What Is The Difference Between Medical Malpractice and Wrongful Death?

What Is The Difference Between Medical Malpractice and Wrongful Death?

Unfortunately, some incidents of medical malpractice result in the deaths of patients. However, medical malpractice and wrongful death cases are not the same types of legal matters. There are some important distinctions between these two legal theories that might be confusing to you, making you unsure whether to pursue a medical malpractice or wrongful death claim against the involved medical provider.

Some medical malpractice cases do not involve patient death, and some wrongful death cases involve another type of incident other than medical mistakes. Medical malpractice lawsuits arise when a healthcare professional fails to provide care that meets the established standard for practitioners in the same practice field and geographic area. On the other hand, wrongful death occurs when someone is killed because of someone else’s negligent or wrongful acts.

Medical malpractice sometimes results in a patient’s death that otherwise might not have occurred but for the medical provider’s negligence. If your loved one’s death was caused by the actions or inactions of a healthcare provider, you might rightfully be considering legal action against the negligent party to hold them accountable for what happened to your loved one. Whether you should pursue a medical malpractice or wrongful death claim will depend on your goals, your relationship with the deceased party, and the circumstances surrounding what happened.

The main differences between these two types of legal cases include the parties who can pursue compensation and the relevant statutes of limitation. At the law firm of Raynes & Lawn, our attorneys have represented the victims of medical malpractice for more than five decades in Philadelphia, Pennsylvania. We have successfully recovered tens of billions of dollars in compensation for patients and families and have extensive experience handling a broad range of medical malpractice matters. We are prepared to provide a free consultation and help you understand your legal options and next steps.

What Is Medical Malpractice?

Medical malpractice is a niche area of personal injury law that arises when a healthcare practitioner injures a patient by failing to provide treatment meeting the established standard of care. The standard of care depends on the geographic area in which the provider practices, their field, experience, education, and training. It refers to the treatment a reasonably prudent healthcare practitioner with a similar level of education, experience, and training in the same field and geographic region would provide under the same treatment conditions. To have a viable medical malpractice claim, you’ll need to prove that your loved one’s injuries and death would not have otherwise occurred but for the medical provider’s violation of the standard of care.

Who Might Be Liable for Medical Malpractice?

Medical providers who might be liable for malpractice include many different types of healthcare professionals, including the following examples:

  • Medical doctors (MDs)
  • Doctors of osteopathy (DOs)
  • Doctors of chiropractic (DCs)
  • Nurse practitioners
  • Pharmacists
  • Dentists
  • Psychologists
  • Registered nurses
  • Other healthcare providers

Medical facilities can also be liable for malpractice in some cases, including skilled nursing facilities, rehabilitation centers, hospitals, outpatient surgical centers, pharmacies, and others.

Examples of Medical Malpractice

Medical malpractice can take many forms, including the following examples:

This is not an exhaustive list. Unfortunately, medical errors are far too common and can occur during any phase of treatment, including diagnosis, follow-up, discharge, or treatment.

Certificate of Merit Requirement

Under 231 Pa. Code § 1042.3, medical malpractice plaintiffs must file a certificate of merit when they file a lawsuit. This certificate must be filed within 60 days of filing the civil complaint and certifies that the case has been reviewed by a medical expert who agrees the provider’s treatment deviated from the standard of care and caused the patient’s injuries and losses. This means that you must retain a medical expert to review the medical records and other evidence in your case before filing a malpractice lawsuit. The experienced attorneys at Raynes & Lawn partner with medical experts who can examine your claim and provide an expert opinion about its viability.

Medical Malpractice Statute of Limitations

All legal cases have statutes of limitation that control when a claim must be filed. If you miss the statute of limitation for your case, your claim will be time-barred. This means you won’t be able to file a lawsuit to pursue compensation and hold the defendant accountable if you miss the deadline.

The Pennsylvania medical malpractice statute of limitations is two years under 42 Pa.C.S. § 5524. This general limitations period starts to run either from the date of injury or the date the patient discovers or reasonably should have discovered the cause of their injuries.

For example, if you suffered a brain hemorrhage because of a surgical error and survived, you would need to file a lawsuit within two years of discovering that it was caused by your doctor’s medical mistake. This might not be the date when the incident occurred but might only reasonably be discovered at some point later.

In cases in which the malpractice incident could not reasonably have been discovered until after the two years have already passed, the limitation period is tolled until the date it is discovered. Pennsylvania used to follow a statute of repose, which established a seven-year limit for filing claims regardless of the date of discovery. However, in Yanakos v. UPMC, 655 Pa. 615 (2019), the Pennsylvania Supreme Court held that the statute of repose is unconstitutional. This means that there is effectively no deadline for when a claim might be filed if the cause can not reasonably be discovered for years.

Proving a Medical Malpractice Lawsuit

Proving a Medical Malpractice Lawsuit

There is no guarantee that the outcome of medical treatment will be what you want it to be. Even if your loved one died after receiving medical care, that does not necessarily mean that the doctor made any medical mistakes rising to the level of malpractice. Instead, you will need to have sufficient evidence to prove each of the following elements of medical malpractice to win your case:

  • A provider-patient relationship had been formed between the medical provider and your loved one
  • The healthcare professional’s established standard of care
  • The treatment provided to your loved one by the healthcare professional deviated from the standard of care
  • The healthcare professional’s actions or inactions caused your loved one’s injuries and death
  • The medical negligence resulted in calculable damages

Damages in a Medical Malpractice Lawsuit

Damages are monetary amounts to compensate a plaintiff for their losses. In a medical malpractice lawsuit, both economic and non-economic damages might be available for the following types of losses:

  • Medical expenses to treat your loved one’s injuries until their death
  • Loss of the income your loved one would have earned if they would have lived
  • Burial and funeral expenses
  • Pain and suffering
  • Mental anguish/emotional distress
  • Loss of ocnsortium

While some states have caps placed on the amount of non-economic damages in medical malpractice cases, Pennsylvania does not cap economic or non-economic damages. Punitive damages, which are awarded in rare cases involving grossly negligent or wrongful acts, are rarely an issue in medical malpractice lawsuits. However, if they are awarded, they are capped at no more than twice the compensatory damages.

What Is Wrongful Death?

A wrongful death lawsuit is governed by 42 Pa.C.S. § 8301. Wrongful death occurs when someone dies as a result of another’s wrongful or negligent conduct. The negligent or wrongful act must have been something that would have allowed the deceased victim to pursue a personal injury lawsuit if they had survived, including a medical malpractice lawsuit. Medical malpractice specifically focuses on a healthcare provider’s medical negligence. By contrast, wrongful death actions can be filed based on many different situations, including when a death is caused by any of the following:

  • Motor vehicle collisions
  • Nursing home neglect or abuse
  • Slip and fall accidents
  • Defective products, including medical devices
  • Recalled, dangerous products
  • Dangerous or recalled food sold by grocery stores or restaurants
  • Birth injuries
  • Medical malpractice
  • Assaults

Wrongful death claims cover many different areas of tort law and don’t just involve medical malpractice.

Parties Allowed to File Wrongful Death Lawsuits

Pennsylvania restricts the right to file a wrongful death lawsuit to those with specific relationships with the deceased victim. To file a wrongful death lawsuit, you must have one of the following relationships with the victim:

  • Surviving spouse of the deceased victim
  • Surviving child of the deceased victim
  • Parent of the deceased victim

If you are not one of these parties, you can’t file a lawsuit. If none of these parties survive, the case can be filed by the personal representative or administrator of the decedent’s estate. In that case, any compensation recovered will be paid into the estate and distributed to the beneficiaries under the state’s intestacy laws.

The personal representative is the person named by the deceased victim to execute their will. If the deceased party died without a will, the probate court will appoint a personal representative or administrator to handle the estate. In most cases, this representative will be a close family member of the deceased victim who agrees to handle the estate.

Wrongful Death Statute of Limitations

The wrongful death statute of limitations is found in 42 Pa.C.S. § 5524 and is two years from the date of your loved one’s death. It’s important to note that the personal injury statute of limitations runs from the date of the injury, but the wrongful death limitations period doesn’t start to run until the date of death. This difference is important in cases in which a victim survives the initial injury for a time before succumbing to their injuries.

Wrongful Death vs Medical Malpractice

In comparing the statute of limitations for wrongful death vs medical malpractice, the wrongful death statute of limitations might provide less time to file a claim than the medical malpractice statute of limitations since the wrongful death deadline is two years from the date of death. As previously noted, the medical malpractice limitations period is two years following the date of discovery, which might occur far into the future after the medically negligent act.

However, the statute of repose for medical malpractice lawsuits resulting in death is two years after the date of the victim’s death under 40 Pa. C.S. § 1303.513(d). This means that if your loved one died because of medical malpractice, you must file a wrongful death lawsuit within two years of their death.

If your loved one died because of medical negligence, and you are the spouse, parent, or child of the victim, you and your family can pursue a wrongful death lawsuit against the medical provider or facility that was responsible.

Proving Wrongful Death

To prove wrongful death, you will have the burden of proof to establish the following elements of negligence:

  • The defendant had a legal duty of care to your loved one
  • The defendant violated the legal duty
  • The defendant’s breach of duty caused the accident and your loved one’s injuries
  • Your loved one’s death resulted
  • You suffered calculable damages


Damages in a Wrongful Death Lawsuit

The victim’s family can recover the following damages in a wrongful death lawsuit:

  • Medical, nursing, and hospital care to treat the victim’s injuries before death
  • Reasonable funeral and burial expenses
  • Support the victim would have provided to the family if they had lived
  • Grief, emotional distress, and pain and suffering the family suffered as a result of the victim’s death

Previously, plaintiffs in wrongful death lawsuits were limited to recovering their economic damages but could not recover damages for their non-economic losses. However, in Rettger v. UPMC Shadyside, 991 A.2d 915 (Pa.Super. 2010), the court expanded the recoverable damages in a wrongful death case to include the non-economic losses the surviving family members suffered.

In addition to a wrongful death action, many plaintiffs also pursue a survival action under 42 Pa.C.S. § 8302. Through a survival action, families can pursue compensation for the losses their loved one suffered before their death, including their physical pain and suffering, emotional distress, and others.

Medical Malpractice and Wrongful Death

If your loved one died as a result of a healthcare practitioner’s medical negligence, there will be two potential claims. The first claim will be the medical malpractice claim to pursue compensation for the damages and injuries your loved one suffered from the time they were injured until they died. This claim is what is known as a survival action as previously described. The wrongful death claim is the second claim, which is meant to compensate you for the losses you have suffered because of your loved one’s death.

For example, if a doctor missed your loved one’s malignant tumor and failed to diagnose them with early-stage lung cancer on a chest imaging study, their cancer might have progressed to a much worse stage by the time they were finally diagnosed. By the time of the delayed diagnosis, the cancer might have spread throughout your loved one’s body and have become terminal. If your loved one then survived for six more months during which they experienced tremendous pain, emotional distress, and a reduced quality of life before succumbing, your loved one would have had a viable malpractice claim if they had survived.

After your loved one’s death, your family would be entitled to pursue a wrongful death and survival action against the doctor who failed to properly diagnose your loved one’s cancer during the initial chest x-ray. Your loved one’s medical malpractice claim will survive their death and be available through a survival action.

Can You Sue a Doctor for Wrongful Death?

If a doctor’s medical negligence deviated from the standard of care and caused your loved one’s death, you might be able to file a wrongful death and survival action lawsuit against them. To file, you will need to be your loved one’s surviving spouse, child, or parent and will need to file within the two-year limitation period. While two years might sound like plenty of time, it’s best to speak to a lawyer as soon as possible. Investigating claims can take time, and waiting too long could leave you without the ability to recover compensation for your losses.

Wrongful Death Against a Hospital

Hospitals can sometimes be vicariously liable for medical negligence that occurs in their facilities. A hospital can be vicariously liable for the negligence of its employees. However, many doctors are not employed by hospitals but instead are independent contractors with admitting privileges. In that case, the hospital would not have vicarious liability but might have direct liability.

If a hospital engaged in directly negligent actions that contributed to your loved one’s death, you might have grounds to file a wrongful death action against the hospital. For example, if the hospital failed to rescind an incompetent doctor’s admitting privileges, the hospital could be liable for the doctor’s negligence even though the doctor was an independent contractor.

Hospitals will be vicariously liable for the medical negligence of the nurses, pharmacists, and other hospital staff they employ. If your loved one’s death was caused by the actions or inactions of hospital employees, you could pursue compensation from the hospital in a wrongful death lawsuit.

How an Attorney Might Help

In some situations, medical malpractice can result in a patient’s death. When this occurs, it might result in a wrongful death lawsuit. An experienced medical malpractice and wrongful death attorney can provide guidance to you throughout your legal case.

To support your wrongful death lawsuit, you will need to present evidence proving the standard of care and how the provider’s treatment deviated from it and caused your loved one’s death. You will also need to prove the damages you are seeking. An experienced lawyer can help to gather evidence and work with the right medical experts to support your claim.

Some of the types of legal assistance an attorney might provide include the following:

  • Gather your loved one’s medical records
  • Review the medical records with the help of a medical expert
  • Consult relevant experts
  • Advise you about the viability of your legal claim
  • Calculate the value of your claim
  • Draft and file the civil complaint
  • Negotiate with the insurance company to try to secure a fair settlement agreement
  • Fight for you in court
  • Litigate your case at a jury trial if a settlement can’t be reached
  • Explain the process so you understand what to expect as your case proceeds

Get Help From an Experienced Medical Malpractice and Wrongful Death Lawyer

If your loved one died because of the mistakes made by a medical professional during treatment, you should consult the experienced team at Raynes & Lawn. Our attorneys can help you understand the viability of your legal claim and the steps you should take. We provide free consultations and work on a contingency basis, so you won’t need to worry about paying money to learn about your rights. Contact us today to schedule a free case evaluation at 1-800-535-1797.

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