Medical Malpractice Funding in Pennsylvania

Pennsylvania medical malpractice claims are subject to the two-year limitations period for personal injury in 42 Pa.C.S. section 5524(2). The discovery rule is judge-made rather than statutory: under Fine v. Checcio, 870 A.2d 850 (Pa. 2005), the period does not begin until the plaintiff knows, or reasonably should know, of the injury and its cause. The MCARE Act adds a seven-year statute of repose in 40 P.S. section 1303.513, measured from the negligent act, with exceptions for a retained foreign object and for injuries to minors, who have until the twentieth birthday to file. Wrongful death and survival claims must be filed within two years of death. Pennsylvania has no presuit notice or screening requirement, but a certificate of merit from an appropriate licensed professional must be filed with the complaint or within 60 days after it under Pa.R.C.P. 1042.3; failure to file leads to a judgment of non pros.

Modified comparative negligence with a 51 percent bar under the Comparative Negligence Act, 42 Pa.C.S. section 7102. A med-mal plaintiff whose negligence is greater than the combined negligence of the defendants recovers nothing; otherwise the award is reduced proportionally. Under the Fair Share Act, a defendant found less than 60 percent liable pays only its own share, which matters in multi-defendant hospital cases.

Pennsylvania has no cap on non-economic or economic damages in medical malpractice, and cannot enact one by ordinary legislation: article III, section 18 of the Pennsylvania Constitution prohibits the General Assembly from limiting the amount recoverable for injuries resulting in death or injury, other than in workers' compensation. Instead of a cap, the MCARE Act created the Medical Care Availability and Reduction of Error Fund, a state-administered excess layer that pays claims above a participating provider's primary professional liability coverage. The MCARE Fund is a coverage mechanism, not a damages limit; it affects collectability of a large verdict, not the amount a jury may award. Punitive damages against a health care provider are limited under 40 P.S. section 1303.505 to 200 percent of compensatory damages, with 25 percent of any punitive award paid to the Fund.

Pennsylvania provides delay damages under Pa.R.C.P. 238, which function as mandatory prejudgment interest in bodily injury and wrongful death actions. Delay damages are added to the compensatory award at the prime rate plus one percent, running from one year after the defendant was served with the complaint until the verdict, excluding periods of plaintiff-caused delay and any period after a written settlement offer that the verdict did not exceed by more than 25 percent. Delay damages are not awarded on punitive damages.

Medical malpractice actions in Pennsylvania are now governed by the general venue rule in Pa.R.C.P. 1006. From 2003 through 2022, a med-mal-specific rule required filing only in the county where the cause of action arose; the Supreme Court of Pennsylvania rescinded that restriction effective January 1, 2023, returning Rules 1006, 2130, 2156, and 2179 to their pre-2003 form. A med-mal action may now be filed in any county where a defendant may be served, where the cause of action arose, where the transaction or occurrence took place, or where a corporate defendant regularly conducts business.

Pennsylvania has no dedicated consumer litigation funding statute. No statutory cap identified.

Why is the 2023 venue change significant for Pennsylvania med-mal funding?

Since January 1, 2023, med-mal plaintiffs may file under the general venue rule rather than only where the malpractice occurred. Cases against health systems that do business in Philadelphia or Allegheny County can now be filed there, and venue is now one of the factors underwriting reviews with counsel.

The 2003 restriction was adopted to curb filings in Philadelphia; the Supreme Court's rescission returned Rule 1006 to its earlier form. Where a case is filed affects trial timing and the defense's settlement posture. Underwriting does not assume a result from venue, but it does account for the docket and calendar of the county where the case will be tried.

How does the MCARE Fund affect collectability of a large Pennsylvania verdict?

Participating providers carry primary coverage, and the MCARE Fund pays the layer above it up to its statutory limit. For a catastrophic claim this makes a large recovery collectible without a policy-limits negotiation, which is part of why uncapped Pennsylvania verdicts are underwritten on the damages record.

The Fund is a coverage mechanism, not a damages cap, and the constitutional bar in article III, section 18 prevents the legislature from limiting the award itself. The Fund participates in settlement decisions on claims that reach its layer, which adds a party to negotiations. Funders confirm with counsel whether the defendants are Fund participants and where the primary limits sit.

What role does the certificate of merit play in timing a Pennsylvania advance?

Rule 1042.3 requires a licensed professional's certificate within 60 days of the complaint, or the defendant may enter a judgment of non pros. A filed, compliant certificate confirms that an appropriate expert supports the standard-of-care theory, and it is the earliest document underwriting looks for.

Unlike Georgia or New Jersey, Pennsylvania does not require the expert's substantive opinion at the certificate stage — only the attorney's certification that one exists. The expert's report comes later in discovery, and MCARE section 512 imposes specialty and board-certification requirements on who may testify. Delay damages under Rule 238 start running one year after service, which the funder tracks.