Doctors are some of the most important members of our community. The standard of healthcare in America is one of the highest in the world. One of the reasons for the excellence of that standard is how good our doctors are.
Even doctors, however, are human. That means they make mistakes. Unfortunately, when a doctor makes a mistake, it can have serious consequences. Patients injured by a doctor’s errors have a recourse. They can sue the doctor for medical malpractice.
It’s important to note a patient injured by a doctor’s medical malpractice does not have an unlimited amount of time in which to file a medical malpractice lawsuit. Pennsylvania, like most states, has a statute of limitations which defines how long a patient has to initiate an action against a doctor, hospital or any healthcare professional.
A medical malpractice statute of limitations is simply the amount of time you have to file a lawsuit if you have been harmed by a medical professional. It is essential to file your lawsuit before the statute of limitations expires. Otherwise, your suit could be thrown out of court. In Pennsylvania, the statute of limitations is two years from the date the alleged malpractice occurred.
Pennsylvania’s statute of limitations has several important exceptions, as well as statutory rules that standardize the way a medical malpractice lawsuit needs to be filed.
Table of Contents
What Is a “Certificate (or Affidavit) of Merit” and What Is Its Relationship to a Medical Malpractice Lawsuit?
What Is the Statute of Limitations in Pennsylvania?
In Pennsylvania, the timeframe in which you must file a medical malpractice lawsuit is two years. You have two years to file a medical malpractice lawsuit if you know or reasonably should have known:
- That you had been injured.
- That the doctor’s actions were responsible for the injury.
You also must be able to establish a connection between the doctor’s actions and the injury. If you believe you have been injured by a doctor’s actions, you should immediately contact an experienced personal injury lawyer.
What Is a “Certificate (or Affidavit) of Merit” and What Is Its Relationship to a Medical Malpractice Lawsuit?
In Pennsylvania, in order for the plaintiff to file a malpractice lawsuit against a physician or hospital, they need to sign and file a “certificate of merit”. A certificate of merit presents expert medical testimony that establishes a medical standard of care and how the defendant (the doctor) failed to observe it. A certificate of merit is not needed if the act of negligence is “obvious to a layperson.”
Basically, the certificate states that another physician, normally one who works in the same field as the defendant, has examined the plaintiff’s claim and believes that there’s a good chance that the defendant did not exercise the appropriate standard of care which resulted in the plaintiff’s injury.
The certificate of merit needs to be filed within 60 days of the plaintiff filing a lawsuit. The doctor being sued also needs to file a certificate of merit, which states that they did follow the standard of care and are not responsible for the plaintiff’s injury.
When the case goes to trial, Pennsylvania law requires that testimony be presented that establishes the appropriate standard of care and shows that the defendant did not meet it. An expert medical witness must give this testimony. This medical witness does not have to be the same person who signed the certificate of merit, but they must be:
- A doctor with knowledge of the field at issue and who is currently practicing medicine or teaching it.
- They must practice in the same field as the defendant or in a similar specialty.
- The expert witness needs to be board-certified if the defendant is board-certified and if board certification was an option.
If the plaintiff and the lawyer can show that their medical expert has experience, appropriate training or has gathered enough knowledge from practicing or teaching medicine within five years of when the alleged injury occurred, the above requirements can be waived by the court.
What Is the Discovery Rule?
Although Pennsylvania law limits the amount of time in which you can file a medical malpractice lawsuit to two years, there are some exceptions. The first exception is known as the discovery rule.
The discovery rule works this way. Let’s say you had surgery in 2014. At first, it appeared that the surgery was completed without any problems. Two or three years later, however, you begin to feel a great deal of discomfort. You go to see your regular doctor who orders an x-ray. The x-ray reveals that the doctor who performed the surgery left a medical instrument inside your body.
In this case, the two-year limit to file a lawsuit begins as soon as you discover the instrument was left behind. This is true even if in this discovery occurred after the two-year anniversary of the original surgery had passed.
Even with the discovery rule, however, there are some limitations. Taking the example above, let’s suppose you saw your doctor, and you didn’t get an x-ray right away. You wanted a second opinion. So you saw another doctor who also felt that something was wrong and you should get an x-ray. Perhaps you wanted to be especially sure, and you saw a third doctor who told you the same thing.
Under the discovery rule, when the second doctor informed you that you might have had a problem, you should have reasonably known that something was wrong. This is when the two-year time limit will begin. It will not begin after you saw the third doctor and finally had an x-ray.
The effective date of the discovery rule starts when you should’ve reasonably known (or a court decides you should’ve reasonably known) that you had suffered an injury during the original surgery.
What Is Pennsylvania’s Minors Tolling Statute?
Another exception to Pennsylvania’s statute of limitations is the way that it affects minors. If a child suffers an injury caused by medical malpractice, Pennsylvania’s regular statute of limitations does not start to run until the child turns 18. So if a child is affected by medical malpractice when they are 16 but don’t discover it until they are 19, then the age limit for filing medical malpractice for them is 21.
Both the discovery rule and the minors tolling statute are affected by what is known as the statute of repose.
What Is the Statute of Repose?
In 2002, the Pennsylvania legislature passed a law creating the Medical Care Availability and Reduction of Error Fund (MCARE). It required participating providers and hospitals in the state’s medical insurance fund to carry a minimum of $500,000 in insurance per occurrence or claim. It also created a special state fund to ensure that people who were injured by medical malpractice receive fair compensation if a doctor had trouble paying an award.
It also authorized, however, the rule that no medical malpractice lawsuit could begin after seven years from when the original medical malpractice occurred. This is known as the statute of repose.
Let’s say that you were a victim of medical malpractice in 2012, but you were not aware of it. You would only have until 2019 to launch a medical malpractice lawsuit regardless of whether you were aware that you had been a victim of medical malpractice. In other words, if you did not discover the medical malpractice until 2020, you would not be able to launch a medical malpractice lawsuit.
Even if you discovered the medical malpractice in 2018, you would only have until 2019 to launch a lawsuit because 2019 would be the seventh year since the malpractice occurred.
Are There Any Exceptions to the Statute of Repose?
As with the statute of limitations, there are some exceptions to the statute of repose.
1. Foreign Object
If a foreign object is accidentally left in a patient’s body (a sponge, a scalpel, forceps, etc.), the statute of repose is effectively tolled. So if a patient had an operation in 2010 and did not discover that a foreign object had been left behind during that surgery until 2019, they would still have two years to file a medical malpractice lawsuit.
If a minor is affected by medical malpractice, the MCARE legislation that created the statute reads “No cause of action asserting a medical professional liability claim may be commenced by or on behalf of a minor after seven years from the date of the alleged tort or breach of contract (when the malpractice occurred) or after the minor attains the age of 20 years, whichever is later.”
To state it plainly, if the child was nine years old when they were injured by medical malpractice, they would have until they were 20 to bring a lawsuit. In this case, they would turn 20 after the seven years dictated by the statute of repose had passed.
If, however, the minor was 16 years old when the medical malpractice occurred, they would have until they were 23 to file a medical malpractice lawsuit because the seven-year statute of repose would not elapse until after they turned 20.
3. Wrongful Death
The last exception to the statute of repose concerns wrongful death or survival action. In most cases, a survival action about medical malpractice resulting in death must be brought within two years of an individual’s death. The two-year limit does not apply, however, when there has been fraudulent concealment or affirmative misrepresentation of the medical malpractice.
Another interesting twist to the statute of repose occurred in 2018. The Pennsylvania Superior Court ruled that, under the statute of repose, an individual has two years to launch a survival action based on medical malpractice even if the medical malpractice did not lead directly to the death of the individual.
If you think this may have happened to a loved one, you should speak immediately to an experienced personal injury lawyer.
Are There Damage Caps for Medical Malpractice in Pennsylvania?
Unlike many other states which limit the amount of compensation an individual injured by medical malpractice can be awarded, Pennsylvania has no limits on economic or noneconomic damages.
The court or jury can award economic damages to cover items like lost wages and medical costs. A court or jury awards noneconomic damages for pain and suffering, loss of companionship and several other intangible damages.
Only awards given as “punitive damages” have a cap in Pennsylvania. Punitive damages are awarded for egregious or outrageous behavior on the part of the doctor found liable for medical malpractice. For instance, if a doctor deliberately ignores a potential health problem, they may be liable for punitive damages. In Pennsylvania, punitive damages are capped at two times the amount of damages awarded for economic and noneconomic reasons.
Punitive damages are rarely awarded since medical malpractice is most often committed by mistake. Also, 25% of any award for punitive damages is given to the MCARE fund mentioned above to compensate individuals who are victims of medical malpractice but whose doctors may not have enough insurance coverage.
What Are Periodic Payments?
One final wrinkle you should know about is that Pennsylvania follows a rule of “periodic payments.” Whenever damages awarded in a medical malpractice suit are more than $100,000 for” future damages,” these damages will be paid in installments. Future damages cover items like lost wages, medical bills or any other expense that the injured person will incur in the future because of a disability or ongoing medical treatment caused by the medical malpractice.
Periodic payments will happen automatically in any case involving damages of more than $100,000 but only if the plaintiff does not object. If the plaintiff objects, other payment options will be considered.
The Importance of Complying With the Medical Malpractice Statute of Limitations
Timing is of the essence if you are considering taking legal action in the form of a medical malpractice lawsuit. Your attorney must first file your initial complaint in civil court and then sign and file a “certificate of merit.”
To be on the safe side and ensure your lawsuit is filed in a timely manner, talk to an attorney if you have any reason to believe you have been harmed due to medical malpractice. If you fail to do so and the medical malpractice statute of limitations runs out, the defendant will move to have your lawsuit dismissed — and the court will likely grant that request.
Please do not risk that happening to you. At KBG Injury Law, we have experienced attorneys who can help you with your medical malpractice lawsuit. Get in touch with KBG Injury Law as soon as you can by calling 717-848-3838 or contact us online.