We rely on doctors to diagnose, treat, and cure our illnesses and diseases, and treat our injuries. Not only do we depend on them, but we trust them with our health, well-being, and our lives. Doctors are humans and humans are fallible; they make mistakes. Yet, medical errors have consequences, some of which can be life-threatening. Additionally, situations exist where a mere mistake crosses the line into something much more serious: malpractice.
Medical malpractice includes a wide range of actions or failures that lead to harm in a patient. Sometimes malpractice refers to egregious never events like wrong-site surgeries or medication errors. Other malpractice injuries occur from seemingly harmless mistakes such as the failure to take a person’s complete medical history into account before diagnosis or treatment.
If you have suffered injuries or haven’t received the treatment you need promptly as a result of medical malpractice, you may seek compensation for damages by filing a medical malpractice lawsuit against the doctor who harmed you. The same is true if you have tragically lost a loved one as a result of medical malpractice. It’s in your best interest to contact an experienced medical malpractice lawyer as soon as possible. Your attorney can get the lawsuit process started, advise you on your next steps, and navigate the complexities of procedural requirements associated with taking legal action against your doctor.
Until you have the opportunity to consult with an experienced medical malpractice lawyer, this guide provides an in-depth look at how to sue a doctor for medical malpractice, including information about what constitutes medical malpractice, procedural requirements for a medical malpractice lawsuit in Pennsylvania, proving your medical malpractice claim, and the types and amount of damages you could receive if you prevail in your case.
What Qualifies as Medical Malpractice?
Pennsylvania law does not specifically define medical malpractice, but instead addresses all licensed professionals. The state’s civil code a broader approach and refers to professional liability actions. A person who has suffered harm or injuries as a result of a professional deviating from their profession’s standard of care has the right to seek compensation for damages. Professionals include various people in medical and non-medical roles, including your doctor.
In the legal community, an accepted definition of medical malpractice is any act or failure to act during a patient’s diagnosis, treatment, or care that strays from accepted standards within medicine and causes harm or death to a patient.
Your medical malpractice claim is likely related to one of the following examples of actions or failures that typically fall under the umbrella of medical malpractice:
- Your doctor failed to recognize symptoms or diagnose an illness or disease.
- Your doctor misdiagnosed your condition or disease.
- Your doctor incorrectly treated your illness or injury.
- Your doctor failed to obtain your complete medical history.
- Your doctor failed to order needed tests for proper diagnoses such as urine tests, blood tests, scans, and x-rays.
- Your doctor botched surgery or made other surgical errors such as leaving a foreign object in your body.
- Your doctor performed the wrong procedure on you or performed the right procedure on the wrong part of your body (e.g. removed wrong kidney or breast).
- Your doctor discharged you from the emergency room or hospital too soon.
- Your doctor did not provide the appropriate follow-up or aftercare.
- Your doctor prescribed the wrong amount of a medication or the wrong medication.
- Your doctor administered the wrong medication to you or did not give you the medication you need.
- Your doctor fraudulently covered up a mistake or misrepresented himself or herself in a way that caused you harm.
Before you can sue a doctor, you need to ensure you have a viable malpractice claim. The above examples are a good place to start, but the list is not exhaustive. Ultimately, if your doctor has harmed you or allegedly caused the death of a loved one, speaking to a medical malpractice attorney is the quickest way to learn if your claim makes sense.
Statute of Limitations in Pennsylvania Medical Malpractice Claims
To sue your doctor for malpractice you must comply with statutes of limitations. A statute of limitations is a law that sets a time limit for bringing charges or civil action against an individual or entity. In the context of medical malpractice, the statute of limitations refers to the length of time you have to bring a lawsuit against your doctor.
Pennsylvania law gives medical malpractice victims two years to take action against the doctor whose actions or failures harmed them. Medical malpractice wrongful death claims on behalf of eligible family survivors also have a two-year statute of limitations. Medical malpractice claims differ from other personal injury claims, like those involving traffic accidents, because the law provides for exceptions that toll, or pause, the statute of limitations’ time clock. Additionally, Pennsylvania medical malpractice claims also have a statute of repose.
Delayed Discovery in Pennsylvania Medical Malpractice Cases
When someone suffers injuries in a car accident, it’s easy to pin down the exact date of injury where the statute of limitations began. The same is not true in many medical malpractice claims. Doctors make decisions throughout diagnosis, treatment, and aftercare that can lead to injury or harm. Yet, patients do not always immediately realize their injuries.
For example, a patient visits a doctor for a yearly physical, and the doctor orders a routine colonoscopy to check for polyps or any other abnormalities. During the procedure, the doctor removes a polyp and sends it to the lab for testing. The lab finds the sample contains cancer cells. The doctor does not follow up with the lab or check for results and fails to follow through and communicate them to the patient. Months later, the same patient begins to notice large amounts of blood in their stool, so they return to their doctor with the symptoms.
The patient learns that he or she has colon cancer. Yet, the doctor technically had this information months ago. The failure of the doctor to act—malpractice—occurred immediately after the colonoscopy; however, the patient did not discover the failure until much later after they experienced more severe symptoms because of the spread of cancer.
The situation described above is an example of delayed discovery. It often occurs in medical malpractice situations. Although an injury occurs, sometimes a patient does not discover the damage their doctor has done for weeks, months, or years. In these cases, the two-year statute of limitations time clock does not begin until a patient discovers their injury, or until a patient should have discovered their injury.
Statute of Repose in Pennsylvania Medical Malpractice Claims
A statute of repose also applies to medical malpractice claims in Pennsylvania. You can think of a statute of repose as an absolute time limit for taking legal action against the doctor who allegedly harmed you. Even with delayed discovery, you cannot take legal action beyond seven years from the date of injury.
Surgical leftovers are the only exception to Pennsylvania’s statute of repose in medical malpractice claims. If a patient undergoes surgery, and the surgeon leaves a surgical tool, sponge, gauze, or some other item inside the body, the patient can take action whenever they discover the object, even if it goes beyond seven years.
Exceptions for Child Victims of Medical Malpractice
Statutes of limitations for medical malpractice claims do not apply to children. Birth injuries provide a common example as to why the law provides this exception. Consider a situation where a doctor delivers a baby and needs to use an extraction vacuum. The doctor uses the tool improperly and causes permanent brain damage to a newborn baby. Brain damage varies in its severity and consequences based on the location and type of brain injury. In some cases, parents will not notice symptoms of a brain injury until their baby, toddler, or child misses two or more developmental milestones.
Missing a milestone does not automatically mean the parent immediately understands where and when the damage occurred. Also, some symptoms of a brain injury are shared with other conditions that might not be a result of medical malpractice. It can take months or years for parents to figure out their child suffered a birth injury. For example, permanent brain damage can lead to long-term conditions such as depression, anxiety, increased aggression, learning disabilities, and more.
Unfortunately, some children suffer malpractice injuries and parents do not take action for them, or they discover their malpractice injuries well into adulthood. If a person suffers harm as a result of medical malpractice as a child, Pennsylvania law gives them until seven years from the date of their 20th birthday to bring a medical malpractice lawsuit against their doctor, regardless of the date of injury.
Procedural Requirements for Pennsylvania Medical Malpractice Claims
Medical malpractice claims come with an abundance of extra requirements in comparison to run-of-the-mill accident injury claims that emerge from traffic collisions, slip and fall accidents, and other negligence. Most of the additional procedural requirements exist to ensure that people who sue their doctors or a medical facility have a viable claim and doctors and courts are not overrun with frivolous lawsuits. Two of the main procedural differences in Pennsylvania medical malpractice claims are the requirements for a Certificate of Merit and expert medical witness testimony.
Certificate of Merit Requirement in Pennsylvania Medical Malpractice Claims
A Certificate of Merit is an affidavit given by another licensed professional that provides 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.” The professional who provides their statement must also conclude that the conduct of the professional led to the harm discussed in the original complaint.
The affidavit might also include a statement that addresses the person responsible for the treating physician. For example, if you received treatment from an intern or a resident that lead to harm or injury, the expert providing the statement would name the supervising physician as potentially responsible for malpractice.
Once your attorney files a complaint against your doctor, he or she must provide a certificate of merit within 60 days. In the context of medical malpractice claims, the professional who provides the statement will likely be another doctor in the same practice area where the malpractice allegedly occurred. The law requires the expert to have sufficient education, training, knowledge, and experience to provide credible testimony at trial. However, the doctor who provides the statement does not have to testify at trial.
After your attorney has certified the certificate of merit and has served a copy to the doctor you are suing, the doctor, or representing attorney, must respond with a plea within 20 days of receipt or 60 days if the doctor resides outside the United States.
Expert Reports in Pennsylvania Medical Malpractice Claims
Suing your doctor also means you, with the help of your medical malpractice lawyer, must provide expert reports and testimony at trial. The law requires plaintiffs to provide export testimony to support their claims or to support the defense’s claims against the alleged malpractice.
Typically, your doctor must request this report and testimony, but cannot do so until 90 days after responding to the initial complaint. You have 180 days to provide an expert report to the defense that summarizes the expert testimony that you will offer at trial to support your medical malpractice claim.
These are the major procedural requirements for suing your doctor for malpractice, but many smaller requirements exist. Failure to comply with all requirements can result in sanctions or a verdict in favor of the plaintiff. Get an experienced medical malpractice attorney in your corner for the best chances to obtain the compensation you deserve for injuries and losses related to medical malpractice.
Proving Your Medical Malpractice Claim
As mentioned above, medical malpractice is an act or failure that deviates from the normal standard of care expected within the medical community. That standard of care can vary slightly based on the circumstances and the specific medical area of the lawsuit but typically is agreed upon by other doctors. On a broad level, proving your medical malpractice claim is akin to proving that your doctor did not act according to the expected standard of care. Specifically, your attorney must prove your doctor was negligent.
In medical malpractice claims, four components make up the legal notion of negligence: duty, breach of duty, harm, and causation. In most medical malpractice cases, your attorney must prove each of these elements to prove negligence. Here is an overview of each element of negligence and how it relates to medical malpractice claims:
Duty of Care
All doctors have a legal duty of care towards their patients, so establishing a duty of care is the simplest part of proving negligence in a medical malpractice claim. Your attorney has to prove that you had a doctor-patient relationship with the defendant to show your doctor owed you a duty of care. Appointment records, medical records, prescription records, and any other paper or digital documents that show a doctor diagnosing you or treating you establishes this relationship.
Breach of Duty
The duty of care that a doctor owes a patient must meet the accepted standard of care within the medical community. The broadly accepted definition of that standard of care is how another doctor would have diagnosed or treated a patient under the same or similar circumstances. Although exceptions exist, establishing a specific standard of care typically includes comparing the actions of doctors in the same practice area.
For example, if you sue your OB/GYN, courts will look to other OB/GYN’s for the standard of care. If you sue your oncologist, courts will look to other oncologists for the standard of care. Sometimes when a general practitioner commits malpractice, each side might present experts from various specializations to establish the specific standard of care for a medical malpractice claim.
Negligence in a medical malpractice claim is an intentional or unintentional breach of duty that serves as a deviation from the accepted standard of care. Even if you suffered harm, if you find that other doctors would have made the same choices in a similar situation, you will have a hard time prevailing your medical malpractice claim.
The notion of a breach of duty separates bad outcomes from medical errors in terms of diagnosis and treatment. It’s a horrible ordeal to cope with bad outcomes in a medical setting, but not all of those outcomes are mistakes or errors that constitute a breach of duty towards a patient. Although it’s tragic when treatments do not work as expected or hoped, failed treatment does not always translate to medical malpractice.
Doctors make mistakes, some more than others. Sometimes errors occur from a communication breakdown. Other times doctors are tired from working long shifts or rushed because of heavy patient load. Fortunately, not all medical errors lead to injuries or illness, and not all mistakes are life-threatening.
Providing negligence in a medical malpractice claim means you must prove that your doctor’s breach of duty caused you harm. Doctors can breach their duty without always causing damage or harm to a patient. The following example will demonstrate how the same careless action could be negligence that constitutes medical malpractice in one case, but not in another.
Consider two patients who go to the same doctor because they have suffered from a sore throat for a few days. After examining each patient, the doctor orders throat cultures to check for strep throat in each patient. Both patients’ tests show positive for strep. Penicillin, or other antibacterial drugs in the same family, is the most common treatment for strep throat.
It’s that time of the year when hospitals are full of kids and students who are sick, and strep has been going around. To treat as many patients as possible and go home early to get some rest, the doctor automatically prescribes the same antibiotic to both strep patients and sends them on their way, without getting a complete medical history.
An hour later, one patient calls the doctor and complains of a mild rash. The doctor suspects an allergy, so he orders the patient not to take another dose and calls in a different prescription without penicillin to treat the strep. The rash disappears, and the patient takes the new prescription and fully recovers from strep within a week.
The other patient was not so lucky. He called the doctor after suffering swelling and finding it difficult to breathe. The doctor, understanding this was likely a serious allergic reaction to the penicillin, ordered the patient to come to the hospital as soon as possible. On the way to the emergency room, the patient’s allergic reaction became stronger. While in the waiting room, the patient ultimately suffered anaphylaxis and cardiac arrest that led to his death.
The doctor failed to get a medical history from either patient, but the first patient did not suffer any measurable harm. From a legal standpoint, the first patient would likely not be a victim of negligence because the corrective action took care of the issue, and the patient recovered completely. Conversely, the second patient not only suffered harm that resulted in more medical expenses but eventually died. In this situation, surviving family members have grounds for a wrongful death medical malpractice lawsuit.
In medical malpractice suits, causation is sometimes the most difficult aspect of negligence to provide. It most certainly is the most disputed. Some situations, such as foreign objects left in the body, clearly leave little room for argument. Other situations make it difficult to prove that a doctor’s breach of duty specifically led to the harm a patient suffered. Medical malpractice claims involving a doctor’s failure to diagnose a terminal disease provide an example of the difficulty of proving causation.
Consider the previous example about the patient who had a delayed diagnosis of colon cancer because the doctor never followed through with lab results after a colonoscopy. The doctor’s failure did not cause the patient to develop cancer. In this situation, the further spread of the disease constitutes harm. Had the doctor diagnosed cancer earlier, the patient could have avoided an aggressive treatment and had a higher likelihood of surviving.
Proving your medical malpractice claim against your doctor requires proving negligence, which is not always as easy as it seems. You need an experienced medical malpractice attorney on your side to make your case as strong as possible.
Alternative Dispute Resolution in Medical Malpractice Claims
Suing your doctor does not always result in a civil trial. Both sides have an incentive to avoid the extra expenses of litigation. Alternative Dispute Resolution (ADR) includes other methods of resolving a medical malpractice case without going into a courtroom. The two most common forms of ADR are mediation and arbitration. Mediation is especially popular because it typically results in avoiding litigation between 75 and 90 percent of the time. Additionally, plaintiffs and defendants are satisfied with the outcome of mediation, about 90 percent of the time. Arbitration is not as popular, but it does help reduce the likelihood of going to court.
If your attorney suggests mediation or your doctor’s legal team requests mediation, you attend a meeting with your attorney where a mediator is present to help you resolve the claim. A mediator is a neutral third person who facilitates a discussion about the claim and about potential settlement options to resolve the dispute. Mediation is voluntary to the extent that you do not have to reach an agreement, and the mediator has no power to enforce a resolution. You can think of mediation as a formal type of non-binding negotiation.
Arbitration is similar to mediation, except the arbitrator has the power to decide a medical malpractice case. You can think of arbitration as a less formal and cheaper form of a trial. Each side gets to make an opening statement and provide their evidence to the arbitrator. Once the arbitrator has heard all evidence, he or she issues an award to you. You can potentially participate in binding or non-binding arbitration. Binding arbitration means the arbitrator’s decision is final, and there is little room for appeal. Non-binding arbitration means the arbitrator’s award is recommended. Both sides must agree to finalize the agreement.
Damages in Pennsylvania Medical Malpractice Claims
If you prevail in your medical malpractice claim against a doctor, you could receive compensation for damages in a settlement or as a result of a jury verdict in your favor. Damages include compensation for your injuries or illness and related losses. Medical malpractice claims vary greatly, so it follows that the types of damages a victim receives also varies greatly among cases.
Some examples of common damages associated with medical malpractice claims include:
- Medical treatment costs including emergency care, future treatment costs, surgery, medication, second opinions, specialized care, and follow-up visits
- Physical therapy, occupational therapy, mental health services, and other special therapy to help with physical and mental rehabilitation
- In-home care or long-term nursing care
- Travel and lodging expenses incurred when seeking medical treatment
- Current and future lost wages
- Home renovation costs to make your house more accessible
- Costs for outside domestic help, such as cleaning service, lawn care service, etc.
- Physical and emotional pain and suffering
- Mental anguish
- Loss of enjoyment in life
- Loss of consortium with a spouse
- Decreased life expectancy
- Fear of future medical treatment or injuries from malpractice
Punitive Damages in Medical Malpractice Claims
In addition to the compensatory damages listed above, you could also collect punitive damages. Punitive damages serve to punish your doctor for his or her professional misconduct; however, courts do not award them in every case. Under Pennsylvania law, courts only award punitive damages in medical malpractice cases when a doctor’s intentional actions or reckless abandonment cause harm to a patient. These situations are rare.
The court will examine the character of your doctor’s act, the nature and extent of the harm you suffered, and the financial resources of your doctor. Gross negligence is also grounds for a court to award punitive damages in a Pennsylvania medical malpractice case.
Damage Caps on Medical Malpractice Claims in Pennsylvania
Many states legislate a limit on the amount of compensation a plaintiff can receive if they win a medical malpractice case. Fortunately, Pennsylvania does not limit any of the compensatory damages listed above, including economic losses like lost wages and non-economic losses like pain and suffering. This means you can recover the full amount of your losses under the law that result from your doctor’s malpractice.
In the rare event that your case warrants the receipt of punitive damages, Pennsylvania law does limit them. The punitive damages you receive cannot exceed more than 200 percent of your compensatory damages when you sue an individual physician. This cap does not exist when medical malpractice includes intentional misconduct. Pennsylvania law also states that punitive damages shall not be less than $100,000.
When Pennsylvania courts award punitive damages, they only allow plaintiffs to collect 75 percent of the award. The defendant must pay the remaining 25 percent of the award to Pennsylvania’s Medical Care Availability and Reduction of Error Fund.
Contact an Experienced Medical Malpractice Attorney For Assistance
Suing a doctor for malpractice is much more difficult than it seems. Medical malpractice cases have many moving parts, mostly due to additional procedural requirements, including a Certificate of Merit and expert witness testimony. Not only do you have to comply with mandatory procedures, but you also need to successfully prove negligence to prevail in your medical malpractice claim. An experienced medical malpractice lawyer can help you get the compensation you deserve after a doctor’s negligence caused you harm.