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Update on Medical Malpractice in Pennsylvania Under the New Medical Care Availability and Reduction of Error Act

After much anticipation and debate, the Pennsylvania legislature passed legislation known as Act 13. Shortly thereafter, on March 20, 2002, Governor Mark Schweiker signed Act 13 into law as the Mcare Act (Medical Care Availability and Reduction of Error Act). The legislation encompasses a sweeping range of changes, including new duties, responsibilities, regulations, and administrative functions. These can be broken down into three major areas:

  • insurance reform,
  • medical professional liability (tort) reform, and
  • patient safety.

This article focuses on the medical professional liability reforms and the variations in Mcare which most significantly impact the defense of medical malpractice cases in the Commonwealth.

Expert Witnesses

A significant change found in the Mcare Act concerns expert witness qualifications and expert testimony in a medical malpractice case. Prior to the enactment of the statute, Pennsylvania’s standard on expert witness qualifications and testimony was governed solely by case law. Generally, under Pennsylvania case law, if the witness possesses knowledge outside of the ordinary reach of a lay person and offers testimony which could assist the trier of fact, the witness is qualified to give an opinion as to causation and as to whether the medical care provider deviated from the standard of care. Montgomery v. South Phila. Med. Grp., Inc., 441 Pa. Super. 146, 656 A.2d 1385 (1995); see also Bindschusz v. Phillips, 2001 Pa. Super. 93, 771 A.2d 803 (2001)(anesthesiologist permitted to testify as to the standard of care against orthopedic surgeon).

Under the Act, an expert must satisfy specific requirements which are above and beyond what is required in non medical malpractice actions under Pennsylvania law, before being permitted to render an expert opinion. An expert testifying on a medical matter, including the standard of care, risks and alternatives, causation and the nature and extent of the injury, must possess an unrestricted physician’s license to practice medicine in any state or the District of Columbia, and must be engaged in, or retired within the previous five years from, active clinical practice or teaching.

In addition to these requirements, a physician testifying as to the standard of care must also 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, must practice in the same sub-specialty as the defendant physician or in a sub-specialty which has a substantially similar standard of care, and, if the defendant is certified by an approved board, the expert must be board certified by the same or similar approved board. The court may waive these requirements if it determines that the expert possesses sufficient training, experience, and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable sub-specialty or a related field of medicine within the previous five-year time period. 40 P.S. § 1303.512(e). The limitations and regulations on expert witnesses will generally benefit defendants, as it will now be more difficult for a plaintiff to present an expert from a medical field different from the field at issue.

Collateral Source Rule

A significant modification found in Section 1303.508 of the Act is the variation on the collateral source rule. The rule in Pennsylvania has been that a plaintiff can recover for expenses, even when those expenses have been paid by a third party, such as an insurer. Moorhead v. Crozer Chester Medical Center, 564 Pa. 156, 765 A.2d 786 (2001). The Act discards the collateral source rule in medical malpractice actions as adopted by Pennsylvania appellate courts, in order to offset the recovery by plaintiffs according to payments received by plaintiff. The plaintiff may no longer recover past medical expenses paid by medical insurance or past lost earnings covered by a policy of disability insurance or any private or public benefit or gratuity that the claimant has received prior to trial. See 40 P.S. § 1303.508(a).

The plaintiff has the option to introduce into evidence the amount of medical expenses incurred at trial, but will not be allowed to recover such expenses as part of any verdict, except to the extent the plaintiff remains legally responsible for such payment. 40 P.S. § 1303.508(b). The Act expressly prohibits any form of subrogation or reimbursement from the plaintiff’s tort recovery. The Act maintains exceptions to the collateral source rule such as life insurance, social security benefits, Department of Public Welfare benefits, and other public benefits paid under a federal statute. See 40 P.S. § 1303.508(d). Allowing defendants to reduce the recovery of plaintiffs by amounts received from third party sources will clearly decrease the amounts recoverable.

Statute of Repose

Another change in the Mcare Act concerns the statute of repose. The discovery rule exception to the statute of limitations has been alive and well in the Commonwealth for medical malpractice actions, allowing plaintiffs to commence actions within two years of the date when it was reasonable for the plaintiff to have knowledge or “discover” injury due to the negligence of a physician. Colonna v. Rice, 664 A.2d 979 (Pa. Super. 1995); Citsay v. Reich, 380 Pa. Super. 366, 551 A.2d 1096 (1988). The Act changes this rule by imposing a new statutory limitation on the commencement of medical malpractice actions within the Commonwealth.

Under the Act, an action for medical professional liability may not be commenced more than seven years from the date of the alleged tort or breach of contract, regardless of when the injury was discovered. Exceptions are made for foreign objects unintentionally left in the patient and for minors. This portion of the Mcare Act should reduce the number of claims, although there is no statistical data to quantify this. However, one of the foreseeable problems with applying this section is determining the date of negligent care in a failure to diagnose case, and this is likely to be considered by the courts to be a question of fact to be decided by the jury.

The Mcare Act contains provisions that are intended to make the presentation of questionable claims more difficult. However, the Act will have little immediate impact in the short term and on current actions since key provisions of the Act, as outlined above, only apply to “causes of action which arise” on or after March 20, 2002, the effective date of the Act. See 40 P.S.§ 5105(b). Due to the manner in which the Act applies, the full effects of the Act on medical malpractice litigation may not be realized for several years.

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