Philadelphia Injury Lawyer Blog

A Philadelphia medical malpractice attorney needs to be aware of a significant, but perhaps little known, change in Pennsylvania law, when evaluating whether a new death case can be timely filed. There are two actions that are typically filed when a person dies due to medical negligence. A wrongful death action and a survival action. The two actions allow for different areas of damages. (A subject for another blog entry) Prior to the enactment of the Medical Care Availability and Reduction of Error (MCARE) Act, the law that controls professional liability lawsuits in Pennsylvania; the date on which the survival action had to be filed to preserve the claim was two years from the date of the negligent act that caused injury. (Possibly extended by the “discovery rule” - also a subject for another entry) For the wrongful death claim, the suit needed to be filed within two years of the date of death.

An example of where this could create a problem is found in a current medical malpractice case being readied for trial by the offices of Pomerantz Perlberger & Lewis. During a laparoscopic hernia repair at a local Philadelphia hospital, the surgeon punctured two holes in a woman’s small bowel during an April operation. Unfortunately the doctor negligently failed to recognize the injury and also carelessly missed signs of a serious infection for another six days, by which time the poor plaintiff developed a severe peritonitis. Although this wife and mother fought valiantly, while enduring horrible pain and suffering over the next eight months, her medically caused injury tragically proved fatal the following January. See specially created Exhibit below.

Had the surgical mishap occurred before the March 20, 2002 effective date of the act and such a case had come to the offices of a medical malpractice wrongful death lawyer more than two years after the injury, but less than two years after death; it would have already been too late to file a survival claim, drastically lowering the value of the case by eliminating recovery for pain and suffering To the rescue came Section 513 (d) of the MCARE Act. Now both actions may be filed within two years of the date of death.

(d) Death or survival actions.--If the claim is brought under 42 Pa.C.S. § 8301 (relating to death action) or 8302 (relating to survival action), the action must be commenced within two years after the death in the absence of affirmative misrepresentation or fraudulent concealment of the cause of death.

Even today, lawyers who are not experienced in medical malpractice cases may be unfamiliar with the change in law and either not pursue an important and valuable claim for the decedent or turn down a good case altogether. The experienced wrongful death medical malpractice attorneys at Pomerantz Perlberger & Lewis will help you recover all of the damages to which you are lawfully entitled for the tragic death of your loved one due to medical negligence.