Under Pennsylvania law, a physician must have and use the same knowledge and skill, and exercise the same care as that which is usually had and exercised in the medical profession. When a physician fails to meet this professional standard he or she is considered “negligent.” A physician or other health care provider is “negligent” in Pennsylvania when their care of a patient is careless or unskilled in its performance. It is also negligence when a physician or health care provider fails to keep him or herself informed of the contemporary developments in the medical profession.
In Pennsylvania, medical malpractice actions are for injury to the person or wrongful death {hyperlink}, which must be brought in two years. The statute, however, does not begin to run until the injury party discovers or reasonably should have discovered that he or she has been injured by another’s conduct. This is called the discovery rule, which does not apply in wrongful death cases. The two-year discovery rule does not apply to minors, who have two years from their 18th birthday to file a medical malpractice claim. For medical malpractice cases arises on or after March 20, 2002, the discovery rule is limited by a seven-year statute of repose that runs from the date of the act (two years for death cases). However, this does not apply to foreign objects unintentionally left in the body, nor does it require a minor to comment an action prior to age twenty.
Within 60 days of filing the Complaint, a medical malpractice plaintiff must file a certificate of merit, signed by qualified expert, and with an accompanying report that there exists reasonably probability that the Defendant’s care fell below the standard of care and was a cause of injury the plaintiff.
Unless a medical malpractice error is so simple, and the lack of skill or want of care is patently obvious as to be with in the experience and comprehension of even nonprofessional persons, a plaintiff must provided expert testimony the defendants deviated from the standard of care, and that such a deviation was a cause of the plaintiff’s injury or injuries. Experts, however, must be “competent” to testify. “Competent” in Pennsylvania means that the expert must: (1) be actively engaged in clinical practice or teaching; (2) practice in the same or similar specialty as the defendant, or be board-certified in the same specialty as the defendant.
The Stent Lawyers at the Law Offices of Wais & Vogelstein have access to a host of board-certified interventional cardiologists across the country who are ready to review your potential stent case.
Pennsylvania has a modified doctrine of comparative negligence. Under that doctrine, a medical malpractice plaintiff cannot receive compensation if their own negligence is deemed by the jury to be greater than the negligence of the defendant or defendants. However, if a medical malpractice plaintiff contributes to the negligence that resulted in injury, and that negligence is deemed by the jury to be less than negligence of the defendant or defendants, then the amount of damages the plaintiff can received is lowered by the percentage of their own fault.
A physician must obtain a patient’s informed consent in order to perform health care services upon the patient. Generally, there are two parts to informed consent. First, the physician must disclose to his or her patient those facts which a reasonable person in the situation would consider in determining whether to undergo treatment. Second, the patient must be informed of all of the material risks from which the patient can make an intelligent choice as to the course of treatment.
Pennsylvania does not have a cap on compensatory damages. However, there is a state-sponsored program providing excess insurance coverage (i.e., the Patient Compensation Funds and Physician Insurance).
Compensatory damages may include past and future medical expenses, past and future lost wages, incidental costs, as well as physical pain, mental anguish, discomfort, inconvenience, disfigurement and distress.
Victims of unnecessary stent {hyperlink} placement may be entitled to be compensated for any or all of the above injuries, as well as an award of punitive damages {hyperlink}.
Punitive damages can be awarded in Pennsylvania medical malpractice cases if a jury determines that the defendant’s conduct was outrageous. Punitive damages are used to punish the defendant for his or her conduct and deter the defendant and others from the commission of like acts. A person’s conduct is outrageous when he or she acts with a bad motive or when he acts with reckless indifference to the interests of others. Punitive damages against a physician cannot exceed 200 percent of the compensatory damages awarded, absent intentional misconduct.
Under Pennsylvania law, a medical malpractice plaintiff is entitled to recover the full amount of his/her damages regardless of whether private or public insurance has paid for portions of the plaintiff’s damages (i.e., medical expenses).
Joint torteasors in Pennsylvania are jointly and severally liable. This means that each defendant is responsible for the full amount of any judgment. Defendant health care providers, however, may seek contribution from one another if multiple defendants are found jointly and severally liable. This means that a joint tortfeasor who pays more than his pro rate share has a right of contribution against other joint tortfeasors whose liability was extinguished by a judgment or settlement and who have not paid their pro rata share.
Vicarious liability is governed by statute in Pennsylvania. A hospital is liable under the principle of ostensible agency for the acts of a physician on its staff who is not an employee only if (a) a reasonably prudent person would be justified in the belief that his care was being rendered by the hospital or its agents, or (b) the care was advertised or otherwise represented to the patient as care being rendered by the hospital or its agents.
If an individual dies as a result of medical malpractice {hyperlink} a cause of action for wrongful death may arise. In Pennsylvania, the plaintiff, as the administrator of the estate of the decedent, claims damages under both the Wrongful Death Act and the Survival Act. He or she is entitled to make a claim under both acts, but the damages cannot be duplicative. Such damages include medical expenses, loss of contribution from the decedent, loss of monetary support from the decedent, the pecuniary value of the services, society and comfort the decedent would have given to the family, lost wages, mental anguish and pain and suffering.
These caps have been deemed unconstitutional in Pennsylvania medical malpractice cases.
Mental anguish and emotional distress is a potential component of compensatory damages {hyperlink} suffered as a result of medical malpractice {hyperlink}. Under Pennsylvania law, the terms mental anguish and emotional distress embrace such states as fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal. Victims of unnecessary stent {hyperlink} placement often suffer many of these conditions after learning that an unnecessary piece of medical equipment has been placed in their heart.
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