Many doctors refuse to agree to an out-of-court settlement with the innocent victim  — no matter how blatant or egregious the doctor’s negligence or carelessness may have been —  for fear that once the out-of-court settlement is reported to the national data bank, the doctors’  medical malpractice insurance rates will skyrocket. These doctors often choose, instead, to rely upon (1) the popular misconception that health care providers are infallible in this age of  medical, scientific and technological advancements; and (2)  the healthcare industry’s seemingly unlimited resources  — including access to other sympathetic colleagues and experts in the same medical field — to try to convince a jury that no mistake was made or that the problem is the patient’s fault.

Under such circumstances, your best ally is an experienced  and skillful trial attorney who can prove the  defendant’s medical or professional negligence, and recover the full measure of monetary damages to which you are entitled.

The term “malpractice” signifies a breach of duty owed by an individual rendering professional services to a person who has contracted for those services. In the context of medical malpractice, the duty owed by the doctor emanates from the physician-patient relationship.

An “objective” standard of care is applied by the courts in determining whether a physician has committed malpractice, namely, a physician must have the same knowledge and skill and use the same care normally used in the medical profession. A physician whose conduct falls below this standard of care is negligent.

Rule 702 of the Pennsylvania Rules of Evidence defines an “expert” as “a witness qualified . . . by knowledge, skill, experience, training or education” and permits such individual to testify in the form of an opinion or otherwise.

In order to prove medical malpractice or professional negligence, it is necessary for the injured plaintiff to establish at trial that the negligence was the “proximate cause” of the harm suffered. In a medical malpractice  or professional negligence case, this is done through the use of one or more expert witnesses who testify “to a reasonable degree of medical or professional certainty” that the defendant physician,  healthcare provider, or professional deviated from the standard of care, and this deviation was a proximate cause of the harm suffered.

In order to prove “proximate cause” in a medical malpractice or professional negligence case,  it is adequate that reasonable minds can conclude that the preponderance of the evidence shows that the defendant’s conduct was a substantial cause of the harm. It is not required that the plaintiff eliminate every possible explanation of the harm suffered by the injured patient.

In some medical malpractice cases, proximate cause can be established by showing that the physician’s or professional’s alleged negligence “increased the risk of harm” to the plaintiff. The question properly is left to the jury to decide whether the acts or omissions of the physician were the proximate cause of the injury once there is sufficient testimony to establish that (1) the physician failed to exercise reasonable care; (2) such failure increased the risk of harm to the plaintiff; and (3) such harm did in fact occur.  The increased risk of harm standard is especially relevant in cases involving harm suffered as a result of delayed diagnosis and treatment of cancer.

A limited exception to the prerequisite of expert testimony in medical malpractice cases is the doctrine of “res ipsa loquitur“ appearing in the Restatement (Second) of Torts §328D,  and refers to cases where the medical or professional negligence is so obvious that it “speaks for itself.”

An example would be a surgeon amputating the wrong limb of his patient.  Res ipsa loquitur reflects a common sense understanding that an inference of negligence may be raised without direct evidence of the negligent act if three conditions exist: (1) the injury must be of a type not ordinarily occurring absent negligence; (2) the defendant must have had exclusive control of the instrumentality effecting the injury; and (3) the plaintiff must not have contributed to the injury.

The doctrine of res ipsa loquitur allows plaintiffs, without direct evidence of the elements of negligence, to  present their case to the jury based on an inference of negligence. The key to the doctrine is that a sufficient fund of common knowledge exists within a jury of laypersons to justify raising the inference. Instead of directly proving the elements of ordinary negligence, the plaintiff provides evidence of facts and circumstances surrounding his injury that make the inference of the defendant’s negligence reasonable.

Rule 1042.3 of the Pennsylvania Rules of Civil Procedure requires the filing of a “Certificate of Merit” in any lawsuit based upon an allegation that a licensed professional deviated from an acceptable professional standard.  The term “licensed professional” includes:

Rule 1042.3  of the Pennsylvania Rules of Civil Procedure requires the attorney for the plaintiff, or the plaintiff if not represented, to  file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that either (1) 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, or (2) 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, or (3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.  A separate certificate of merit shall be filed as to each licensed professional against whom a claim is asserted.  The prothonotary, on praecipe of the defendant, may dismiss the plaintiff’s case and enter a judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time.

In the Commonwealth of Pennsylvania, the Medical Care Availability and Reduction of Error (MCARE) Act (40 Pa.C.S.A. §1303.504) imposes upon a physician, absent an emergency, the duty to obtain the  “informed consent” of the patient or the patient’s authorized representative prior to conducting the following procedures:

(1) Performing surgery, including the related administration of anesthesia;
(2) Administering radiation or chemotherapy;
(3) Administering a blood transfusion;
(4) Inserting a surgical device or appliance; and
(5) Administering an experimental medication, using an experimental device or using an approved medication or device in an experimental manner.

Consent is “informed” if the patient has been given a description of these procedures and the risks and alternatives that a reasonably prudent patient would require to make an informed decision as to that procedure. In cases involving the performance of surgery, the failure of the physician to first obtain the informed consent of the patient renders the unauthorized surgery an offensive touching or battery.

A physician is liable for failure to obtain the informed consent only if the patient proves that receiving such information would have been a substantial factor in the patient’s decision whether to undergo the above-described procedure. Also, a physician may be held liable for failure to seek a patient’s informed consent if the physician knowingly misrepresents to the patient his or her professional credentials, training or experience.

The informed consent doctrine applies only to physicians, and not to chiropractors under the MCARE Act. Also,  the MCARE Act imposes the duty to obtain a patient’s informed consent only upon the physician, and not the medical facility where the procedure is performed.  Therefore, as a matter of law, a medical facility cannot be held vicariously liable for the physician’s failure to obtain his patient’s informed consent prior to the performance of the above-described procedures.

The Medical Care Availability and Reduction of Error (MCARE) Act,  40 Pa.C.S.A. §1303.512, imposes specific and  strict requirements  upon the qualifications of expert witnesses testifying in medical malpractice actions against other physicians. An expert testifying as to a physician’s standard of care generally must meet three statutory requirements:

1) 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;
(2) Practice 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; and
(3) Be board certified by the same or a similar approved board as the defendant physician. The MCARE Act applies only to medical professional liability lawsuits against physicians, and not to lawsuits against other licensed professionals  or to actions against non-physician health care providers.

A two-year statute of limitations applies to medical malpractice suits pursuant to 42 Pa.C.S.A. §5524(2), with two exceptions:

(1) the “discovery rule,” which under limited circumstances tolls the statute of limitations until the injured party discovers or reasonably should discover that he or she has been injured and the injury has been caused by another’s conduct;
(2) the doctrine of “fraudulent concealment,” which provides that the defendant-professional 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. Under such circumstances the statute of limitations begins to run when the injured party knows or reasonably should know of his injury and its cause.

The MCARE Act, 40 Pa.C.S.A. §1303.513 (effective March 20, 2002)  is a “statute of repose” that  imposes additional time limitations on commencing a medical malpractice lawsuit. The general rule is that  no cause of action asserting a medical professional liability claim may be commenced after seven years from the date of the alleged tort or breach of contract, with two exceptions:

(1)  If the injury is or was caused by a foreign object unintentionally left in the individual’s body, the 7-year time limitation  shall not apply;
(2) 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 or after the minor attains the age of 20 years, whichever is later. In the case of death or survival actions, the action must be commenced within two years after the death in the absence of affirmative misrepresentation or fraudulent concealment of the cause of death.

Liability may be imposed upon hospitals, HMOs or physicians pursuant to the legal theories of (1) Actual Agency; (2) Ostensible Agency; or (3) Corporate Liability:

ACTUAL AGENCY: Hospitals are liable under the theory of respondeat superior for the negligent acts and/or omissions of their non-physician medical staff members, such as nurses, technicians, and attendants. Estate of Denmark v. Williams, 117 A.3d 300, 306-307 (Pa.Super. 2015).

OSTENSIBLE AGENCY: Pursuant to the Restatement (Second) of Torts §429, one who employs an independent contractor to perform services that are accepted by a patient with a reasonable belief that these services are being rendered by the employer is subject to liability for physical harm caused by the negligence of the independent contractor in supplying those services. Capan v. Divine Providence Hospital, 430 A.2d 647, 648 (Pa.Super. 1980)  In order to prove the liability of a health care provider under the theory of ostensible agency, two prerequisites must be established: (a) the patient must look to the principal rather than the agent for medical care; and (b) the principal must hold out the agent as his employee.  The theory of ostensible agency has been applied to hospitals, HMOs, and physicians conducting in-office procedures with the services of an independent contractor-nurse.

CORPORATE LIABILITY: The theory of “corporate liability” creates a nondelegable duty — namely, to ensure the patient’s safety and well-being while in its facility — which hospitals, HMOs, medical professional corporations, and nursing homes owe directly to a patient. The duties owed to patients by institutions subject to corporate liability include: (a) the duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (b)the duty to select and retain only competent physicians; (c) the duty to oversee all persons who practice medicine within its walls as to patient care; and (d) the duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for its patients.  K.H. v. Kumar, 122 .3D 1080, 1108 (Pa.Super. 2015). The injured party does not have to prove the negligence of a third-party when suing under a theory of corporate negligence. In order to make out a claim of corporate negligence, the injured party must prove that: (1) the corporate entity deviated from the standard of care; (2) the corporate entity had actual or constructive knowledge of the defect or procedures which created the harm; and (3) the alleged negligence was a substantial factor in bringing about the harm to the injured party. Thompson v. Nason Hospital, 591 A.2d 703, 708 (Pa. 1991).  The theory of corporate liability, however, is not applicable to a physician’s outpatient office, and cannot be applied to medical facilities owned by the Commonwealth of Pennsylvania as a result of the doctrine of sovereign immunity.

The MCARE Act, 40 Pa.C.S.A. §1303.505 provides that “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. In assessing punitive damages, the trier of fact can properly consider the character of the health care provider’s act, the nature and extent of the harm to the patient that the health care provider caused or intended to cause and the wealth of the health care provider. A showing of gross negligence is insufficient to support an award of punitive damages.  Punitive damages shall not be awarded against a health care provider who is only vicariously liable for the actions of its agent that caused the injury unless it can be shown by a preponderance of the evidence that the party knew of and allowed the conduct by its agent that resulted in the award of punitive damages.  Except in cases alleging intentional misconduct, punitive damages against an individual physician shall not exceed 200% of the compensatory damages awarded. Punitive damages, when awarded, shall not be less than $100,000 unless a lower verdict amount is returned by the trier of fact.