By Matthew Young
Medical malpractice in Pennsylvania revolves around the MCARE statute. MCARE stands for “Medical Care Availability and Reduction of Error” — an Act passed and signed into law in 2002.
MCARE requires that participating providers and hospitals carry a minimum of $500k in coverage per occurrence or claim. (We will get back to what exactly counts as an “occurrence.”) MCARE also refers to a special fund within the State Treasury that aims to “ensure reasonable compensation for persons injured due to medical negligence.” The MCARE fund pays claims in excess of the $500k in coverage that participating health care providers and hospitals are already required to buy themselves to insure against medical professional liability actions.
How does an injured patient get compensated? Here’s how it works: first, a provider has to tender their $500k. Only after they tender does the MCARE fund offer excess coverage. The excess coverage offered is an additional $500k. So if you sue a provider and a hospital, each self-insured with $500k, you can recover $1 million from the self-insurance, and on top of that, once both the provider and hospital tender, the MCARE fund can layer on an additional $500k for the provider and an additional $500k for the hospital. $500k from the provider + $500k from MCARE for the provider + $500k from the hospital + $500k from MCARE for the hospital = $2 million recovery. Simple enough, right?
Of course, I’ve skipped the entire process of prosecuting a claim. MCARE will not tender its funds unless a provider tenders first. And no provider will tender unless you know how to prosecute the case against that provider. It’s an expensive, fact-intensive, and highly arduous task. To learn more about the process of medical malpractice litigation in PA as well as the most salient malpractice verdicts and settlements, check out the website of Ross Feller Casey LLP
— a firm that keeps setting new records
for some of the largest medical malpractice verdicts in the nation.
Those large verdicts bring us to the question of what happens when a large jury verdict is unable to be covered by the provider’s insurance. Does the MCARE fund pay the rest? The answer is no. In a 2013 opinion by the Pennsylvania Supreme Court in Kinney–Lindstrom v. Medical Care Availability and Reduction of Error Fund, a physician failed to diagnose an intrauterine infection which, at two separate times with two separate infections, injured a set of twins. The plaintiff argued that the MCARE fund should pay $1 million “per occurrence” of malpractice, and because she was carrying twins, both of whom were separately injured by the same act, the fund should pay $2 million. The Supreme Court rejected this argument, stating that a single negligent act is considered as one occurrence — even though there exists multiple victims of that single act. In sum, the MCARE statute covers only single acts — despite multiple injured parties — and the MCARE fund is capped at a $1 million payout per occurrence as defined above.