Overcoming Barriers to Recovery

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This articles explores some of the limitations in place in Pennsylvania, regarding lawsuits for: (1) Vehicle Accidents, (2) Medical Malpractice, and (3) Claims Against Governmental Entities.

 

Motor Vehicle Accidents - Limited Tort

The Pennsylvania legislature decided that, in order to bring a claim for pain and suffering from a car accident, the injured person must have elected full tort liability coverage at the time of the accident.  Otherwise, the injured person is deemed to be "limited tort" and only able to recover for lost wages and out of pocket costs (but not pain and suffering).

There are, however, numerous exceptions to -- and exclusions from -- the limited tort rule.  A limited tort victim is still entitled to recover for pain and suffering when one of these automatic Limited Tort Exceptions applies:

1. A driver who caused the accident was charged with DUI .

2. The accident was caused by the operator of a motor vehicle that is registered in a different state than PA.

3. The accident occurred when the plaintiff was not operating a privately owned vehicle.  

4. One is deemed to have elected full tort unless he waives it, meaning, unless one is a position to purchase insurance in Pennsylvania and expressly elects limited tort, the full tort option will apply.

You may also recover pain and suffering (despite the limited tort election) if:

1. You are a passenger in any type of commercial vehicle (bus/train, municipal transportation, taxi, tractor trailer);

2. You were a pedestrian struck by a vehicle;

3. You were operating a motorcycle;

4. You were operating a bicycle at the time of the accident.

Perhaps the most important exception to "limited tort" is the serious injury exception.  This pertains to injuries that involve death, disfigurement,* or permanent loss of a bodily function. 

 

 

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Medical Malpractice

Pennsylvania does not impose a cap on compensatory damages in medical malpractice cases.  However, punitive damages against a doctor or hospital cannot exceed 200 percent of compensatory damages absent intentional misconduct. Pa. Stat. Ann. tit. 40, § 1303.505(d) (Westlaw 2007). This is pursuant to the Pennsylvania M-CARE Act that went into effect in Pennsylvania in 2003.

 

 Suits Against Governmental Entities

It's hard to sue the king or, nowadays, the "sovereign" city, state, or federal government.  There is a concept called "sovereign immunity," which prevents suits against government unless the case falls within an exception to immunity.  The exceptions to immunity at the state level (Commonwealth of PA) are:

(1)  Vehicle liability (A government agent/employee operating a vehicle for the state.) 

(2)  Medical-professional liability 

(3)  Care, custody or control of personal property  (This is a big exception.)

(4)  Commonwealth real estate, highways and sidewalks. 

(5)  Potholes and other dangerous conditions.

(6)  Care, custody or control of animals.

(7)  Liquor store sales

(8)  National Guard activities.

(9)  Toxoids and vaccines.

Even if no immunity exists, there are limits to the total amount of recovery against the Commonwealth or a municipality in Pennsylvania.  At present, there is a cap on damages pursuant to the Political Subdivision Tort Claims Act for damages recoverable against local governmental agencies. The cap is $250K per party, or 500K total, if there are multiple parties.

In December of 2011, however, a Bucks County judge has opined that the constitutionality of a $500,000 statutory cap on damages owed by Pennsylvania governmental entities be reviewed in a potential test case. That case was Zauflik v. Pennsbury School District.  There, a jury awarded Ashley Zauflik $14 million for the loss of her leg and other injuries after being run over by a bus owned and operated by her school district.

Bucks County Common Pleas Court Judge Robert J. Mellon opined that he was constrained by appellate precedent in Pennsylvania to mold the verdict so that Zauflik would only be awarded $500,000 to be shared with other plaintiffs who also were injured by the bus.

The issue on appeal will be an equal-protection theory that the statutory cap violates Article I, Section 26, of the state constitution.  The provides:  “neither the commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right.”

However, it remains to be seen whether the appellate courts will do away with the cap on damages against governmental entities in Pennsylvania.  Pennsylvania has not placed a cap on all claims for pain, suffering, or punitive damages.

Our Pittsburgh civil litigation lawyers provide a free consultation about all the issues referenced above.

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New Number: 412.342.0992