September 11th, 2020 Joseph A. Quinn, Jr.

Every year, an estimated 250,000 to 440,000 people die in the United States as a result of medical errors. That makes medical malpractice the third leading cause of death in the Country, behind only heart disease and cancer. In addition to the fatalities, it is also estimated that more than a million other persons are injured each year as a result of medical malpractice.

Medical malpractice occurs when the care given falls below the “standard of care,” which is defined as the level and type of care that a reasonably competent and skilled health care professional with a similar background and in the same community would have provided under the circumstances. A medical malpractice claim can be brought against a physician, physician’s assistant, nurse, other health provider, as well as against the entity that employs them and health care facilities such as hospitals or nursing homes. As leading Medical Malpractice Attorney Joseph A. Quinn, Jr. of Hourigan, Kluger and Quinn notes, “under the doctrine of ostensible agency, a hospital or other health care facility may potentially be liable for the negligence of a health care provider even if it does not directly employ that provider.”

Medical malpractice can include (but is not limited to):

  • failure to diagnose
  • delayed diagnosis
  • misdiagnosis
  • surgical errors
  • medication errors
  • anesthesia errors
  • failure to administer proper treatment
  • failure to resuscitate or rescue
  • hospital infections
  • injuries caused by medical devices or implants
  • improper discharge from hospital
  • improper follow-up or aftercare

While medical malpractice can take many forms, all Pennsylvania legal claims based on the tort are governed by the Pennsylvania Medical Care Availability & Reduction of Error Act (MCARE).

What is MCARE?

Enacted in 2002, MCARE was designed to ensure that doctors, other health care professionals, and hospitals are compliant with medical professional liability insurance requirements. The goal is to facilitate reasonable compensation for victims of medical malpractice.

MCARE established a special fund that is used to pay claims against participating healthcare providers and eligible entities for damages awarded in medical professional liability actions that exceed the limits of primary insurance coverage.

Expert testimony

MCARE imposes strict requirements not only on medical professionals and facilities, but also on plaintiffs. For instance, MCARE requires that: “An expert testifying on a medical matter, including the standard of care, risks and alternatives, causation and the nature and extent of the injury, must meet the following qualifications: (1) Possess an unrestricted physician's license to practice medicine in any state or the District of Columbia. (2) Be engaged in or retired within the previous five years from active clinical practice or teaching.”

In addition, “an expert testifying as to a physician's standard of care also 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. (2) Practice in the same subspecialty as the defendant physician or in a subspecialty which has a substantially similar standard of care for the specific care at issue. (3) In the event the defendant physician is certified by an approved board, be board certified by the same or a similar approved board.”

Collateral source rule

The passage of MCARE also substantially modified Pennsylvania’s collateral source rule for medical malpractice cases. Plaintiffs used to be able to recover past medical expenses and lost wages in a medical malpractice lawsuit even if they were already paid by an insurance company or another third party. Under MCARE, however, only those damages for which you have not received payment prior to trial can be recovered. There are, however, exceptions to this rule. The following types of benefits are exempt:

  • Life insurance proceeds
  • Social Security benefits
  • Department of Public Welfare benefits
  • Other public benefits provided by federal statute

Statute of repose

Last year, MCARE’s seven-year limitation on bringing medical malpractice lawsuits was struck down by the Pennsylvania Supreme Court. In the landmark case of Yanakos v. UPMC, the Supreme Court reversed earlier caselaw and ruled that the statute of repose violates the Pennsylvania Constitution’s guarantee of open access to the courts.

Recovering Monetary Damages

In the event of a settlement or favorable verdict, the plaintiff receives financial compensation in the form of compensatory damages, which may include both economic and non-economic damages. Economic damages compensate for actual costs, such as medical expenses and lost wages due to time off for work. Non-economic damages cover intangible costs such as pain and suffering.

Punitive damages may also 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.

Unlike some other states, Pennsylvania has no caps on compensatory damages. Absent intentional conduct, however, an award of punitive damages in a medical malpractice case may not exceed 200% of the compensatory damages awarded. Twenty-five percent of any punitive damages award goes to the Medical Care Availability and Reduction of Error Fund.

Confidentiality of MCARE Settlements

Although not mandated by law, the standard Release that is required in most settlements of medical malpractice cases which includes contributions from the MCARE Fund contain a confidentiality provision which prohibits the settling party or his or her attorney from divulging details about either the case or the terms of the settlement. MCARE also frequently attempts to force a settling party or the Court to “seal” the records pertaining to the settlement so that they can not be viewed by the general public. Through these measures, MCARE improperly tries to muzzle victims of medical malpractice and prevent others from learning about acts of medical malpractice occurring in their community.

The complexity of a medical malpractice lawsuit demands a team of highly skilled attorneys, paralegals, nurses, support staff and technical experts. Over the last five years, the experienced and dedicated team at Hourigan, Kluger & Quinn has recovered a record number of verdicts and settlements for victims of medical malpractice or their families.

To schedule a no obligation consultation with one of our medical malpractice attorneys, call Hourigan, Kluger and Quinn at (800) 760-1529 (1-Law).

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