Bulebosh v. Flannery, 91 A.3d 1241

Plaintiffs Denise and Michael Bulebosh filed a medical negligence action against Dr. Flannery on Feb. 2, 2005, alleging negligent STA-peg surgeries in 1985 and 1989, and later removal failures in 1992 and 2000, plus lack of informed consent for 1985 and 1989 procedures.
Plaintiffs learned of potential negligence on Aug. 8, 2003, after a surgery by Dr. Hasselman.
Dr. Flannery moved for summary judgment premised on MCARE’s statute of repose (7-year limit), asserting bar of claims arising from pre-2002 torts.
The trial court denied summary judgment in 2011; in 2013 it denied renewed motion and certified an appeal as collateral order.
This Court reviews de novo whether MCARE’s statute of repose applies to pre-2002 torts where injury manifestations occurred after the torts.
The court ultimately held MCARE’s statute of repose did not apply because both negligent acts and ascertainable injuries occurred before the statute’s March 20, 2002 effective date.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does MCARE’s seven-year statute of repose bar claims arising from 1985–1989 torts filed in 2005?	Bulebosh contends cause of action arose pre-2002 and repose cannot apply.	Flannery argues action accrues at harm discovery, with pre-2002 torts subject to repose.	No; repose does not apply because both torts and ascertainable injuries predated the effective date.
When does a medical professional liability action arise for MCARE repose purposes — at injury manifestation or at negligent act?	Osborne-like view: action arises upon ascertainable injury.	Flannery sticks with accrual at injury, but seeks pre-2002 application.	Court adopts Osborne/Matharu framework: arise when discernible injury occurs post-effective date; here not applicable.
Do Osborne and Matharu require the action to arise after the statute’s effective date to trigger repose?	Yes, because post-MCARE manifestation would trigger repose.	No, the pre-2002 acts with later injuries could be subject to repose.	Osborne and Matharu control; in this case, both act and injury predated 2002, so repose does not bar here.
Did the injury manifestation occur after or before 2002 in this case?	Injuries manifested with 1992 and 2000 removals, after acts; argues repose may apply.	Not decisive since acts and harms predate 2002.	Injury manifestations occurred before 2002; repose inapplicable.

Osborne v. Lewis, 59 A.3d 1109 (Pa. Super. 2012) (collateral-order appeal on MCARE repose; cause of action arises with ascertainable injury after pre-2002 torts)
Matharu v. Muir, 29 A.3d 375 (Pa. Super. 2011) (en banc; post-MCARE framework for accrual and repose interplay)
Focht v. Focht, 613 Pa. 48, 32 A.3d 668 (2011) (accrual requires actual injury for limitations; linked to medical liability)
Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996) (absence of harm means no actionable injury)
Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959) (cause of action accrues when injury is discernible)