The Falvello Law Firm

Friday, October 2, 2009

Medical Malpractice in Pennsylvania

The Malpractice Crisis is over. During both George W. Bush campaigns, one of the centerpieces of his campaign platform was tort reform which sought to limit the recovery rights of guiltless victims of medical error and their families. His version never got beyond campaign rhetoric. It was not Bush or his ilk that mitigated the claims situation here in Pa.

In March 2002, the Pennsylvania Legislature and the Pa. Supreme Court changed the fundamentals of Medical malpractice law in this State.

Before the changes, any lawyer on behalf of any person dissatisfied with his or her medical outcome could file suit without a pre-suit medical review of the two most critical issues:.

First,was the patient subjected to substandard care, AND;

Second,did the substandard care cause a harm to the patient that would not have otherwise occurred?

Both these questions must be answered “yes” in order to have a claim.

Many lawyers and their unhappy clients were under the mistaken impression that the Doctor or Hospital and their insurance company would simply ante up some money to get rid of small or nuisance claims.

They were wrong. These cases, even the clearest of them, are vigorously defended. Many insurance policies have consent clauses which prevent any discussion of resolution without the Doctors written consent. This alone drove many (meritless) cases into the Court system for trial. The pre-2002 case numbers proved this.

The 2002 changes required a pre-suit review by the patient and Attorney on the critical issues; and the filing of a Certificate of Merit certifying such a preliminary review to the Court at the time of filing. No Certificate of Merit and the case gets tossed.

This particular change did not materially affect those of us with experience in these cases. We were routinely doing thorough pre-suit reviews knowing the nature of these cases.

Other changes made by the Legislature also had an impact on the number of filings since 2002 by substantially changing the potential money damages a successful claimant could recover. This was known as the MCare Act(Medical Care and Reduction of Error Act). Contrary to the Bush solution, MCare did not put caps on recovery. A different approach was taken to contain costs. It prevented recovery of medical bills paid prior to trial if those bills were paid by a non-government private insurer. This provision is like a similar provision in our auto insurance law. Precluding recovery of insurance paid medical bills brings into question the economic viability of pursuing, for example, a case of clear error with a large amount of treatment bills paid by private insurance, but a patient who eventually made a full recovery. Additional modifications were made to the manner in which any future medical bills and wages are paid.

posted by Connie at 11:21 AM 0 comments