Statutes 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. Ann. § 5524 (West Supp. 1997). 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 limitations period will not begin to run until the discovery of the injury is reasonably possible. Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959); Citsay v. Reich, 380 Pa. Super. 366, 551 A.2d 1096 (1988). The discovery rule is inapplicable in death cases, however. Pastierik v. Duquesne Light Co., 514 Pa. 517, 526 A.2d 323 (1987).

A claimant's insanity or imprisonment will not toll the limitations period. If the claimant is an unemancipated minor at the time the cause of action accrues, he may bring the action within two years after he reaches the age of eighteen. 42 Pa. Cons. Stat. Ann. § 5533 (West Supp. 1997).

Contributory or Comparative Negligence

Pennsylvania has adopted the modified doctrine of comparative negligence. A claimant is barred from recovery only if his contributory negligence was greater than the causal negligence of the defendants against whom recovery is sought. 42 Pa. Cons. Stat. Ann. § 7102 (West 1982 & Supp. 1997). Otherwise, the claimant's damages are diminished in proportion to the amount of negligence attributed to the claimant. Id.

Joint and Several Liability

Pennsylvania recognizes the doctrine of joint and several liability. Thus, a claimant may recover the full amount of the allowed recovery from any joint tortfeasor against whom recovery is not barred. 42 Pa. Cons. Stat. Ann. § 7102 (West 1982 & Supp. 1997).

Contribution

The right of contribution exists among joint tortfeasors. 42 Pa. Cons. Stat. Ann. § 8324 (West 1982). Contribution may be sought in either the principal action or a subsequent action. McMeekin v. Harry M. Stevens, Inc., 365 Pa. Super. 580, 530 A.2d 462 (1987), cert. denied, 518 Pa. 618, 541 A.2d 746 (1988). Joint tortfeasors' liability to one another in contribution is determined by reference to their relative degrees of fault. 42 Pa. Cons. Stat. Ann. § 7102 (West 1982 & Supp. 1997).

Vicarious Liability

In Pennsylvania, as a general rule, a hospital is not liable for the negligence of an independently-contracted physician. Simmons v. St. Clair Memorial Hospital, 332 Pa. Super. 444, 481 A.2d 870 (1984). But, under the ostensible agency theory, a physician who holds independent contractor status with respect to a hospital may be found to be an agent of the hospital for purposes of imposing liability on the hospital. Id. Two factors are relevant to a finding of ostensible agency: (a) whether the patient looks to the institution, rather than the individual physician, for care, and (b) whether the hospital "holds out" the physician as its employee. Id. Effective January 25, 1997, a hospital is not vicariously liable for punitive damages unless it knew of and allowed the conduct by its agent that resulted in punitive damages. 40 Pa. Cons. Stat. Ann. § 1301.812-A(c) (West Supp. 1997).

Expert Testimony

The general rule in Pennsylvania medical malpractice cases is that to establish the applicable standard of care, expert testimony is required. Brophy v. Brizuela, 358 Pa. Super. 400, 517 A.2d 1293 (1986). An exception to the general rule applies "where the matter is so simple, and the lack of skill or want of care is so obvious, as to be within the comprehension of non-professional persons." Id. at 405, 517 A.2d at 1296. New legislation provides that effective January 25, 1997, an attorney's signature on a complaint against a health care provider certifies that the attorney has a report from a qualified expert, based on information available after reasonable investigation, stating that in the expert's opinion there is a basis to conclude that the provider deviated from the standard of care. The statute contains exceptions for cases in which no expert opinion is necessary and for cases where the expert says he cannot provide an opinion without discovery. 40 Pa. Cons. Stat. Ann. § 1301.821-A (West Supp. 1997). However, the affidavit requirement has been "suspended" by the Pennsylvania Supreme Court on the ground that it is inconsistent with the court's constitutional authority to prescribe rules governing the courts. 27 Pa. Bull. 581 (Feb. 1, 1997).

Damage Caps

Generally, Pennsylvania does not impose a cap on compensatory damages. However, members of the Medical Professional Liability Catastrophe Loss Fund are, in effect, subject to limited liability because of state-sponsored excess insurance. See Patient Compensation Funds and Physician Insurance for a discussion of this issue.

Effective January 25, 1997, punitive damages against individual physicians shall not exceed 200 percent of compensatory damages, but shall not be less than $100,000 unless a lower verdict for compensatory damages is returned by the trier of fact. 40 Pa. Cons. Stat. Ann. § 1301.812-A(g) (West Supp. 1997).

Statutory Cap on Attorneys' Fees

The Pennsylvania Supreme Court has held that former 40 Pa. Cons. Stat. Ann. § 1301.604 (West 1992) (repealed 1996), which purported to limit the contingency fee recoverable in a medical malpractice action, is unconstitutional. Heller v. Frankston, 504 Pa. 528, 475 A.2d 1291 (1984).

Periodic Payments

Pennsylvania law does not mandate the periodic payment of medical malpractice judgments, but beginning in 1997 it allows the court upon motion to consider a judgment that includes installment payments, provided the terms are agreed to by all parties. 40 Pa. Cons. Stat. Ann. § 1301.832-A (West Supp. 1997).

Collateral Source Rule

In general, a medical malpractice claimant is entitled to the damages caused by the defendant's negligence, regardless of the compensation the claimant receives from other sources. Denardo v. Carneval, 297 Pa. Super. 484, 444 A.2d 135 (1982).

Pre-Judgment Interest

A Pennsylvania Supreme Court rule allows for the imposition of pre-judgment interest, commonly referred to as delay damages, in bodily injury or death cases. Pa. Rule Civ. Pro. 238 (West Supp. 1997). Delay damages are computed at the prime interest rate plus one percent from the date one year after the defendant was served with process to the date of verdict. Id. Pre-judgment interest is not recoverable, however, for either of the following periods: (a) after an offer of settlement made by the defendant is rejected by the claimant, if the claimant subsequently received a judgment which is not more than 125 percent of an offer of settlement the claimant rejected; and (b) during trial delays caused by the claimant. Id.

Patient Compensation Funds and Physician Insurance

Pennsylvania has a Medical Professional Liability Catastrophe Loss Fund ("CAT Fund") that provides excess insurance to all health care providers in the state. 40 Pa. Cons. Stat. Ann. § 1301.701 (West Supp. 1997). This singular institution affects all defense and settlement decisions in substantial cases. Recent legislation, however, has begun to reduce the role of the CAT Fund by increasing required private limits and by reducing excess limits. Id. Physicians and hospitals in Pennsylvania are required to obtain a prescribed amount of "basic insurance coverage" (which may be self-insured in approved cases). They are then entitled to and required to obtain excess coverage from the CAT Fund, paid for by an annual surcharge. Id. Basic insurance coverage carriers must provide a defense, but they can settle with a plaintiff for their limits and obtain a release, in which case the CAT Fund must continue the defense. 40 Pa. Cons. Stat. Ann. § 1301.702(e) (West Supp. 1997). After the exhaustion of the CAT Fund limit, the health care provider may be individually liable. Health care providers can purchase coverage in excess of the CAT Fund limits, and the excess carrier is protected from being required to drop down in case the CAT Fund is dissolved or becomes insolvent. 40 Pa. Cons. Stat. Ann. § 1301.705 (West Supp. 1997).

The following chart shows how the required limits of basic insurance coverage are scheduled to increase, while excess coverage will decrease. Basic coverage requirements are for policies issued or renewed in the stated year, while CAT Fund limits are for the calendar year. 40 Pa. Cons. Stat. Ann. § 1301.701 (West Supp. 1997).

A line of Pennsylvania cases holds that the CAT Fund, a statutorily created executive agency of the commonwealth, is not to be treated by the law like a commercial excess insurer. E.g., Butterfield v. Giuntoli, 448 Pa. Super. 1, 670 A.2d 646 (1995), cert. denied sub nom. Butterfield v. Mikuta, 546 Pa. 635, 683 A.2d 875 (1996). The most important consequence is that the CAT Fund, unlike a private insurer, cannot be liable for bad faith refusal to settle cases. Finkbiner v. Medical Professional Liability Catastrophe Loss Fund, 119 Pa. Commw. 243, 546 A.2d 1327 (1988), aff'd, 523 Pa. 101, 565 A.2d 157 (1989). This puts carriers providing coverage that is excess over the CAT Fund in a bad position, since the Fund cannot be forced by the threat of extra-contractual liability to tender its limits when necessary or otherwise to make reasonable settlement decisions. This situation has been slightly ameliorated by a recent case holding that the CAT Fund can be required to pay pre-judgment interest in excess of its limits for the period of time when it controlled the negotiations. Willet v. Pennsylvania Medical Catastrophe Loss Fund, ___ Pa. ___, 702 A.2d 850 (1997). It can also be required to pay post-judgment interest for its share of a judgment. Montgomery Hosp. v. Medical Professional Liability Catastrophe Loss Fund, 686 A.2d 432 (Pa. Commw. 1996). Although the magnitude of the CAT Fund layer is scheduled to shrink, excess carriers may find that the Fund's capacity to obstruct remains undiminished.

Immunities

Pennsylvania's sovereign immunity may not be raised as a defense to claims for damages caused by the acts of health care employees of the Commonwealth or by a Commonwealth physician or related health care personnel. 42 Pa. Cons. Stat. Ann. § 8522(b)(2) (West 1982 & Supp. 1997). The following defenses may be asserted by the Commonwealth or its employees: (a) the employee was acting pursuant to a duty required by a statute or statutorily-authorized regulation, or (b) the act was within the discretion granted to the employee by statute or statutorily-authorized regulation. 42 Pa. Cons. Stat. Ann. § 8524 (West 1982). In any event, the Commonwealth's liability is limited to $250,000 per claimant and $1,000,000 in the aggregate. 42 Pa. Cons. Stat. Ann. § 8528 (West 1982).

Local agencies and their employees are provided with governmental immunity from damages for personal injury caused by any act of the local agency or its employee. 42 Pa. Cons. Stat. Ann. § 8541 (West 1982). A local agency is defined as a government unit other than the Commonwealth government. There are, however, exceptions to local agency government immunity, but in contrast with the Commonwealth's immunity, there is no waiver of local agency immunity for medical malpractice claims. In situations where a local agency is not immune, its damages are limited to $500,000 per transaction or occurrence. 42 Pa. Cons. Stat. Ann. § 8553 (West 1982).

Arbitration

The former Pennsylvania health care arbitration statute providing for exclusive jurisdiction over medical malpractice claims by an arbitration panel was held unconstitutional as an impermissible infringement upon the right to a jury. Mattos v. Thompson, 491 Pa. 385, 421 A.2d 190 (1980). Arbitration remains an available alternative with the parties' consent, but is no longer required under Pennsylvania law. A new statute provides that within 90 days after the completion of discovery, the court must hold at least one "conciliation hearing," which may be a settlement conference or mediation as the parties prefer, 40 Pa. Cons. Stat. Ann. § 1301.825-A (West Supp. 1997). However, this has been "suspended" by the Pennsylvania Supreme Court on the ground that it is inconsistent with the court's constitutional authority to prescribe rules governing the courts. 27 Pa. Bull. 581 (Feb. 1, 1997).