Medical Malpractice FAQ

What is medical malpractice?

Medical malpractice occurs when a practitioner, organization or entity commits a negligent act or omission that causes an injury to a patient.

What type of behavior or misconduct is considered medical malpractice?

Medical malpractice comes in many forms. A few possible examples of medical negligence are (but not limited to):

• An incorrect diagnosis or failure to diagnose
• Disregarding or not acting according to a patient's history
• Improper medication or dosage
• Surgery on the wrong part of the body
• Not appropriately following procedures
• Poor after aftercare or follow ups
• Premature discharge
• Not responding to or misreading laboratory results
• Unnecessary surgery
• A foreign object left in the body

Who can be held liable in a medical malpractice claim?

Philadelphia statutes claim that a victim of malpractice can sue any person listed under the definition of a health care provider. A health care provider is any practitioner who is licensed to legally practice in their specialized field of medicine in the state of Pennsylvania. This includes physicians, dentists, pharmacists, physician technicians, athletic trainers, obstetricians, dietitians, midwives, psychologists, chiropractors, nurses etc.

Also, many people have been known to also sue the organization where the practitioner is employed. Of course, that means hospitals and medical facilities could be potential defendants.

How long do I have to file a medical malpractice claim?

Every state has implemented laws regulating the amount of time a victim of medical malpractice can file a claim for their injury; this is called the statute of limitations. In the state of Pennsylvania, the time allotted to file a claim is comparatively short, giving those who wish to file a claim only two years from the day the malpractice occurred. However, there are circumstances that may modify the two-year countdown, such as the claimant being a minor or the application of the discovery rule.

What can I receive compensation for in a medical malpractice case?

Those who file a claim in order to be compensated for the occurrence of medical malpractice usually do so in hopes of recovering damages. Damages are losses that a person has endured after being inflicted with an unwarranted injury. If the jury or judge decides that a claimant has a viable case, they may receive economic, economic and/or punitive damages as an award. A short description of the types of damages are described below:

Economic damages are often monetary and are testable in a court of law. A couple examples of possible economic damages in a medical malpractice case are:

• Medical expenses
• Time spent away from work
• Funeral costs
• Damaged personal property
• Lost wages and earnings

Non-economic damages refer to losses that are intangible. In order to recover these damages, plaintiff's are required to testify to convince the jury or judge that they've suffered emotional or psychological inflictions stemming from their injury. A few examples of possible non-economic damages in a medical malpractice case are:

• Pain and suffering
• Emotional distress
• Loss of consortium
• Loss of companionship
• Disfigurement
• Trauma

Punitive damages are awarded in cases when the defendant acted in ways that are deemed malicious and reckless. They aren't awarded to recover anything, they are permitted by the court to punish the defendant and discourage similar situations from transpiring again. Winning punitive damages consists of presenting coherent evidence displaying that the defendant intentionally caused harm to the plaintiff.

Are there limits to the amount of compensation I can recover for damages?

Each state has the capability of implementing legislation that limits the amount of monetary compensation victims are eligible to receive following a case. Some state legislators choose to enforce these limits, while others believe that damages should be limitless. Fortunately, the state of Pennsylvania has not imposed “damage caps” in medical malpractice cases, which means that a person who is harmed or killed as a result of medical negligence is allowed to recover whatever compensation the judge or jury sees fit. However, there are exceptions in the case of punitive damages and lawsuits against Commonwealth parties.

If a victim were to win punitive damages in a claim, there wouldn't be a cap per say, but they would be permitted to give 25% of the award to Pennsylvania's MCARE fund (Medical care Availability and reduction of Error). This public state program provides funds to pay claims against medical professionals or organizations in liability actions.

Damages earned in lawsuits filed against Commonwealth parties can not exceed $250,000.

How do I know I have a feasible medical malpractice case?

Medical malpractice is constituted when a claim obtains all of the following characteristics:

There was a violation of the “standard of care”

The law addresses medical standards in every field of medicine that must be upheld if practitioners are to be deemed competent. If a victim can prove that a health care provider in a similar circumstance would not have committed the act of medical negligence their provider did, they can prove that there was a violation of the standard of care.

The injury was directly caused by the negligent act or omission

In order for a medical malpractice claim to be considered viable, it must be proven that the injury would not have been inflicted if the negligent act or omission was not committed. An unfavorable outcome that does not lead to an injury is not malpractice.

The injury led to damages

A claimant pursuing a case must prove that the injury resulted in damages. Since medical malpractice suits are costly to litigate, pursuing compensation for significant damages would increase a victim's chances of fully recovering them.

Will I have to go to court?

You may not have to. If there is an establishment of clear evidence that points to the liability of a health care provider presented in the pre-trial phases of litigation, the defendant may choose to offer a victim a settlement. When both parties in a case agree to a settlement, this means the defendant agrees to most of the plaintiff's claims and opts to pay them a monetary amount of money.

Statistics reveal that over 90% of medical malpractices are settled out of court. Practitioners and organizations would rather settle than initiate an actual trial to avoid paying additional court fees. In Philadelphia where statistics are kept on trial results roughly 50% of cases result in a defense verdict which essentially implies that one has a 50/50 chance of winning at trial should the matter proceed to verdict. However, if both the plaintiff, defendant and their prospective attorneys cannot agree on a settlement, a trial would be the next step.