People use “medical malpractice” to describe a wide range of bad medical experiences. Pennsylvania law is narrower. A malpractice case is about preventable error, measured against a professional baseline, and proven with evidence.
Doctors, like any professionals licensed in Pennsylvania, are expected and required to provide their professional services in accordance with recognized standards. These minimal standards are referred to as the “standard of care.” When a doctor fails to do so, that is considered a violation of the standard of care, and if that violation causes damage to a patient, a lawsuit would be supported.
Pennsylvania has laws that are specific to healthcare professionals. Before a lawsuit can be filed against a healthcare provider, the lawyer representing the injured party must obtain a Certificate of Merit. The relevant medical records must be reviewed by a professional who is board-certified in the same discipline, and that reviewer must conclude that there is a reasonable probability that malpractice occurred and caused harm to the patient. Once that Certificate of Merit is obtained, the doors to the courthouse are unlocked, and a lawsuit may be filed.
For nearly 100 years, the lawyers at Perry Calder Law have concentrated their practice in medical malpractice litigation and have obtained many of the state’s highest verdicts and record-setting settlements.
For more detail about our work in this area, see our Pennsylvania medical malpractice information.
Medical Malpractice Definition
“Medical negligence” and “medical malpractice” are often used interchangeably. In a Pennsylvania lawsuit, what matters is whether a health care provider violated the standard of care and whether that violation caused injury.
The terms “medical negligence” and “medical malpractice” are synonymous. The victim has the burden of proving four elements to make a successful recovery: duty, breach, causation, damages. In all settings, a health care professional has a duty to provide care that equates to the expected standard of care. Failure to do so constitutes a breach. If that breach causes damages to the patient, then the patient has a legitimate medical negligence/medical malpractice claim.
To comply with the standard of care, the physician merely needs to provide care that will be graded at the C-level. Patients should expect A or B-level care, but the law only requires C-level care. D-level care will support a medical malpractice claim. Care delivered at the F level might be considered reckless, or grossly negligent. Care delivered at that level would support a claim for punitive damages. While regular damages are designed to compensate the victim for economic harm and pain and suffering, punitive damages are designed to punish the wrongdoer and deter others who are similarly situated from acting in the same manner.
A Bad Outcome Is Not Automatically Malpractice
A bad outcome itself is not proof that medical malpractice occurred. Many times, even when good care has been provided, patients suffer bad outcomes. Lawyers must demonstrate that a physician failed to comply with the standard of care, and that failure was a factual cause in bringing harm to the patient. Similarly, there are situations where a physician fully complies with the expected standard of care, and yet complications follow. Known complications, even when appropriate care is delivered, do occur in medicine. The focus of any medical malpractice review is identifying errors that could have been prevented if a standard of care had been followed.
This is why informed consent forms can be misleading if they are treated as a “liability waiver.”
As you may be aware, before undergoing an invasive or surgical procedure in Pennsylvania, you will be presented with an informed consent form and required to sign. That form is designed to provide you with the most expected bad outcomes and discuss alternatives to the procedure that you are agreeing to have performed upon you.
If you experience a risk that appeared on the informed consent, that does not necessarily mean that you do not have a valid legal claim. Your medical records should still be reviewed to confirm that the physicians were acting within the standard of care, yet a known complication occurred.
Patient conduct can also matter in Pennsylvania because comparative negligence can reduce, and in some cases, eliminate recovery.
Patients must also be aware that their non-compliance and/or failure to follow doctors’ orders can diminish the amount of a recovery and may, in extreme cases, foreclosure the ability to file a lawsuit. When a patient has engaged in conduct that is a factual component of the harm suffered, that is legally defined as contributory negligence. If a determination is made that the contributory negligence is 50% or greater, then the patient will make no recovery.
Even where an error occurred, a case still needs meaningful damages.
Because you are only entitled to average care, not every bad result will sustain a medical malpractice lawsuit. Also, while the standard of care may have been violated, if no significant damages were sustained, then a lawsuit is not supportable. The evaluation process is complex, and there are many factors that must be reviewed before a lawyer can provide an educated opinion regarding the merits of pursuing a claim.
What Must Be Proven in a Pennsylvania Medical Malpractice Case
Pennsylvania malpractice cases turn on four elements: duty, breach, causation, and damages.
Under Pennsylvania law, the individual bringing the lawsuit, referred to as the plaintiff, has the burden of proof. In a civil case, the burden of proof is not beyond a reasonable doubt, as many commonly hear in television law dramas. The burden of proof is a preponderance of evidence, or more likely than not. We typically explain this concept to our juries by using an example. If you picture the scales of justice and you place all of the evidence brought forth by the plaintiff on one scale and you place all of the evidence brought by the defendants on the other scale, if the scale tips ever so slightly, the weight of one Pittsburgh snowflake, to the plaintiff’s side, then the plaintiff has carried the burden of proof and is entitled to your verdict. The plaintiff has the burden of proof on all elements described below. The failure to prove any one element would mean that the verdict is in favor of the defendant.
1) Duty
Any time a patient presents to a healthcare provider seeking treatment, a duty will be imposed by law. This is true even in situations where the patient does not know who their provider will be. For example, a woman reporting for a mammogram will meet a radiology technician but will rarely come face-to-face with the actual radiologist who will interpret the films.
Despite not knowing the identity of the radiologist and never having discussions with the radiologist, the radiologist is, in fact, the patient’s physician and is held to compliance with the expected standard of care. Failure to do so does justify a lawsuit against the radiologist.
2) Breach (Violation of the Standard of Care)
The standard of care for any particular individual will be defined by an expert familiar with the standard of care. For example, if a neurosurgeon was being sued for substandard brain surgery, then a board-certified neurosurgeon would be utilized to define the applicable standard of care.
Obviously, specialists will have higher standards of care than general practitioners. Likewise, doctors will be subjected to a higher standard of care than nurses. Mention that specialists are held to the standard of care within their specialty.
3) Causation
It is not enough to show an error. The plaintiff must prove the error actually caused harm. In many cases, that requires separate expert analysis on how the outcome would have changed with proper care.
The Failure to Diagnose Cancer case probably provides the best illustration. Assume that a mammogram has been misread and that a 4 mm lesion goes undetected. A mammogram is repeated two years later and a large, spiculated 3 cm lesion is identified. As a standard practice, the radiologist makes a comparison with the prior film and notes that a 4 mm lesion was present but not identified on the prior film. An independent radiologist is retained by the victim’s lawyer to review the first film. The expert opines, to a reasonable degree of medical certainty, that the 4 mm lesion should have been seen if the physician was complying with the standard of care. The victim’s lawyer would retain a second expert, most likely in the field of oncology, to offer an opinion and explain that the delay in diagnosis caused the lesion to grow from 4 mm to 3 cm and had a material impact on the treatment that was required, as well as the victim’s prognosis.
For related examples, see our failure to diagnose cancer page.
4) Damages
If you or a loved one have been the victim of medical malpractice, you will pursue a civil lawsuit. Unfortunately, the lawsuit cannot restore you to your pre-malpractice condition. All the law can offer is money damages designed to compensate you for all the harm that has been inflicted upon you.
This category of damages is the most difficult to evaluate. Under Pennsylvania law, the victim’s lawyer is not permitted to suggest a dollar amount for non-economic damages. The amount of non-economic damages is left to the total discretion of the twelve individuals who are functioning as the jury. Skilled victims’ lawyers have various methods utilized to help the jury in evaluating non-economic damages. Nevertheless, the first question that jurors ask when we speak to them after our trials is, “Did we award enough in damages?” That question is then followed up with, “How in the world did you expect us to make that determination?”
Where medical malpractice/negligence results in an individual’s death, the law of Pennsylvania statutorily defines the right to recovery under a wrongful death and survival action. In the absence of a will, these laws identify who can bring the claim. The same categories of damages are available in a wrongful death and survival claims as non-death claims; the only difference is who is entitled to the proceeds. Learn more about wrongful death claims in Pennsylvania.
Approximately half of the states have legislatively instituted caps on the non-economic damages that can be recovered in medical law practice lawsuits. Fortunately, Pennsylvania does NOT cap compensatory damages in medical malpractice cases.
Punitive damages are available in cases of reckless or intentional conduct, but a portion of the punitive award is returned to the state MCARE fund.
Who Can Be Sued for Medical Malpractice in Pennsylvania?
Most individuals directly involved in providing patient care services will be held to a duty of care and are subject to malpractice liability, including physicians, physician assistants, nurse practitioners, and midwives.
Hospitals and health systems may be defendants as well, depending on the relationship to the provider and the facts of the case.
For example, your primary care physician informs you that you need to see a heart specialist. Based on what you have learned within the community, you select a UPMC or an AHN facility.
You call that facility, and you are given an appointment with a doctor whom you have never met. Following your office visit, you agree to have an open-heart procedure performed at that particular hospital. In the event malpractice occurs, the surgeon would be directly responsible. The hospital would also be vicariously responsible for his conduct and would be a defendant named in the lawsuit.
Depending on the case, liability may involve a chain of care: a primary care doctor, a specialist, a radiology group, a lab, a hospital, and nursing staff. Sorting out who did what, when, and why often requires a full record review.
Pennsylvania Rules That Make Medical Malpractice Cases Different
Statute of Limitations: The 2-Year Filing Deadline or 18 Year Deadline
Pennsylvania’s general personal-injury statute of limitations is two years, and that includes most medical malpractice claims.
Pennsylvania recognizes doctrines that can affect when the clock starts (such as the discovery rule), and it also has a minors’ tolling statute, which is why birth injury timelines can be different.
Under the laws of Pennsylvania, an individual is not recognized as having legal standing until the age of 18. This prevents a 14-year-old from having the ability, or at least being legally responsible, to purchase a sports car. Similarly, a 14-year-old does not have the ability to file a lawsuit on their own behalf.
To solve this dilemma, Pennsylvania has a Minors’ Tolling Statute. That statute guarantees that a minor will have two years from the date of their 18th birthday to file a lawsuit, regardless of when the injury occurred. Thus, a child injured at birth can file a lawsuit as late as the day before their 20th birthday.
Common Medical Malpractice Scenarios
Creating a comprehensive list of medical malpractice examples would be impossible. The saying “truth is stranger than fiction” is no place truer than in a plaintiff lawyer’s medical malpractice office. At Perry Calder Law, we have pursued claims for almost every malpractice scenario imaginable. Sadly, medical and mental health malpractice claims continue their annual rise and can happen in any health care setting.
That said, the fact patterns that most often lead to Pennsylvania malpractice litigation include:
- Missed or delayed diagnoses
- Surgical and post-operative complications tied to preventable errors
- Medication mistakes
- Failures to monitor or respond to deterioration in hospitals and other facilities
- And many others
Frequently Asked Questions
Can I have a valid malpractice claim if the doctor “followed protocol”?
Yes. “Protocol” may be a starting point, but the legal standard is the standard of care under the circumstances. A provider can follow a generic checklist and still miss what a reasonably prudent provider would have done for your presentation (symptoms, risk factors, test results, timing, and follow-up).
What if I was treated by a team and I’m not sure who made the mistake?
That’s common. Pennsylvania malpractice cases often involve a “chain of care” across multiple providers and facilities. Medical records, orders, consult notes, radiology reads, nursing documentation, and timestamps usually show who made which decisions and when.
If another doctor later says, “I would have done it differently,” is that enough to prove malpractice?
Not by itself. A difference in medical opinion can exist without negligence. Malpractice typically requires showing the care fell below the accepted standard, not just that another provider prefers a different approach.
Does signing an informed consent form prevent a lawsuit?
No. Informed consent forms are not a blanket waiver of negligence. They generally document known risks and alternatives. A claim can still exist if the provider deviated from the standard of care or if the consent process itself was legally deficient.
Can a hospital be responsible if the doctor is not an employee?
Sometimes, yes. Depending on the facts, hospitals can face liability through theories like vicarious liability/apparent agency or their own negligence (policies, staffing, credentialing, supervision, systems failures). The relationship depends on how care was presented to the patient and how the provider was supplied.
What to Do If You Suspect Medical Malpractice in Pennsylvania
Start with the records. A reliable malpractice evaluation is record-driven, not assumption-driven.
Because Pennsylvania requires early expert involvement through the Certificate of Merit process, it is important to act before deadlines close and before critical information becomes harder to obtain.
If you believe medical negligence caused serious harm, the next step is a fact-driven review of the records against the applicable standard of care. In Pennsylvania, that is what decides whether a case can and should be filed. To understand how our firm evaluates cases, see our screening process.