Tuesday, April 25, 2023

Amendment To Add New Claim To Med Mal Case Not Allowed After Statute of Limitations Had Expired

In the case of Kersey v. Pisano, No. 798 EDA 2022 (Pa. Super. March 7, 2023 Sullivan, J., Panella, P.J., Bender, P.J.E.) (Op. by Sullivan, J.)[Non-Precedential], the court affirmed in part and reversed in part relative to post-trial motions filed in a medical malpractice case after a verdict was entered in favor of a Plaintiff.

In this case, the Pennsylvania Superior Court found that, where the Plaintiff’s Complaint made allegations solely about prostate cancer, it was an error by the trial court to allow an amendment of the Complaint so as to permit evidence to be presented at trial on a claim for liver cancer, where that claim was only asserted after the two (2) year statute of limitations had run.

The court reaffirmed the general rule that amendments to a Complaint to add new causes of action after the statute of limitations is not permitted.

The court additionally noted that, where an expert report includes a new cause of action on behalf of a Plaintiff, the trial court may not permit the Plaintiff to introduce that opinion after the applicable statute of limitations has run.

The court found that there was no possible reading of the Complaint that could support a claim that the allegations of liver cancer were contained therein so as to allow the desired amendment or claims to proceed.

In this matter, because the trial court utilized a special verdict questionnaire that allowed the jury to reach separate verdicts for the two (2) types of cancer, only the jury verdict relative to the claim of medical malpractice related to the liver cancer would be reversed.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney James M. Beck of the Philadelphia law office of the Reed Smith law firm.

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