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What Are the Requirements for a Medical Malpractice Lawsuit?

 

 

What are the requirements for a medical malpractice lawsuit?

Medical malpractice claim requirements can be extremely difficult for a layperson to comprehend. That is why it will be so important to speak with an experienced attorney if you have suffered harm due to the failure of a medical professional responsible for your care to properly perform their duties.


Table of Contents

The Basics

Common Errors That Lead to Medical Malpractice

Statute of Limitations in Pennsylvania

Requirements for Expert Testimony

What If I Am Partially to Blame? Can I Still Bring a Medical Malpractice Lawsuit?

Talk to an Attorney at KBG Injury Law About Medical Malpractice Claim Requirements


The Basics

In Pennsylvania, an injured patient can bring a medical malpractice lawsuit against any licensed medical provider including a doctor, a nurse, a mental health care professional or physical therapist or any institution which falls under the definition of healthcare professional, such as a hospital, a birthing center or a nursing home.

While the basic requirements for a medical malpractice claim vary from state to state, there are four basic elements you need to prove to show that malpractice has occurred:

1. You had a doctor-patient relationship with a physician.

You must first prove that you and your doctor had a patient-doctor relationship — you hired the doctor, and the doctor agreed to treat you. This might seem straightforward, but there can be instances where someone might want to sue a consulting physician who did not provide direct treatment.

You cannot sue a doctor who you overheard recommending a treatment at a Christmas party nor can you sue a doctor who is not your regular physician if you bumped into them on the street, and they offered medical advice on your condition.

If you have been visiting your doctor regularly and they have been treating you consistently, it is not difficult to prove a relationship existed.

2. The physician or medical provider breached a duty of care owed to the patient.

Negligence by the physician or medical provider is one of the most basic malpractice claim requirements.

This is another one of the most basic malpractice claim requirements, but it can be difficult to prove. You cannot merely claim that you were not happy with the results of the treatment you received or that you were not satisfied with the way that treatment was provided. You have to prove the doctor caused you harm in a way a competent medical professional would not have harmed you.

The care provided to you by your physician is not required to be the very best possible care but only needs to be considered “reasonably skillful and careful.”

In Pennsylvania, you are required to submit a Certificate of Merit from a medical expert familiar with the same kind of medical advice or treatment you are receiving from your regular physician within 60 days of when you file a malpractice lawsuit. This certificate must offer proof that you have reason to make a claim. This expert does not have to be the same expert who later testifies at a trial if your malpractice lawsuit goes to court.

3. The physician’s breach of care was the cause of your injury.

Again, this can be a challenging point prove. Doctors often treat patients who are already sick or injured before the alleged malpractice occurred. The question then becomes whether the doctor’s actions were negligent and if that negligence led to the patient’s injuries.

For example, if a patient had brain cancer, and the medical provider did something negligent, but the patient died, it can be difficult to prove that it was the negligence on the part of the medical provider that killed patient rather than cancer.

If you are considering a medical malpractice lawsuit, you need to show a judge or a jury that it was “more likely than not” that the physician’s negligence was responsible for your injury. This is why it is necessary to have a medical expert testify about the doctor’s negligence.

The injury suffered as a result of this negligence resulted in specific damages to the patient.

4. The injury suffered as a result of this breach resulted in specific damages to the patient.

Even if the doctor did not meet the standard of care, you cannot sue for medical malpractice if you do not suffer any injury or harm as a result of this negligence. Normally harmed suffered from medical malpractice falls two categories:

  • Non-economic damages: Physical pain, suffering, disability, disfigurement, emotional anguish, loss of quality of life, distress, etc.
  • Economic damages: Medical expenses, future costs of medical expenses, lost wages, lost benefits/earning potential, household accommodations resulting from the injury, etc.

Common Errors That Lead to Medical Malpractice

Common errors that lead to medical malpractice [list]

Most people are familiar with medical malpractice lawsuits that result from a doctor operating on the wrong patient or leaving a sponge or an instrument inside the patient after surgery. But medical malpractice lawsuits usually fall into one of three categories:

  • Diagnostic failures: If the doctor misdiagnoses a patient’s illness or fails to discover the patient’s true maladies and making a different diagnosis would have led to a better result for the patient, is very likely that a patient injured as a result of this misdiagnosis would be able to make a medical malpractice claim.
  • The wrong treatment: If the physician treats their patient in a manner or with medications that no other competent doctor would have used in the same situation, a medical malpractice lawsuit is a possibility. Also, medical malpractice is possible if the doctor knows the correct treatment but then neglects to administer it correctly.
  • Failure to inform the patient of any known risks to the treatment: It is part of a doctor’s duty to properly inform patients about any known risks involved with any treatment or procedure. It is known as the duty of informed consent. If the doctor fails to inform the patient of a known risk – for instance, neglecting to notify the patient of any possible dangerous allergic reactions to a drug that may be used during treatment – and the treatment injures the patient, the doctor could be liable for medical malpractice.

Other examples may include: failing to refer the patient to a specialist, failing to order tests, misinterpreting lab results, failing to ask the patient about past or current medications, giving the patient wrong medications, failing to properly sanitize medical equipment, leaving objects within a patient during surgery, etc.

Statute of Limitations in Pennsylvania

Pennsylvania law limits the amount of time that a patient who believes they have been injured as a result of medical bill practice has to file a lawsuit. That patient has two years after the patient discovers or should have discovered that they were injured as a result of the medical malpractice.

  • While the patient has to file a lawsuit within two years of discovering that they were injured as a result of a doctor’s negligence, they have up to seven years to bring that claim. So for example, if a doctor’s negligence resulted in an injury that did not manifest itself until the third year after the patient completed the course of treatment, and the patient only discovered this injury in that third year, they then have two years from that point to file the lawsuit. If they do not discover the injury until after the seventh year, it is unlikely they will be able to file a lawsuit. This is known as the “statute of repose.”
  • In the case of a death caused by medical malpractice, a representative of the deceased’s estate acting on behalf of the beneficiaries must file a lawsuit within two years of the date of the patient’s death.
  • If a person was injured as a result of medical malpractice when they were a child, they have seven years after their 20th birthday to file a lawsuit, regardless of when the actual injury occurred. So if they were injured when they were 9 as a result of medical malpractice, they would have until they were 27 to file a suit.

Requirements for Expert Testimony

During the 1970s and ’80s, an explosion in the number of medical malpractice lawsuits filed against physicians left the medical profession reeling. Unfortunately, many of these lawsuits were frivolous in nature. As a result, Pennsylvania lawmakers legislated several essential changes in the way medical malpractice lawsuits can be brought forward. This is especially true in the area of expert testimony.

PA lawmakers legislated several essential changes in the way medical malpractice lawsuits can be brought forward.

One of those changes was the introduction of the affidavit of merit requirement. This change required that a plaintiff or their attorney file a Certificate of Merit – or a sworn affidavit – within 60 days of filing a medical malpractice claim. The plaintiff’s attorney must sign this certificate, and it needs to state that the expert chosen by the attorney can provide a written statement to support the plaintiff’s claim.

This statement needs to assert:

  • That a reasonable probability exists that the doctor breached the normal standard of care.
  • That the defendant is responsible for the individual who breached the standard of care.
  • That the claim is of such a nature that no expert testimony is needed to pursue it.

The defendant can also file a counterclaim against the plaintiff which basically says that the lawsuit is frivolous and without merit. But they must also file a Certificate of Merit using a medical expert who will testify to this fact. It is not so much that the doctor is filing a medical malpractice lawsuit against you, but if they can prove that your lawsuit is frivolous and without merit, they may be able to convince the jury or the judge to force you to pay court costs.

When the case goes to trial, Pennsylvania law states that any witness testimony given by a medical expert needs to establish the appropriate standard of care and needs to show that the defendant had breached the standard. The exception is if “negligence is obvious to a layperson,” such as leaving an instrument inside the patient after surgery.

Any expert used by either the plaintiff or the defendant needs to fulfill certain requirements:

  • They must be a physician who is currently practicing or teaching or who has experience in the field of medicine that is at the heart of the medical malpractice claim.
  • Their specialty must be the same or similar to the defendant’s specialty.
  • They must be board-certified, if the field of medicine at issue requires a position to be board-certified or if the defendant is board-certified.

What If I Am Partially to Blame? Can I Still Bring a Medical Malpractice Lawsuit?

Pennsylvania is one of 32 states that recognizes a modified comparative fault doctrine. Under this doctrine, a court may assign a percentage of blame to both parties in a lawsuit, and if you receive a damage award, your award can be reduced in proportion to your share of the blame.

Pennsylvania is one of 22 states that use a 51 percent rule. Under this rule, you can only recover damages if it can be shown that you are less than 50 percent responsible for your injury. So if you sue a healthcare provider under a medical malpractice claim, you need to be able to show that you were less than 50 percent responsible for your injury, which is not unreasonable in most cases.

Caps Placed on Awards for Damages in Medical Malpractice Lawsuits

A final word on damage caps and medical malpractice claims.

Pennsylvania does have a cap, but it is a particular one. The state does not limit awards for general (non-economic) or specific (economic) damages. The only cap is placed on punitive damages. These are the damages that result from particularly egregious, outrageous or dangerous behavior by the physician. In most cases, these damages are capped at twice the amount of the economic and non-economic damages awarded in the case.

Talk to an Attorney at KBG Injury Law About Medical Malpractice Claim Requirements

Talk to an attorney at KBG Injury Law about medical malpractice claim requirements.

If you are planning to sue a medical professional for negligence, you have to make sure your case is backed by solid evidence. At KBG Injury Law, we have a great deal of experience in this area of the law, and we are very familiar with the requirements for a medical malpractice lawsuit.

If you would like to learn more about how we may be able to help you, please call us at 1-800-509-1011 or visit our contact us page where you can leave us your contact information, request a free consultation and tell us a bit about your situation. A member of our team will get back to you as soon as possible.