February 2013 MCARE Update
Pennsylvania Superior Court finds that the Medical Care Availability and Reduction of Error Act (MCARE) statute of repose is to be strictly construed and even if there is fraudulent concealment by a defendant it will bar an action that is untimely filed unless it results in the death of the victim.
The everyday layperson often is aware of the term “statute of limitations” – a legal term that determines the amount of time a plaintiff has to bring a cause of action in court. However, very few people are aware of something known as the “statute of repose.” A statute of repose is a time period after which a claim is forever barred, regardless of any tolling. There are many factors that may permit a statute of limitations to be tolled (like a clock that is stopped) which has the practical effect of allowing a claim to be filed beyond the time period normally allowed by law. Infancy is one such example. A statute of repose is an absolute date of which, whether there is a tolling of a statute or not, a claim must be filed by or it is forever barred.
In Osborne v. Lewis (2012 PA Super 283), a Dr. James Lewis performed eye surgery on plaintiff Osborne in 2000. In 2004 Osborne sought additional treatment due to decreased vision. At some point thereafter Osborne was advised by healthcare providers that he was losing his sight due to the 2000 procedure. In July 2007, Osborne sued Lewis for negligence.
The defendant argued that the lawsuit was barred by the statute of repose provided by MCARE, which was enacted in 2002. MCARE has a 7 year statute of repose – “from the date of the alleged tort or breach of contract.” The trial court held the opposite and denied the defendant’s motion for summary judgment because although the injury was more than 7 years old, the MCARE statute of repose did not become law until 2002, 2 years after Osborne’s surgery, and did not apply here. The Pennsylvania Superior Court held that because the plaintiff’s injuries arose from a 2000 surgery it is barred by the MCARE statute of repose.
A unanimous panel found that while Osborne’s injury occurred before the MCARE Act became law, the statute of repose still applied because his “cause of action did not arise until he suffered ascertainable negative effects of the eye surgery.” In this case, the plaintiff was not aware of any symptoms or effects until 2003, at the earliest. To put it simply, the case wasn’t viable until after MCARE Act was passed, thus the statute of repose within it is effective.
The court went on to reject the plaintiff’s argument that the defendant’s fraudulently concealed their negligence (which typically tolls the statute of limitations) because that is an exception to the statute of limitations, but not the statute of repose. The court held that the statute of repose “completely abolishes and eliminates the cause of action.” The court noted that the legislature has allowed for fraudulent concealment claims to toll the statute of limitations in wrongful death or survival cases but, it chose not to make an exception for run-of-the mill malpractice cases. As a result, the court would not do for this plaintiff what the legislature chose not to do, a harsh result indeed and one that will undoubtedly provide incentive for fraudulent concealment in the future. To read the full opinion please click here.