Medical-malpractice cases are won in the medical record.
Every malpractice claim turns on two questions: did the care fall below the accepted standard, and did that failure cause the injury? In our experience handling medical-malpractice claims, those questions are answered in the chart long before a jury hears them. That is why, in the cases we accept, we retain a physician in the relevant subspecialty early.
The Pennsylvania Framework: The Mcare Act, the Certificate of Merit, and Who May Give Expert Testimony Against a Physician
The rules in this section are Pennsylvania's. Pennsylvania has a dedicated statute for medical liability cases, and by its own terms that statute “shall be known and may be cited as the Medical Care Availability and Reduction of Error (Mcare) Act”.1 It reaches a “medical professional liability claim,” which it defines as “[a]ny claim seeking the recovery of damages or loss from a health care provider arising out of any tort or breach of contract causing injury or death resulting from the furnishing of health care services which were or should have been provided”.2
In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, Pennsylvania requires the attorney for the plaintiff, or the plaintiff if not represented, to file a certificate of merit, signed by the attorney or party, with the complaint or within sixty days after the filing of the complaint.3 The rule also provides that “[t]he court, upon good cause shown, shall extend the time for filing a certificate of merit for a period not to exceed sixty days”.4 “A motion to extend the time for filing a certificate of merit must be filed by the thirtieth day after the filing of a notice of intention to enter judgment of non pros on a professional liability claim under Rule 1042.6(a) or on or before the expiration of the extended time where a court has granted a motion to extend the time to file a certificate of merit, whichever is greater”,4 and “[t]he filing of a motion to extend tolls the time period within which a certificate of merit must be filed until the court rules upon the motion”.4 If the certificate is not signed by an attorney, the party signing it shall, “in addition to the other requirements of this rule, attach to the certificate of merit the written statement from an appropriate licensed professional as required by subdivisions (a)(1) and (2)”.5 That certificate must state one of three things: that “an appropriate licensed professional has supplied 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 and that such conduct was a cause in bringing about the harm”,6 or that the claim that the defendant deviated from an acceptable professional standard “is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard”,7 or that “expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim”.8 When more than one professional is sued, “[a] separate certificate of merit shall be filed as to each licensed professional against whom a claim is asserted”.9 In our office the reviewing physician's written statement is in hand before we file, so the certificate rests on real expert review.
No person is competent to offer an expert medical opinion in a medical professional liability action against a physician unless that person “possesses sufficient education, training, knowledge and experience to provide credible, competent testimony” and fulfills the additional qualifications set forth in that same section of the Act, as applicable.10 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 “[p]ossess an unrestricted physician's license to practice medicine in any state or the District of Columbia” and must “[b]e engaged in or retired within the previous five years from active clinical practice or teaching”.11 The statute states its own exception: “Provided, however, the court may waive the requirements of this subsection for an expert on a matter other than the standard of care if the court determines that the expert is otherwise competent to testify about medical or scientific issues by virtue of education, training or experience”.11
An expert testifying as to a physician's standard of care must, in addition, 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”.12 That expert must also “[p]ractice 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, except as provided in subsection (d) or (e)”.12 And “[i]n the event the defendant physician is certified by an approved board,” the expert must “be board certified by the same or a similar approved board, except as provided in subsection (e)”.12 A court may waive the same subspecialty requirement for an expert testifying on the standard of care for the diagnosis or treatment of a condition if the court determines that13 the expert “is trained in the diagnosis or treatment of the condition, as applicable”14 and “the defendant physician provided care for that condition and such care was not within the physician's specialty or competence”.15 Separately, a court may waive the same specialty and board certification requirements for a standard of care expert “if the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in or full-time teaching of medicine in the applicable subspecialty or a related field of medicine within the previous five-year time period”.16 Matching the defendant's specialty to the testifying expert is the part of this work we treat as our core discipline.
When a hospital answers for another provider's care
When a family sits down with us after an injury in a hospital, one of the first questions is whether the hospital can be made to answer for the care of the doctor who treated the patient, or only the doctor. Under Pennsylvania's Mcare Act, a hospital may be held vicariously liable for the acts of another health care provider through principles of ostensible agency, but only if the evidence shows what the statute requires.17
The statute names two ways to make that showing, and they are joined by the word "or", so either one will do.1819 The first is that a reasonably prudent person in the patient's position would have been justified in believing that the care in question was being provided by the hospital or its agents.18 The second is that the care in question was advertised or otherwise represented to the patient as care being provided by the hospital or its agents.19
The same Pennsylvania statute adds that evidence that a physician holds staff privileges at a hospital is not enough, on its own, to establish vicarious liability through ostensible agency unless the person bringing the claim meets one of those two requirements.20
In a hospital case, we ask at the first meeting for every admission form, consent form, and discharge paper the patient was handed, along with any hospital advertising, signage, or website page the patient saw before the treatment. We also ask the patient, and the family members who were there, to tell us in their own words who they understood to be treating them.
What you can recover in a Pennsylvania medical malpractice case
In a medical professional liability action, the statute's term for a Pennsylvania malpractice case, the trier of fact, meaning the jury or the judge who decides the facts, must make separate findings for each claimant, and, except as provided under section 508 of the same Act, those findings state past damages in three lump sums: medical and other related expenses, loss of earnings, and noneconomic loss.21 The same findings state future damages in three parts: medical and other related expenses set out by year, loss of earnings or earning capacity in a lump sum, and noneconomic loss in a lump sum.21 We build the proof around those separate categories from the first meeting.
Unless the exception described below applies, future damages for medical and other related expenses are paid as periodic payments, after the proportionate share of counsel fees and costs is paid based on the present value of those future damages.22 The trier of fact may vary the amount of those payments from year to year over the claimant's expected life to account for different annual needs, including the claimant's immediate needs, and it must also provide for buying and replacing medically necessary equipment in the years that spending will be required, as may be necessary.22 Liability for periodic payments for medical expenses that are not yet due ends when the claimant dies.23
Two of the other rules on those payments matter to a client. If the insurer that owes a periodic payment defaults because it is insolvent, the claimant is entitled to receive that payment from the Medical Care Availability and Reduction of Error Fund, or, if that fund has ceased operations, from the Pennsylvania Life and Health Insurance Guaranty Association or the Property and Casualty Insurance Guaranty Association, whichever applies.24 A claimant can also keep future medical damages out of periodic payments: they will not be awarded that way if the claimant objects and stipulates that the total future medical and other related expenses, without reduction to present value, do not exceed a threshold amount the statute sets.25 We walk every client through that choice before trial.
Punitive damages are a different kind of award, and they are worth explaining plainly. Under Pennsylvania's Mcare Act, punitive damages may 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, and in assessing them the trier of fact may consider the character of the provider's act, the nature and extent of the harm to the patient that the provider caused or intended to cause, and the wealth of the provider.26 A showing of gross negligence is not enough to support a punitive award.27 A health care provider that is only vicariously liable for its agent's conduct cannot be ordered to pay punitive damages unless it is shown by a preponderance of the evidence that the provider knew of and allowed the agent's conduct that led to the award.28
Except in cases alleging intentional misconduct, punitive damages against an individual physician may not exceed 200 percent of the compensatory damages awarded.29 When punitive damages are awarded, they may not be less than a floor amount the statute sets unless the trier of fact returns a lower verdict amount.29 When a verdict includes punitive damages, 75 percent of the punitive portion is paid to the prevailing party and 25 percent is paid to the Medical Care Availability and Reduction of Error Fund.30 We explain that split at the outset so no client learns of it for the first time after a verdict.
The Deadline: Two Years, and the Rules That Can Move It
In Pennsylvania, a defined list of actions must be commenced within two years.31 That list includes an action to recover damages for injuries to the person caused by the negligence of another.32 In a suit for personal injuries, the right to sue generally arises when the injury is inflicted.33 When a patient first calls our office, we fix these dates from the records before anything else.
What brings the discovery rule into play is the inability of the injured person, despite the exercise of reasonable diligence, to know that he is injured and by what cause.34 When the rule applies, the statute is tolled, and does not begin to run until the injured party discovers, or reasonably should discover, that he has been injured and that his injury was caused by another party's conduct.35
If the person entitled to bring a civil action in Pennsylvania is an unemancipated minor when the cause of action accrues, the period of minority is not counted toward the time for commencing the action, and that person has the same time to sue after reaching majority as the statute allows others.36 For this rule, a minor is any individual who has not yet attained 18 years of age.37
Concealment is the other question we read the chart for. The doctrine of fraudulent concealment also tolls the statute; it rests on estoppel and provides that a defendant may not invoke the statute of limitations if, through fraud or concealment, he causes the plaintiff to relax his vigilance or deviate from his right of inquiry into the facts.38 It does not require fraud in the strictest sense, with an intent to deceive, but fraud in the broadest sense, which includes an unintentional deception.38 The plaintiff bears the burden of proving fraudulent concealment by clear, precise, and convincing evidence.38 A statute tolled by fraudulent concealment begins to run when the injured party knows or reasonably should know of his injury and its cause.39
If the Certificate of Merit Is Missing: Notice, Judgment of Non Pros, and the Motions That Prevent It
Suppose the certificate above is missing. In Pennsylvania the defense cannot go straight to a judgment: "except as provided by subdivision (b)," a defendant seeking a judgment of non pros under Rule 1042.7(a) "shall file a written notice of intention to file the praecipe" and serve it on the plaintiff's attorney of record, or on the plaintiff if unrepresented, "no sooner than the thirty-first day after the filing of the complaint".40 Notice is excused in two situations:41 the court granted an extension and the plaintiff missed it,42 or the court denied the motion to extend.43
After the notice, the plaintiff may move for a ruling on whether a certificate is necessary; the motion tolls the filing time until the court rules, and if a certificate is required it is due within twenty days of entry of the order on the docket or within the original period, whichever is later.44 The motion may be filed any time before judgment of non pros is entered; afterward, a party cannot claim a certificate was not required.45
The prothonotary, on the defendant's praecipe, "shall enter a judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time provided that" four conditions hold:46 "there is no pending motion for determination that the filing of a certificate is not required or no pending timely filed motion seeking to extend the time to file the certificate";47 no certificate has been filed;48 "except as provided by Rule 1042.6(b)," a certificate of service of the notice is attached to the praecipe;49 and, "except as provided by Rule 1042.6(b)," the praecipe is filed no less than thirty days after the notice is filed.50 The prothonotary may not enter judgment if the certificate was filed before the praecipe.51
How fault is shared
One of the first things we ask a new client about is the patient's own conduct, such as a missed appointment. In Pennsylvania, if you were partly at fault in a case to recover damages for negligence resulting in death or injury to person or property, your own negligence "shall not bar a recovery" where it "was not greater than the causal negligence of the defendant or defendants against whom recovery is sought".52 Even then, your damages "shall be diminished in proportion to the amount of negligence attributed to" you.52
If more than one provider may be at fault for your injury, we review each one. In Pennsylvania, where recovery is allowed against more than one person and liability is attributed to more than one defendant, each defendant is liable for its own proportion of the total damages awarded, measured by that defendant's share of the liability attributed to all defendants and to other persons to whom liability is apportioned under § 7102(a.2).53 Except as set forth in § 7102(a.1)(3), a defendant's liability "shall be several and not joint," and the court must enter a separate and several judgment in your favor and against each defendant for the apportioned amount of that defendant's liability.54
If you settled with anyone, we account for it. Where a defendant or other person has entered into a release with you with respect to your action and is not a party to it, the question of that person's liability must be put to the trier of fact (the judge or jury deciding the facts) upon appropriate requests and proofs by any party, and this is done for purposes of apportioning liability only.55 A person whose liability may be determined this way does not include an employer to the extent that the employer is granted immunity from liability or suit under the Workers' Compensation Act.55
What Pennsylvania's Mcare Act Says About Informed Consent
Everything in this section is Pennsylvania law. It comes from one statute, the Mcare Act, and chiefly from Section 504 of that Act.56 This page describes only what the statute itself provides about informed consent, and stops where its text stops. Under Section 504, "[e]xcept in emergencies," a physician in Pennsylvania owes a duty to a patient to obtain the informed consent of the patient or the patient's authorized representative before conducting certain listed procedures, and the statute says that duty "may be fulfilled by a physician or by a qualified practitioner under subsection (b)".57 Section 504 was amended on June 30, 2021.56 When a client asks us whether the consent they signed was enough, we begin with the text of this section.
The statute names five procedures.57 The first is performing surgery, including the related administration of anesthesia.57 The second is administering radiation or chemotherapy.57 The third is administering a blood transfusion.57 The fourth is inserting a surgical device or appliance.57 The fifth is administering an experimental medication, using an experimental device, or using an approved medication or device in an experimental manner.57 That is the whole list as the statute states it.57
Consent is informed "if the patient or the patient's authorized representative has been given a description of a procedure set forth in subsection (a) and the risks and alternatives that a reasonably prudent patient would require to make an informed decision as to that procedure".58 The measure is what a reasonably prudent patient would require, and it covers a description of the procedure, its risks, and its alternatives.58 On who may obtain the consent, the statute provides that a physician "may delegate the task of obtaining the informed consent of the patient or the patient's authorized representative to a qualified practitioner for a procedure under subsection (a) performed by a physician or performed by a qualified practitioner".58 And if claims for failure to obtain informed consent are alleged, "the physician or qualified practitioner shall be entitled to present evidence of the description of that procedure and those risks and alternatives that a physician or qualified practitioner, acting in accordance with accepted medical standards of medical practice, would provide".58
Expert testimony "is required to determine whether the procedure constituted the type of procedure set forth in subsection (a) and to identify the risks of that procedure, the alternatives to that procedure and the risks of these alternatives".59 In plain terms, an expert is needed both to determine whether the procedure is one the statute lists and to identify the risks of that procedure, its alternatives, and the risks of those alternatives.59
Section 504(d) addresses liability in two paragraphs,60 and both are stated here. Under the first paragraph, liability under the section "for failure to obtain the informed consent only may be established if the patient proves that receiving such information would have been a substantial factor in the patient's decision whether to undergo a procedure set forth in subsection (a)".60 Under the second paragraph, liability "may be established under this section for failure to seek a patient's informed consent if the physician or qualified practitioner knowingly misrepresents to the patient the professional credentials, training or experience of the physician or qualified practitioner who performs the procedure".60
The compiler's note records that Section 2 of Act 61 of 2021 provided that the amendment of Section 504 "shall apply to all pending litigation," and that "pending litigation" means "any action in which a final order has not yet been entered prior to the effective date of this section".61 The note does not say what the amendment changed, and this page does not describe that.
A separate section, Section 504.1, was added to the Act on November 21, 2023.62 A health care provider, "in the course of participating in or overseeing a professional instruction or clinical training program, owes a duty to a patient to obtain specific informed consent, in verbal and written form, before knowingly performing" certain listed examinations "on a patient who is anesthetized or unconscious in a facility that provides health care services".63 This page does not list those examinations. On liability, "[a] health care provider shall be liable under section 504 for a violation of this section," and where a student participating in and being overseen by a health care provider as part of that program violates the section, "the health care provider overseeing the student's professional instruction or clinical training program shall be liable under section 504".64
Which County: Venue for a Pennsylvania Malpractice Case
Under Pennsylvania's venue rule, "except as otherwise provided by subdivisions (b) and (c)," an action against an individual "may be brought in and only in" a county on one of five listed grounds; the three we look to first are where the individual may be served, where the cause of action arose, and where a transaction or occurrence took place out of which the cause of action arose.65 When the defendant is a corporation or similar entity, partnership, unincorporated association or political subdivision, "except as otherwise provided in subdivision (c)," venue lies in and only in the counties a separate rule designates for that kind of defendant.66 Where two or more defendants are sued to enforce a joint or joint and several liability, except in an action in which the Commonwealth is a party defendant, the action may be brought against all of them in any county in which venue may be laid against any one of them under the general rules of subdivisions (a) or (b).67 If the plaintiff states more than one cause of action against the same defendant in the complaint pursuant to Rule 1020(a), the action may be brought in any county in which any one of the individual causes of action might have been brought.68 Improper venue shall be raised by preliminary objection and if not so raised shall be waived.69 If a preliminary objection to venue is sustained, and there is a county of proper venue within the State, the action shall not be dismissed but shall be transferred to the appropriate court of that county, and the costs and fees for transfer and removal of the record shall be paid by the plaintiff.69
How we build the medicine.
We obtain the complete record, including the audit trail and metadata, which show when entries were made and when they were changed. What the medical record actually shows is often different from what the discharge summary says happened; the discrepancies tend to help families, not hurt them.
Then we put the chart in front of the right reader: a board-certified physician in the relevant subspecialty, an obstetrician for a labor record, an infectious-disease specialist for a sepsis timeline, an independent radiologist to re-read the imaging. In catastrophic cases we add a life-care planner and an economist, so the damages reflect decades of future care rather than last year’s bills.
Reviewed and approved by Michael Cavaliere
How we handle these cases
What happens after you call.
The medical record comes first.
The call is free, with no obligation. We start with the medical record itself and what it actually shows.
The right specialist is retained.
We retain a board-certified physician in the relevant subspecialty to review the care, at our cost, before any decision to file.
The Certificate of Merit is filed.
If that review supports the claim, we have the reviewing physician's written statement in hand, and we file the certificate of merit with the court.
The damages case is built from the record.
We build it from what the past medical and earnings documents show, and from what the treating and reviewing physicians say the future care will require.
A careful review and a straight answer.
Or call a partner now at (267) 936-2233.
Common medical-malpractice questions.
How long do I have to file my own injury claim in Pennsylvania?
In Pennsylvania an action to recover damages for injuries to the person caused by the negligence of another must be commenced within two years. Generally the right to sue arises when the injury is inflicted. The discovery rule applies where the injured person, despite the exercise of reasonable diligence, is unable to know that he is injured and by what cause. Where it applies, the statute is tolled and does not begin to run until the injured party discovers, or reasonably should discover, that he has been injured and that another party's conduct caused it. As a general rule, if the injured person was an unemancipated minor when the claim accrued, the period of minority does not count, and after attaining majority that person has the same time to sue as the statute allows others. For this rule a minor is anyone who has not yet attained 18 years of age. We check these dates early, including whether any other rule moves them.
What is a Certificate of Merit?
In Pennsylvania, in any action based on an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, must file a certificate of merit. It must be filed with the complaint or within sixty days after the complaint is filed, and a separate certificate must be filed as to each licensed professional against whom a claim is asserted. It states one of three things: that an appropriate licensed professional has supplied a written statement that there is a reasonable probability the care fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; that the claim is based solely on allegations that other licensed professionals for whom the defendant is responsible deviated from an acceptable professional standard; or that expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim. On good cause shown the court shall extend that time for a period not to exceed sixty days, and a motion to extend, which has its own deadline under the rule, tolls the period until the court rules. In our office the reviewing physician's written statement is in hand before we file.
Can the hospital be responsible for a doctor it says was not its employee?
In some situations, yes. Under Pennsylvania law a hospital may be held vicariously liable for the acts of another health care provider through principles of ostensible agency only if the evidence shows that a reasonably prudent person in the patient's position would be justified in believing that the care in question was being rendered by the hospital or its agents, or that the care was advertised or otherwise represented to the patient as care being rendered by the hospital or its agents. Evidence that a physician holds staff privileges at a hospital is insufficient to establish this unless one of those two showings is made. We gather the consent forms, signage, and advertising a patient was given.
What if the hospital's records contradict what I remember?
We ask for the complete chart rather than a summary, and we read it against your account of what happened. Our office collects records from every provider involved, including imaging, nursing notes, orders, and billing records, and we look at the audit trail showing who entered what and when. Where the chart and your memory differ, we write down both versions, note the dates, and have a qualified reviewer read the record before we decide what the case is. We tell you what we find.
What does it cost to hire you?
We put the fee in writing before you sign anything and go through that agreement with you. No fee unless we win. We discuss costs at the start of every case.
