual prior knowledge of [another’s] peril.”  Id. at 443.  Other courts have taken this definition to mean that willful conduct is synonymous with the term ‘intentional.’  King v. Breach, 540, A.2d 976, 981 (Pa. Cmwlth. 1988).

The Evans Court distinguished wanton from willful by stating:

Wanton misconduct, on the other hand, means that the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.  It usually is accompanied by a conscious indifference to the consequences….  Evans, 418 Pa. at 574.

The Supreme Court defined reckless indifference as “where the ‘actor knows, or has reason to know, … of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk….’”  Martin, 508 Pa. at 171 (quoting Restatement of Torts [Second], Comment a to Section 500).

Under Pennsylvania law, the defendant’s state of mind is a critical factor in determining whether punitive damages are appropriate in a medical malpractice case.  According to the Pennsylvania Supreme Court, when “assessing the propriety of the imposition of punitive damages, the state of mind of the actor is vital.”  Hutchinson v. Luddy, 870 A.2d 766, 770 (Pa. 2005).  Inherent in each case where the imposition of punitive damages has been deemed appropriate is the defendant’s subjective willingness to inflict injury.  Thus, “a punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk.”  Id. at 772.

Statutory Limitations

Punitive damages are subject to statutory limits in Pennsylvania medical malpractice cases.  40 P.S. §1303.505(d) provides that “punitive damages against an individual physician shall not exceed 200% of the compensatory damages awarded.”  Compensatory damages include both economic and non-economic damages.  In addition to a limit on punitive damages awarded, the statute also provides a minimum amount, stating punitive damages “when awarded, shall not be less than $100,000 unless a lower verdict amount is returned by the trier of fact.”Id.Additionally, when punitive damages are awarded in a medical malpractice case, the plaintiff’s actual share received is limited by statute.  40 P.S. §1303.505(e)mandates that 25% of the punitive damages award shall be paid to the MCARE Fund (see discussion immediately below) with the remaining 75% paid to the plaintiff.

X. Patient Compensation Fund: MCARE Fund

A patient compensation fund is a state administered fund established and maintained for the purpose of compensating patients and/or their families for medical errors or omissions that occurred in the course of their treatment with a healthcare provider or entity that participates in the fund.  A patient compensation fund functions largely like standard, commercial professional liability insurance in that the group of insureds all contribute a surcharge to the fund, which in turn makes payouts to patients with valid claims.  The fund typically works in conjunction with healthcare providers’ primary professional liability insurance policy.

In 2002, the Medical Care Availability Reduction Error Fund was created as part of the MCARE Act.  The purpose of the Fund is to ensure reasonable compensation for victims of medical malpractice.  “Money in the fund shall be used to pay claims against participating health care providers for losses or damages in medical professional liability actions against them in excess of the basic insurance coverage required by section 711(d)….”  40 P.S. §1303.712(a).  That is, the MCARE Fund will pay damages that are in excess of the healthcare providers’ basic policy limitsup to a specified statutory amount.  The basic coverage amounts required by 40 P.S. §1303.711(d) are:

  1. $500,000 per occurrence or claim and $1,500,000 per annual aggregate for participating healthcare provider that is not a hospital.
  1. $500,000 per occurrence or claim and $2,500,000 per annual aggregate for a hospital.

The MCARE Fund is administered by the Pennsylvania Insurance Department.Note that certain provisions within various sections governing the MCARE Fund are contingent or adjustable upon the occurrence of specified events (e.g., basic insurance coverage amounts for 2006 and later as per 40 P.S. §1303.711(d)(4))[1].  For 2017, the total required amounts of professional liability coverage, including MCARE Fund and primary coverage, for healthcare providers, excluding hospitals, are $1,000,000 per occurrence and $3,000,000 per annual aggregate[2].  For hospitals, the required amounts are $1,000,000 per occurrence and $4,000,000 per annual aggregate[3].

Other than the reassurance of knowing that the MCARE Fund exists and helps pay damage amounts in excess of healthcare providers’ primary insurance policy limits, plaintiffs do not really need to trouble themselves with learning much more about the Fund.  Defendants’ insurers are responsible for making claims against the Fund, not plaintiffs.  40 P.S. §1303.714(a).

XI. Apologies and Gestures of Sympathy

The Pennsylvania Benevolent Gesture Act was signed into law on October 25, 2013.  It is designed to allow healthcare providers to speak openly with patients and their families about undesirable outcomes without fear that expressions of compassion, apology, or sentiments of a similar nature will be used against them in potential lawsuits.

The Act shields healthcare providers who communicate benevolent gestures by making such gestures inadmissible as evidence of liability in any legal claim against them.  35 P.S. §10228.3(b)(1).  The term ‘benevolent gesture’ is defined as follows: “Any action, conduct, statement or gesture that conveys a sense of apology, condolence, explanation, compassion or commiseration emanating from humane impulses.”  35 P.S. §10228.2.

There are a couple of important requirements that must be observed in order for the protection afforded by the Act to apply.  The benevolent gesture must be “made prior to the commencement of a medical professional liability action, administrative action, medication or arbitration.”  35 P.S. §10228.3(a).  That is, the gesture must be expressed prior to the commencement of any legal action.

In addition, any admission of negligence or fault is not protected by the Act, i.e., such admissions are admissible into evidence.  35 P.S. §10228.3(b)(2).  The subsection provides that the protections provided by the Act “shall not apply to a communication, including an excited utterance, which also includes a statement or statements of negligence or fault pertaining to an accident or event.”  The Pennsylvania Supreme Court defined the term ‘excited utterance’ as:

a spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person has just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties.

Allen v. Mack, 345 Pa. 407, 410 (1942).

[1] Accordingly, to see the current (as of the date of this article) requirements that are subject to adjustment, see Pennsylvania Insurance Department. (2017). Mcare Assessment Manual: 2017.  Harrisburg, PA.

Available at: http://www.insurance.pa.gov/Mcare%20Documents/2017%20Assessment%20Manual.pdf

[2]Id. at 3.

[3]Id.