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Medical Malpractice FAQs

To help you better understand medical malpractice, here are answers to some frequently asked questions:

Q: What is a medical malpractice?

A: Medical malpractice is a claim made for injury caused by a health-care professional’s failure to render the care that a reasonable health-care professional would provide. This can include failure to provide the care or initiating care that a reasonable health-care professional would not undertake.

Q: How common are medical malpractice cases?

A: Although numerous studies have shown a huge number of deaths caused every year by medical malpractice, as mentioned above, very few patients who are injured by medical malpractice actually file lawsuits. 

Q: Does a bad medical outcome mean that I have a medical malpractice claim?

A: No. A bad outcome does not necessarily mean that a health-care practitioner failed to provide appropriate treatment. When a case goes to trial, juries are instructed that they cannot infer negligence from a bad outcome.

Q: What do I have to prove to be successful in a medical malpractice claim?

A: In order to recover monetary damages for medical malpractice in Pennsylvania, a plaintiff (the person or persons filing suit) must prove ALL of the following:

1)   A breach of the standard of care (ie. The doctor(s) and/or hospital didn’t do what other reasonable health-care providers would have done.)

2)   Factual causation (ie. The actions of the doctor(s) and/or hospital caused the injury.)

3)   Injury

If a plaintiff (the injured party) fails to prove one or more of these elements by a preponderance of the evidence, he/she cannot recover monetary damages.

Q: How much time do I have to file a medical malpractice claim?

A: Although there are a few exceptions, generally speaking, a medical malpractice claim has to be filed within two years of the medical care that caused the injury. That is known as the statute of limitations. For minors, the two-year statute of limitations begins to run from his/her 18th birthday, and in wrongful death cases, the statute of limitations runs from the date of death. In cases where a plaintiff is initially unaware that he/she was injured as a result of medical malpractice, the two-year statute of limitations may be deemed to start running from the date the plaintiff knew or should have known of the connection between the medical care and the injury.

Q: Can I pursue a medical malpractice claim without an attorney?

A: Although “pro se” litigation of medical malpractice cases is not prohibited, it is not recommended. Medical malpractice cases are extremely complex and it is difficult to pursue such a case in Pennsylvania without an attorney given the peculiar procedure rules that have been enacted. For example, within 60 days of filing a complaint for professional negligence, a plaintiff must file “Certificates of Merit” indicating that an appropriately licensed professional has reviewed the matter and certified in writing that there is a reason to believe the care provided fell below the accepted standard of care and caused the injury.

Q: What can I recover in a medical malpractice claim?

A: The amount and type of damages that can be recovered in a particular medical malpractice claim depend, to a large degree, on the facts presented. However, generally speaking, Pennsylvania law allows a plaintiff who proves that his/her injury was caused by medical malpractice to recover both economic and non-economic damages.  Economic damages include loss of earnings and medical expenses, whereas non-economic damages include items such as pain and suffering, emotional distress and disfigurement.  In addition, the spouse of an individual injured by medical malpractice may recover loss of consortium damages for loss of society, comfort and companionship. In some instances, an individual who witnesses a close relative being injured by medical malpractice can recover for his/her emotional distress in a negligent infliction of emotional distress claim. Finally, in very rare circumstances where a defendant’s conduct is deemed outrageous or recklessly indifferent by clear and convincing evidence, a plaintiff may be entitled to punitive damages to punish the defendant and deter him/her/others from similar conduct in the future.

When medical malpractice results in a patient’s death, a wrongful death and/or survival action claim can be filed by the deceased person’s survivors. The damages available in such cases differ slightly, but are substantially similar to, those outlined above.

Q: How much will it cost me to pursue a medical malpractice claim?

A: The vast majority of medical malpractice cases are handled on a contingency fee basis. That means HKQ receives a percentage of any recovery obtained. We pay for the costs of pursuing the claim up front until a recovery is obtained so that our clients do not have any “out-of-pocket” expenses associated with the case.