In Pennsylvania, regardless of when a medical injury was discovered, plaintiffs had only seven years from the actual causation of injury to bring forth a medical malpractice claim. The so-called limit to the discovery rule no longer applies.
On October 31, 2019 the Pennsylvania Supreme Court ruled that the seven-year statute of repose provided for in the state MCARE statute is unconstitutional. In doing so, the court reversed a Pennsylvania Superior Court decision that found the statute of repose within MCARE barred all claims against medical professionals that were discovered more than seven years later. In an opinion by Justice Mundy, the state’s highest court overturned its appellate court in a landmark decision. [i]
Traditionally a statute of limitations begins to toll from the date of the injury or discovery of such injury. The statute of repose is slightly different from a traditional statute of limitations. A statute of repose measures the amount of time from the last action taken by a defendant that leads to culpability regardless of when it is discovered. So, if a patient had a cognizable claim from a previous medical error that occurred five years prior, so long as they were unaware of the injury until five years later, then the statute of limitations did not toll. However, if they discovered this error eight years later, while the statute of limitations did not toll, the statute of repose would have barred recovery.
In this case, the plaintiffs brought a suit twelve years after the causation of injuries that triggered this lawsuit. A mother suffered from a genetic condition called Alpha-1 Antitrypsin Deficiency (AATD). This resulted in her not producing enough of a liver-synthesized protein that protects the lungs from damage. She needed a liver transplant, but she was not a candidate for a cadaver liver and thus her son volunteered a lobe of his liver. In the pre-donation process, her son was screened for AATD, and tested positive. However, the results of this screening were not shared with him and he underwent the liver transplant surgery-which he would not have done if he had been told he had AATD.
Twelve years later, the son, his mother, and her husband brought forth a suit for battery, lack of informed consent, medical malpractice, and loss of consortium. The defense raised the affirmative defense of the statute of repose tolling nearly five years prior in response to appellants’ complaints and filed a motion for judgment on the pleadings. Both the trial court and superior court found that the statute of repose did indeed bar hearing this claim. The case was appealed to the Pennsylvania Supreme Court to decide whether the statue of repose, as applied here, wass constitutional.
The appellants (previous plaintiffs) relied on a constitutional argument that the MCARE’s statute of repose could not survive intermediate scrutiny because the statute of repose does not apply to lawsuits arising from the leaving of foreign objects in the body. [ii] They argued that this discriminated against certain claims which violates the state constitution which guarantees open courts to remedy any and all injuries. [iii] The court agreed that the right to a remedy is an important right— albeit not a fundamental right triggering strict scrutiny—and analyzed the statute of repose under intermediate scrutiny. Intermediate scrutiny places the burden on the proponent of the statute to show that the statute is an appropriate way to accomplish its interest.
In its analysis, the court determined that the government interest in controlling the costs of medical malpractice insurance and medical care to be an important interest. The prevailing argument in support of a statute of repose is that it provides a level of certainty that after a set period of time medical professionals need not worry about previous errors. However, the court reasoned that the appellees (UPMC) failed to show that the seven-year statute of repose had any substantial connection to limiting insurance costs. Further because the statute of repose exempted claims of foreign objects from being subject to a limit, the court articulated that this was an unconstitutional discrimination of claims and not what the remedy clause was meant to accomplish.
The dissent, written by Justice Wecht argued that this was a bad precedent of judicial legislation and that the court was incorrectly disregarding the legislative body’s decision and intent to overturn a decades’ old law. This dissent also argued for a level of scrutiny “heightened scrutiny” that is between that would allow for non-fundamental rights to get a similarly high-level of deferment and presumption of merit. The majority did not adopt this line of analysis.
ADDENDUM:
On November 13, 2019, defendant UPMC requested that this decision be reargued. In a brief filed by its attorney, UPMC argued that the economic justification argument for the statute of repose issue was waived by the plaintiffs. Thus, the court brought up this argument on its own accord and did not afford the defense an opportunity to argue its position on this issue. Defense counsel further contended that the decision is in direct conflict with a 2017 Pennsylvania Supreme Court decision that upheld MCARE’s statute of limitations without evidence of legislative intent. Justice Mundy—who authored both the 2017 opinion and this opinion—seems to have relied upon the argument she used to uphold the statute of limitations in order to strike down the statute of repose.
SECOND ADDENDUM:
On January 31, 2020, the Pennsylvania Supreme Court rejected UPMC’s application for reargument; leaving its precedential October 2019 decision in place. Justice David Wecht penned a strong dissenting opinion of the court’s decision to not rehear arguments in the case. He argued that the ruling was misguided, confused about the law, and rehearing arguments would have given the court an opportunity to confirm its understanding or reverse its precedential decision. Wecht added that the state supreme court’s decision, “ignored precedent, misinterpreted the remedies clause of the Pennsylvania Constitution, and incorrectly adopted (and then misapplied) the intermediate scrutiny test.”
[i] Yanakos v. UPMC, 10 WAP 2018 (Pa. 2019)
[ii] 40 P.S. § 1303.512(b)
[iii] PA. CONST. art I § 11.