You go in for surgery or a routine medical procedure to correct a routine medical problem. Or, perhaps, you entered the hospital after an accident or another traumatic event. In either case, you sought medical attention to aid and expedite your recovery from an injury or an illness. Unfortunately, despite the efforts by doctors, nurses and other qualified medical professionals you sometimes face a bad medical outcome. Your particular bad medical outcome may have aggravated your condition, created new medical issues, or otherwise reduced the quality of life you can expect to live. In other cases, the medical mistake may have resulted in the wrongful death of a close family member or loved one.
In Pennsylvania there were more than 1,500 medical malpractice claims filed in 2013. Filings were most numerous in Philadelphia Allegheny, Montgomery and Bucks counties. However, failing to understand what constitutes medical malpractice or sitting on your claim can lead to a possibly viable claim becoming non-viable. Engaging with an experienced medical malpractice lawyer as soon as you become aware of the alleged malpractice can help you avoid a harsh application of the law due inaction or misunderstanding. At The Reiff Law Firm our medical malpractice attorneys have stood up for injured Pennsylvanians for more than 34 years.
A Medical Malpractice Claim Requires Evidence Of More Than A Bad Medical Outcome
Regardless of the situation, it is first important to understand that not every bad medical outcome constitutes medical malpractice. Medical malpractice requires something more than merely a bad result. This is perhaps one of the most misunderstood aspects of a medical malpractice claim.
That is, for there to be a viable medical malpractice action, the behavior of a doctor or other medical professional must have fallen outside of or below an acceptable standard of care. The medical professional must have taken some action or failed to take an action that would not be considered reasonable or acceptable and that action or inaction must have resulted in injury. This is often the first threshold to clear before an action can be considered viable.
The next hurdle a medical malpractice action must clear to be considered viable is that it must also be timely. A timely action is an action that is filed within the time limits set forth by the statute of limitations and the statute of repose. The remainder of this post will examine the statute of limitations and statue of repose that is applicable for all medical malpractice claims filed in the state of Pennsylvania.
What Is The Statute Of Limitations For Medical Malpractice Actions In Pennsylvania?
In Pennsylvania, all medical malpractice claims are required to be filed within 2 years after the cause of action has accrued, unless an exception applies. 42 Pa. C.S. § 5524(2). One fairly common exception to this rule includes minors who receive medical treatment prior to their 18th birthday. In these instances, the statute of limitation does not begin to run until the minor reaches his or her 18th birthday. The statute of limitations will then begin to run and function as normal. Under most circumstances, this means that the individual will have until, at least, his or her 20th birthday to file. W. Penn Allegheny Health Sys. v. Medical Care Availability & Reduction of Error Fund, 11 A.3d 598, 602 (Pa. Commw. Ct. 2010) (citing, 42 Pa. C.S. § 5533(b)(1)).
Are There Other Expectations To The Medical Malpractice Statute Of Limitations?
Yes, there are exception to the statute of limitations that can toll, or pause, the statute of limitations from running. The chief exception to the statute of limitations in Pennsylvania is the discovery rule. The discovery rule tolls the statute of limitations of certain medical malpractice actions where the injured patient does not know or have reason to know about his or her injury. The statute of limitations will only begin to run when the potential plaintiff knows or has reason to know of the injury.
Is There A Statute Of Repose?
Until 2002, there was no statute of repose from medical malpractice actions in Pennsylvania. However with the passage of Pennsylvania’s MCARE (Medical Care Availability & Reduction of Error Fund), new limits on when a medic malpractice actions can be brought were imposed. The general rule set forth in 40 P.S. § 1303.513 prohibits a medical malpractice action from being brought if more than 7 years have passed from the date where the alleged malpractice took place. This rule can limit the curative effects of the discovery rule and can lead to rather harsh applications where an undiscovered injury may be time barred due to the rule.
Are There Exceptions To When The Statute Of Repose Will Apply?
There a a number of circumstances where the statute of repose will not be effective. These expectations to the general time limits imposed by the statute of repose include:
- Foreign object was forgotten in patient’s body (40 P.S. § 1303.513(b)) – In situations where a surgical instrument or a surgical tool was left behind – items like sponges, gauze, or surgical scissors – the statute of repose would not apply. Furthermore in this instance the statute of limitations also would not run until the patient knew or had reason to know of the forgotten foreign object.
- The injured patient was a minor – Like the tolling of statute of limitations, the statue of repose can be tolled by a patient’s status as a minor who has not yet reached age 18. The tolling provides that action may be brought by the minor, “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.” 40 P.S. § 1303.513.
- Actions brought under wrongful death or survival statutes – If a action is brought for wrongful death or survival, actions of this type must generally be brought within 2 years. In instances where there may have been fraudulent concealment, a material misrepresentation, or other acts the 2 year limit will not apply.
The above constitute the main exceptions to Pennsylvania’s statute of repose. Furthermore, the foregoing should not be considered legal advice as facts and circumstances are uniquely specific to each and every matter. A determination as to whether any exceptions may apply in your circumstances can only be made after careful consideration by an experienced lawyer.
Why Is There A Statute Of Repose And A Statute Of Limitations?
The purpose of a statue of repose of a statute of limitations is to encourage parties to come forward and their disputes in a timely fashion. Doing so increases the chances that evidence will be available since memories will not have had time to fade and documents are unlikely to have been already discarded. Providing certainty that all potential claims have been resolved, allows business owners and professionals in the field to move forward beyond actions performed years or decades ago.
Working with an experienced medical malpractice attorney can help you avoid falling into one of the many pitfalls that come along with filing a medical malpractice action. Working with an experienced attorney can increase the chances that your matter is not filed too soon before you have, or are likely to obtain, evidence that can support your allegations. Furthermore, the guidance of a medical malpractice lawyer can also help you avoid filing your action too late when it is likely to be barred by a statute of limitations or statute of repose. To discuss your matter, including a failure to diagnose lawsuit, with a The Reiff Law Firm attorney, call (215) 246-9000 today. We provide free and confidential initial consultations.