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According to studies, thousands of people in the U.S. die every year due to medical error or malpractice. Harvard University studies show that more than 1 million people suffer injury each year as a result of mistakes caused by doctors, anesthesiologists, residents, nurses, technicians and faulty medical devices. Most victims never know their injury was due to medical malpractice and therefore, never sue the liable doctor or member of the medical staff that treated them.
One of the most common instances of medical malpractice is when people contract infections while hospitalized. A survey of Pennsylvania hospitals showed 19,154 patients were infected in a PA hospital in 2005 and that 2,478 of those people died. Errors in prescribing medication also claim one life a day across America. A Medical Malpractice lawyer at our firm can assist you if you or a loved one has been the victim of medical malpractice. 215-469-3307
Many people are under the impression that if something goes wrong during a medical procedure, it's easy to get a lawyer and sue your doctor or the hospital for mega bucks. But a medical malpractice lawsuit, generally speaking, is, in fact, an extremely tough lawsuit to win. You need to consider three factors to decide if your case is worth pursuing: liability, damages and who would pay the damages.
To determine if someone is "liable" - or legally responsible, for your injury, you need to figure out if a health care provider was negligent and if so, whether that negligence caused your injury. Just because your operation turned out poorly does not necessarily mean that a doctor was negligent during the operation. The key factors in determining negligence are 1. the accepted standard of care, 2. whether that standard was followed and, if not, 3. whether not following the standard caused the injury.
Negligence can occur at various stages. A health care provider may misdiagnose a problem, or fail to treat the injury or illness correctly or prescribe the wrong medication. A doctor can also be held liable for failing to adequately inform a patient about the risks of a procedure or about alternative treatments.
It is important to note: even if you can prove that a doctor was negligent, you will not have a malpractice case unless you can document that the negligence, in fact, caused your injury or worsened your condition. For example, in a case involving the misdiagnosis of a cancerous tumor that caused a patient's death, the health care provider would most likely argue that the tumor would be terminal to the patient and that nothing could have been done.
If you establish liability you are entitled to damages, which can include compensation for medical bills, lost wages and pain and suffering. The damages may cover losses you've already suffered as well as future medical bills and lost wages due to the malpractice injury.
Damages vary over a large spectrum depending on each person's specific situation - even two 40 year old women who both lose their left middle fingers through botched surgical procedures may see very different results. The amount of damages you can expect to receive depends on how the injury affects your future earning potential and quality of life. So a professional guitarist or an avid piano player may get more for a missing finger than an accountant or unemployed couch potato whose lives will not be as disrupted. A good trial lawyer can estimate the potential damage awards based on such factors.
It is important to note: damages must be substantial for lawyers to take on a malpractice case. Expenses in a medical malpractice lawsuit are huge and extremely involved – it is not unusual for a lawyer to dole out around $50,000 before the case is resolved. Many medical malpractice cases require two or three doctors to serve as expert witnesses to support the injured patient's case. These doctors may charge $1,500 or more per hour to review records or answer an attorneys' questions.
Pennsylvania Medical Malpractice Law does not impose a cap on compensatory damages, but it does have a program of state-sponsored excess insurance. If punitive damages are awarded in a medical malpractice cases arising on or after March 20, 2002, 25 percent must be paid into the MCARE Fund rather than to the prevailing party. Pa. Stat. Ann. tit. 40, § 1303.505(e) (Westlaw 2007). Punitive damages against a physician cannot exceed 200 percent of compensatory damages absent intentional misconduct. Pa. Stat. Ann. tit. 40, § 1303.505(d) (Westlaw 2007).
Pennsylvania Medical malpractice actions are actions for injury or wrongful death which must be brought within two years. 42 Pa. Cons. Stat. § 5524(2) (Westlaw 2007). Pennsylvania courts have a discovery rule for injuries. The statute does not begin to run until the injured party discovers or reasonably should discover that he has been injured by another's conduct according to Fine v. Checcio, 870 A.2d 850 (Pa. 2005). This rule does not apply in death cases according to the court’s ruling in Pastierik v. Duquesne Light Co., 526 A.2d 323 (Pa. 1987). Neither insanity nor imprisonment extends the statutes of limitations period, but the statute does not begin to run against minors until they reach the age of eighteen. 42 Pa. Cons. Stat. § 5533 (Westlaw 2007).
In order to prevail, a plaintiff must provide expert testimony that defendants deviated from the standard of care and that such deviation was the proximate cause of injury. Mitzelfelt v. Kamrin, 584 A.2d 888, 892 (Pa. 1990). The only exception is "where the matter … is so simple, and the lack of skill or want of care so obvious, as to be within the experience and comprehension of even nonprofessional persons." Chandler v. Cook, 265 A.2d 794, 796 (Pa. 1970).
Strict standards regulating the competency of medical experts went into effect May 19, 2002. Generally an expert must be actively engaged in clinical practice or teaching (or retired less than five years). To testify as to whether a physician met the standard of care, the expert must practice in the same or a similar specialty, and must be board-certified if the defendant is. Pa. Stat. Ann. tit. 40, § 1303.512 (Westlaw 2007). Courts have some leeway to waive these requirements if offered other evidence of an expert witness's adequate training, experience, and knowledge. Id.
In actions commenced on or after January 27, 2003, a plaintiff suing licensed professionals must file as to each of them a certificate of merit within 60 days of the complaint certifying that a qualified expert has supplied a written statement that there exists a reasonable probability that the defendant's care fell outside acceptable professional standards and that such conduct was a cause of injury. Alternatively, the certificate may state that expert testimony is unnecessary to prove the claim, but in that case the court should not allow such testimony later. Pa. R. Civ. P. 1042.3 (Westlaw 2007).
If you or a loved one have been the injury victim of medical negligence or malpractice, please do not hesitate to contact a lawyer and tell us your story. You have rights as a patient to proper professional treatment and we are here to defend those rights.
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