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Attorney’s Summary of Pertinent Pennsylvania Law for Medical Malpractice Actions

A. Statute of Limitations:

Medical malpractice actions are actions for injury to the person or wrongful death, which must be brought within two years. 42 Pa. Cons. Stat. § 5524(2) (LEXIS 2003). Pennsylvania courts have adopted a discovery rule for injuries to the person. When the existence of an injury is not known to the claimant, and such knowledge cannot be reasonably ascertained within the two-year period, the statute does not begin to run until the discovery of the injury is reasonably possible. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 608 A.2d 1040 (1992). The discovery rule does not apply in death cases, however. Pastierik v. Duquesne Light Co., 514 Pa. 517, 526 A.2d 323 (1987). For medical malpractice cases arising on or after March 20, 2002, the discovery rule is limited by a seven-year statute of repose that runs from the date of the act (two years for death cases)

B. Modified Rule of Comparative Negligence:

Pennsylvania has adopted a modified rule of comparative negligence. A plaintiff’s recovery is barred only if his contributory negligence is greater than the causal negligence of the defendants against whom recovery is sought. 42 Pa. Cons. Stat. § 7102(a) (LEXIS 2003). Otherwise, the plaintiff’s damages are diminished in proportion to the amount of negligence attributable to him. Id.

C. Statutory Caps:
Pennsylvania does not impose a cap on compensatory damages, but it does have a program of state-sponsored excess insurance. See Patient Compensation Funds and Physician Insurance. Effective January 25, 1997, punitive damages against individual physicians shall not exceed 200 percent of compensatory damages, except in cases of intentional misconduct. Pa. Stat. Ann. tit. 40, § 1303.505(d) (LEXIS 2003); Pa. Stat. Ann. tit. 40 § 1301.812-A(g) (LEXIS archives) (repealed 2002). Under current law, 25 percent of punitive damages in medical malpractice cases must be paid into the MCARE Fund rather than to the prevailing party. Pa. Stat. Ann. tit. 40, § 1303.505(e) (LEXIS 2003).

D. No Statutory Cap on Attorneys Fees:

The Pennsylvania Supreme Court has held that former Pa. Stat. Ann. tit. 40, § 1301.604 (LEXIS archives) (repealed 1996), which purported to limit contingency fees recoverable in medical malpractice actions, is unconstitutional. Heller v. Frankston, 504 Pa. 528, 475 A.2d 1291 (1984).

E. Collateral Source Rule Modified:

The collateral source rule has been substantially modified for medical malpractice cases arising on or after March 20, 2002. A plaintiff cannot recover for past medical expenses or past lost earnings that were covered by any public or private benefit received prior to trial. Pa. Stat. Ann. tit. 40, § 1303.508 (LEXIS 2003). However, this does not apply to life insurance, pension or profit-sharing plans, social security benefits, or benefits for which the state or federal government has a right of reimbursement from the recovery. Id.

For further information, please contact Andrew G. Slutkin.