2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

With respect to Plaintiff’s contention that Defendants’ actions “covering up” their allegednegligence supported a claim for punitive damages, the District Court held that any alleged“covering up” of negligence by Defendants was independent from the underlying tort claimsupon which Plaintiff’s recovery was premised. See id. at 259. Citing Pennsylvania law, theCourt noted that punitive damages are “merely an additional element of damages that may berecovered on an appropriate cause of action.” See id. at 258. Thus, guided by the Superior Courtand the Third Circuit, the District Court granted moving defendants’ motion to dismiss plaintiff’sclaim for punitive damages premised on the theory defendants acted to cover up their priornegligence. See id.(c)Collateral Source RuleMCARE also makes noteworthy changes to the collateral source rule, which prior toMCARE, often permitted double recovery of economic damages by plaintiffs. Under the newlaw, a plaintiff is precluded from recovering damages for past medical expenses or past lostearnings to the extent the loss is paid by public or private insurance prior to trial. 40 P.S. §1303.508(a). While the plaintiff has the option to introduce into evidence the total amount ofmedical expenses he actually incurred, his right to recover is limited to only the total of thoseexpenses for which the plaintiff is personally responsible. 40 P.S. § 1303.508 (b). Additionally,an insurer has no right of subrogation or reimbursement from a plaintiff’s tort recovery. 40 P.S.§ 1303.508(c). However, there are many kinds of payments that do not reduce recoverablemedical bills. Exceptions to the revised collateral source rule (and thus recoverable by theplaintiff) include life insurance benefits, pension and profit sharing payments, deferredcompensation arrangements, social security benefits, medical assistance payments (DPW), andpublic benefits paid under a program to which ERISA and other federal law preempts state law.40 P.S. § 1303.508(d)(1)-(4).(d)Calculation of DamagesUnder MCARE, juries are asked to separately enumerate a specific dollar amount for sixdifferent categories of potential damages (past and future medical expenses, past and future lostearnings, and past and future non-economic damages such as pain and suffering). 40 P.S. §1303.509(a). Juries have to specify future medical expenses for each year. 40 P.S. § 1303.509(a)(2)(i). For jurors, MCARE means that instead of reaching a consensus on one number totalingdamages for future medical expenses, they will have to reach an agreement on six differentcategories of damages.For causes of action arising after March 20, 2002, MCARE also changes the manner inwhich judgments including future lost earnings and future medical expenses are calculated.Instead of the former calculation method where future inflation was deemed to be equal to futureinterest rates, future lost income is to be reduced to present values based upon the return that theclaimant can earn on a reasonably secure fixed income investment. 40 P.S. § 1303.510. Expertevidence will still be admissible with regards to the effects of productivity and inflation overtime. Id. Further, evidence of future wage loss must be supported by expert testimony. SeeHartenstine v. Daneshdoost, 4 Pa. D. & C. 5th 282 (C.P. Lehigh 2008).99