There has been surprisingly little appellate authority interpreting the Medical Care Availability and Reduction of Error Act since its passage in 2002. In 2012, I had an opportunity to try a medical negligence case to verdict on behalf of a severely brain-damaged baby with enormous projected future medical bills. The case, Nicholson-Upsey v. Touey, Philadelphia Court of Common Pleas, Nov. Term, 2009, No. 04525, resulted in a very substantial verdict for the plaintiff. The trial court issued a lengthy and detailed opinion denying the liable defendant’s motion for a new trial and granting the plaintiff’s motion to assess attorney fees on damages for future medical specials. An appeal to the Superior Court was filed, the issues were fully briefed and the case was settled at mediation just days before the Superior Court was scheduled to hear oral argument. Much of the content of this article comes from my experience handling the case.
Recovery of Medical Specials Pre-MCARE
Prior to passage of the MCARE statute in 2002, future medical specials in medical negligence cases were recovered in the same manner as in other personal injury actions in the state. Future medical needs were proven at trial, typically through a life care planner or another medical expert, and then the present value of the cost of such care was presented, usually by an economic expert. The jury would be asked to award a lump sum that would be sufficient to pay for future medical specials as they were to arise. Under the Pennsylvania Supreme Court’s holding in Kaczkowski v. Bolubasz, 491 Pa. 562, 421 A.2d 1027 (1980), the “total offset” method was utilized to account for inflation and net present value.
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