Osborne v. Lewis
59 A.3d 1109
| Pa. Super. Ct. | 2012Background
- Dr. Lewis performed LASIK on Osborne on June 1, 2000.
- Osborne developed visual deterioration beginning in late 2003 or early 2004.
- Osborne filed medical malpractice suit on July 24, 2007 against Dr. Lewis, Advanced Laser Vision, P.C., and Dr. Fabriziani.
- MCARE Act's seven-year statute of repose, 40 P.S. § 1303.513, became effective March 20, 2002.
- Trial court denied summary judgment, ruling MCARE repose did not apply due to tort date preceding Act.
- Appellants appealed; this Court held MCARE repose applies to actions arising after March 20, 2002.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does MCARE Act apply to pre-2002 torts arising after 2002? | Osborne argues action arose after 2002 so repose applies. | Appellants contend accrued injury occurred before 2002; repose may not apply. | Yes, MCARE repose applies to actions arising after 2002. |
| Whether fraudulent concealment tolling applies to MCARE repose | Fraudulent concealment tolls should extend the repose period. | No tolling for general repose; fraudulent concealment not in §1303.513(a). | Fraudulent concealment tolling does not apply to the general MCARE repose statute. |
Key Cases Cited
- Matharu v. Muir, 29 A.3d 375 (Pa. Super. 2011) (death/survival action toll under MCARE addressed post-2002 injuries)
- Fletcher v. Pa. Prop. & Cas. Guar. Ass'n, 985 A.2d 678 (Pa. 2009) (fraudulent concealment not present in general repose; informs statutory interpretation)
- Simmons v. Pacor, Inc., 543 Pa. 664 (Pa. 1996) (injury requires physical manifestation for accrual)
- Ayers v. Morgan, 397 Pa. 282 (Pa. 1959) (injury accrues when injury becomes reality, not when act occurs)
- Goll v. Ins. Co. of North America, 611 A.2d 1255 (Pa. Super. Ct. 1996) (insurer's implied tolling not applicable to MCARE repose; distinguish from fraud tolling)