Personal Injury Law

Medical Malpractice

Medical malpractice covers a number of areas. If you feel you have suffered due to the following you may have a case.

  • Anesthesia errors
  • Birth injury or trauma
  • Emergency room errors
  • Hospital malpractice
  • Surgical error malpractice
  • Medical device errors
  • Medical errors
  • Misdiagnosis or Delayed diagnoses
  • Postoperative negligence


Frequently Asked Questions

Our law provides patients with a right to compensation for injuries caused by medical care and treatment that falls below the accepted standard of care. Each medical profession, specialty, and sub-specialty has a minimum standard of practice and competence, termed the standard of care. Only someone qualified and licensed to practice within a particular medical area is qualified to define the standard of care for that area; i.e., only a pediatric orthopedist can say what the standard of care is for pediatric orthopedics. Medical treatment that falls below the standard of care is negligence. A patient is entitled to compensation for only those injuries that were caused by negligent treatment. The question of whether a patient has a case is a complex analysis of legal, medical and economic factors. An attorney must be able to evaluate the likelihood of obtaining favorable medical expert opinions and testimony, the nature and extent of the injuries that can be linked to the negligent treatment, the likelihood of being able to bring the case in a plaintiff friendly location, and the amount of money that a jury may award should the patient win at trial.

In general, you must file a lawsuit within two years of when you knew or should have known of the injuries caused by the alleged negligent treatment. This two year period in which to file suit, called the Statute of Limitations, has a number of exceptions. The Statute of Limitations is stopped, or tolled, by the Discovery Rule, which applies in situations where the patient did not know, and could not have known, about the doctor’s negligence. For example, if a surgeon leaves a surgical sponge in a patient and the sponge does not cause problems until many years later, under the Discovery Rule the Statute of Limitations will start to run when the sponge is found. The Discovery Rule is complicated and courts apply it sparingly; the Discovery Rule will not extend the time to sue if the court concludes that the patient could have learned of the doctor’s negligence if he had been more diligent in investigating whatever medical complaints he had. In cases involving death, a lawsuit may never be brought more than two years after the date of death. For cases involving claims on behalf of minors, the Statute of Limitations does not start to run until the minor reaches the age of 18. Therefore, a suit may be filed at any time on or before the minor’s 20th birthday.

A medical neglect case can be filed only in the county in which the negligence occurred. If the negligence occurred in more than one county, then the case may be brought in either county. This rule in medical malpractice cases is very different to the rule in other types of personal injury law suits. If the case involves claims against the Veterans’ Administration or involves parties from different states, the case may be brought in federal court. If the defendants are all from outside of Pennsylvania, and the plaintiff is a Pennsylvania resident, the defendants can remove a case started in state court to federal court.

To start a medical malpractice law suit, the attorney filing the case must execute and file a certification stating that the attorney has obtained from an appropriately qualified physician a written opinion that the case has merit. The physician must be qualified to testify on the opinions given, although the plaintiff has the option at the trial of substituting the physician with an equally qualified expert. The physician must state in his letter to the attorney that a reasonable probability exists that the care provided by the defendant doctor breached the standard of care and that the breach caused harm. Depending on the case, two separate letters of merit may be required, one to say a breach occurred and one to say the breach caused harm. The attorneys at Swartz SC Culleton PC have an extensive network of physicians who are expert in the different medical specialties and sub-specialties and can obtain the necessary certificate of merit letters. Because a full investigation of the medical records must be complete before a physician will sign a certificate of merit, the pre-suit period for medical malpractice litigation is longer than for other types of personal injury actions. For this reason, if you believe you are a victim of medical malpractice, it is of paramount importance that you consult with an attorney at your earliest possible opportunity.

An informed consent claim is distinct and separate from a negligence claim. Before a surgeon may perform an operation, she must first obtain the patient’s consent because any unauthorized touching is a battery. In medicine, a patient cannot give proper consent unless he is first told about all of the known risks associated with the operation. He must be told every risk that any reasonably prudent patient would want to know. If a patient is not advised of a significant risk, and he can show that he would not have had the procedure if had been told about that specific risk, the physician will be liable if the harm does in fact occur. To document that they have advised their patients of all the significant risks, physicians have their patients signs a form that lists all the possible risks.

Doctors and nurses do not guarantee their work, and virtually all medical procedures have known complications that can occur even with the best of care. You cannot prove a doctor was negligent just by the mere fact that a bad outcome occurred if that outcome is a known and accepted complications. At the same time, if a doctor is negligent, and his negligence increases the risk of a bad outcome, his conduct is not excused just because the outcome is a known complication, even if the patient had signed a piece of paper prior to surgery acknowledging that he was advised of the risk of that complication. For example, every surgical procedure carries a risk of infection, and before surgery, the patient will sign an Informed Consent to say he has been told of that risk. Nevertheless, a surgeon may still be held liable for negligence if she does not wash her hands and her patient gets infected. In medical malpractice litigation, the issue of whether an outcome is an accepted complication or an unacceptable complication in most situations involves specialized medical knowledge. Cases involving obvious malpractice, such as a surgeon amputating the wrong limb, are rare. Rather, most instances of malpractice involve departures that are instantly recognizable only to professionals practicing in the medical-legal field. For example, whether a physician is liable for failing to give a stroke victim the clot busting drug tPA depends on multiple factors, such as the time that had passed since the patient’s change in neurological status, whether the stroke is embolic, and the area of the brain affected by the stroke, and whether MRI or CT studies show a bleed in the brain. A failure to diagnose cancer case requires specialized knowledge on the standard of care for screening, cancer staging and pathology, and survival rates. A birthing trauma related infant brain damage case requires an understanding and interpretation of infant heart monitor strips, placenta pathology, child functioning scores and blood work. A heart attack case concerns issues relating to a family doctor’s duty to screen for heart disease, diagnostic test interpretation, and post attack heart functioning assessments.

No. Pennsylvania law and New Jersey law do not require patients to prove that the defendant doctor’s negligence was the sole cause of the resulting harm. Rather, the patient must show that the negligence was a substantial factor that increased the risk of the harm that in fact occurred. In other words, a patient can prevail by showing the doctor’s negligence took away a patient’s chance of beating the disease. This standard of causation is often the central issue in cancer diagnosis delay cases, where the diagnosis delay results in increased tumor growth prior to treatment, which reduces the patient’s odds of survival. The mere fact that the patient may, in any event, have died from the disease, even with timely treatment, will not excuse the doctor’s delay. However, the patient must still prove that the delay was a substantial factor and that the risk of harm was increased.

If you are injured as a result of a doctor’s negligent treatment, you may be entitled to compensation for certain categories of damages. These categories are classified as being either economic or non-economic. The economic damages are past and future medical costs, past lost wages and the loss of potential to earn money in the future. The non-economic damages are pain and suffering, disfigurement and scarring, emotional distress, loss of bodily functions, and the loss of the ability to enjoy the pleasures of life. If your husband or wife is injured by negligent medical care, you may recover for loss of consortium, which is the loss of your spouse’s affection and services. In a case involving an untimely death, the administrator of the decedent’s Estate may bring a suit on behalf of the Estate to recover the damages that the decedent suffered prior to death, and on behalf of the decedent’s spouse and dependents to recover compensation for loss of consortium and economic support. In medical malpractice cases, certain unique damages rules apply. Past medical costs can be recovered if the patient paid those casts, or if the cost were paid by the Pennsylvania Department of Public Welfare or a federally governed insurance policy, in which case a lien will apply. If the past medical bills were paid by any other type of insurance, those costs cannot be recovered. For future medical costs, a jury must award those damages in periodic payments, although a patient may agree to settle out-of-court for a lump sum amount. The method for calculating the future loss of the patient’s ability to earn a living in medical negligence cases is different to the method used in other bodily injury claims.

In all cases involving death, and cases involving injuries to minors, court approval is required for any settlement. The court must agree that the settlement amount and distribution, including the payment of attorney fees and costs, are fair to the Estate beneficiaries and survivors, or to the minor in a case brought on behalf of a child. For example, in a birthing injury case, the court will scrutinize the settlement to ensure that the funds recovered on behalf of the brain injured child are used solely for the child’s benefit and that the funds are protected and appropriately invested.

Medical malpractice cases generally take two to three years to resolve, and sometimes even longer. The Philadelphia state court places all medical malpractice cases on the Complex Tract, as opposed to Expedited or Standard Tracts, which means it takes longer to get to trial. Additionally, medical neglect cases seldom settle early due to a variety of reasons. Unlike for general liability policies, most physician insurance policies provide the doctor with a right of consent, meaning the physician must first consent before the insurance company can settle any claims. In addition, in malpractice cases, the doctor often has coverage under more than one policy, only one of which pays the costs of defending the case. This adds complexity that also may prevent early settlement.