Robert DUBOSE, Administrator of the Estate of Elise Dubose, Deceased v. Mark QUINLAN, Donna Brown, RNC, BSN, Albert Einstein Medical Center d/b/a Willowcrest, Willowcrest and Jefferson Health System Appeal of: Willowcrest Nursing Home, Albert Einstein Healthcare Network, Albert Einstein Medical Center d/b/a Willowcrest and Willowcrest Robert Dubose, Administrator of the Estate of Elise Dubose, Deceased, Appellee v. Willowcrest Nursing Home, and Albert Einstein Healthcare Network, Appellants
No. 21 EAP 2016 No. 22 EAP 2016
Supreme Court of Pennsylvania
November 22, 2017
173 A.3d 634
Argued: March 7, 2017
Rhonda Hill Wilson, Esq., Law Office of Rhonda Hill Wilson, P.C., for Appellee.
Rosalind T. Kaplan, Esq., Jarve Kaplan Granato Starr, LLC, for Appellee Amicus Curiae.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
JUSTICE MUNDY
In this appeal by allowance, we consider whether the Superior Court applied the correct statute of limitations for a survival action in a medical professional liability case. For the reasons set forth below, we conclude the statute of limitations for medical professional liability cases in the form of wrongful death or survival actions is two years from the time of the decedent‘s death. Accordingly, we affirm the judgment of the Superior Court.
The facts and procedural history of this medical professional liability action, asserting negligent care at a nursing home, are as follows. On July 25, 2005, Elise Dubose was admitted to Albert Einstein Medical Center (Einstein) after she fell in her home and sustained severe head injuries, including anoxia and a brain injury. On August 9, 2005, Mrs. Dubose was transferred and admitted to Willowcrest Nursing Home (Willowcrest), a division of Einstein, where she was diagnosed with Type II diabetes, respiratory failure necessitating a ventilator, chronic obstructive pulmonary disease, and several pressure ulcers (bedsores). On September 6, 2005, to treat
One of the ulcers, located at the sacral region of the spine, which Mrs. Dubose developed during her initial July 25, 2005 hospitalization, gradually increased in size from August 9, 2005 to July 2007. In July 2007, the sacral ulcer became infected with bacteria from contact with feces. This infection caused sepsis in Mrs. Dubose in September 2007, and she was admitted to Einstein with sepsis on September 12, 2007. On October 18, 2007, Mrs. Dubose died from sepsis and multiple pressure sores.
On August 13, 2009, Robert Dubose, as administrator for the Estate of Elise Dubose, filed a complaint against Willowcrest and Albert Einstein Healthcare Network (collectively Appellants). This complaint contained counts for negligence on behalf of Mrs. Dubose (survival action1), and a wrongful death action2 to compensate Mrs. Dubose‘s survivors. Additionally, on September 14, 2009, Robert Dubose commenced a second case by filing a praecipe to issue a writ of summons. On October 7, 2009, Mr. Dubose filed a complaint in the second case, asserting similar survival and wrongful death actions based on negligence, requesting punitive damages, and naming as defendants Mark Quinlan, Willowcrest‘s administrator; Donna Brown, Willowcrest‘s director of nursing; Einstein; Willowcrest; and Jefferson Health System. On October 18, 2010, the trial court issued an order consolidating the two cases pursuant to
In October 2012, the case proceeded to a jury trial, which resulted in a mistrial. A second jury trial was held from February 13, 2013 to March 13, 2013. On March 13, 2013, the jury returned a verdict in favor of Mr. Dubose and against Appellants in the amount of $125,000.00 on the wrongful death action and $1,000,000.00 on the survival action. The jury apportioned liability as 60% to Willowcrest, 25% to Einstein Healthcare Network, and 15% to Donna Brown. Further, on March 21, 2013, following a bifurcated punitive damages trial, the same jury awarded $875,000.00 in punitive damages against Appellants. The trial court granted the defendants’ post-trial motions in part in the form of judgment notwithstanding the verdict (JNOV), dismissing the action as against Donna Brown because she was an employee of Willowcrest, but the trial court did not reduce the amount of the verdict. The trial court denied the remaining post-trial motions for a new trial, for JNOV, and for remittitur, and entered judgment on the verdict. Regarding the subject of this appeal, the trial court explained that Mr. Dubose‘s survival action was timely filed pursuant to Section 513(d) of the Medical Care Availability and Reduction of Error Act (MCARE),
Relevant to this appeal, Appellants argued Mr. Dubose‘s survival claims were barred by the two-year statute of limitations for personal injury actions, which began to run at the time of Mrs. Dubose‘s injury in 2005.3 Appellants asserted that a survival action is distinct from a wrongful death action. A survival action is merely a continuation of a cause of action that accrued to the plaintiff‘s decedent while the decedent was alive, and the statute of limitations begins to run when the decedent is injured. On the other hand, a wrongful death action accrues to the decedent‘s heirs when the decedent dies of such an injury, and its statute of limitations begins to run at the decedent‘s death. Appellants asserted that once the statute of limitations expires on the decedent‘s cause of action, it cannot form the basis for a survival action following the decedent‘s death. Appellants’ Super. Ct. Brief at 12-14 (citing Baumgart v. Keene Bldg. Prods. Corp., 430 Pa.Super. 162, 633 A.2d 1189 (1993) (en banc)).
Applying these principles, Appellants argued that the statute of limitations for Mrs. Dubose‘s medical professional liability claim began when she sustained the pressure ulcer in 2005. The two-year statute of limitations on the survival actions expired in 2007, and therefore the survival actions Mr. Dubose filed in 2009 were time-barred.
Further, Appellants disputed the trial court‘s holding that the survival action was rendered timely by Section 513 of MCARE, which provides:
§ 1303.513. Statute of repose
(a) General rule.—Except as provided in subsection (b) or (c), no cause of action asserting a medical professional liability claim may be commenced after seven years from the date of the alleged tort or breach of contract.
(b) Injuries caused by foreign object.—If the injury is or was caused by a foreign object unintentionally left in the individual‘s body, the limitation in subsection (a) shall not apply.
(c) Injuries of minors.—No cause of action asserting a medical professional liability claim may be commenced by or on behalf of a minor after seven years from the date of the alleged tort or breach of contract or after the minor attains the age of 20 years, whichever is later.
(d) Death or survival actions.—If the claim is brought under
42 Pa.C.S. § 8301 (relating to death action) or8302 (relating to survival action), the action must be commenced within two years after the death in the absence of affirmative misrepresentation or fraudulent concealment of the cause of death....
Appellants contended the trial court misapprehended MCARE to revive causes of action that the statute of limitations
In the alternative, Appellants argued that even if the statute of limitations ran from the date of Mrs. Dubose‘s October 17, 2007 death, certain claims added in amended complaints after October 17, 2009 were time-barred. Appellants narrowly construed the Estate‘s survival action as solely based on Appellants’ negligent wound care, resulting in a pressure ulcer. Appellants contended that after the statute of limitations expired, the trial court permitted the Estate to amend its complaints to add new facts to support additional malpractice claims. According to Appellants, these newly added facts “alleged conduct of dietitians, nutritionists, physical therapists, occupational therapists, rehabilitation therapists, recreational therapists and social workers, relating to nutrition and hydration, diabetes, urinary tract infections, urinary incontinence, acute renal failure and anemia ....” Appellants’ Super. Ct. Br. at 21-22. Appellants alleged these later-added claims prejudiced them because they resulted in a verdict of $1,000,000.00 for pain and suffering.
In his Superior Court brief, Mr. Dubose emphasized that Mrs. Dubose was under constant care at Appellants’ facilities from August 2005 through October 2007, during which time she developed ten pressure ulcers and other conditions, such as dehydration. The cause of Mrs. Dubose‘s death was sepsis combined with the ten pressure wounds. Thus, Mr. Dubose contended that there were new, additional injuries to Mrs. Dubose continuously until the date of her death.4
Mr. Dubose maintained Section 513(d) of MCARE permitted him to bring the survival action within two years of Mrs. Dubose‘s death. In support, he stated that the Matharu Court held that the specific language of Section 513(d) controlled over the general statute of limitations in
Lastly, Mr. Dubose argued no new causes of action were added after the statute of limitations expired. Specifically, the language in paragraph 11 of the original complaint avers while a resident at Willowcrest, Mrs. Dubose sustained serious inju
A panel of the Superior Court unanimously affirmed the trial court‘s order. It held Mr. Dubose‘s survival action was timely under Section 513(d) of MCARE because Mr. Dubose commenced the action within two years of Mrs. Dubose‘s death. The Superior Court reasoning was contained in the following paragraph:
First, appellants claim that the survival action was filed beyond the statute of limitations. According to appellants, the statute began to run in 2005, when Mrs. Dubose developed a pressure wound. (Appellants’ brief at 14.) Appellants are mistaken. The MCARE Act2 clearly provides that wrongful death and survival actions may be brought within two years of death. Mrs. Dubose died on October 18, 2007, and the plaintiff filed two complaints, one in August 2009, and one in September 2009, which were ultimately consolidated. Both were filed within two years of the decedent‘s death. Therefore, the Survival Act claim was timely filed within the two-year statute of limitations.
The Superior Court then addressed Appellants’ issue that Mr. Dubose added causes of action in his amended complaints after the statute of limitations expired. Id. The court found Appellants waived this issue in the following analysis:
Appellants also complain that the plaintiff was allowed to add new causes of action in his amended complaints, outside the statute of limitations. (Appellants’ brief at 21.) This claim was not raised in appellants’ Rule 1925(b) statement, nor was it addressed by the trial court. Therefore, it is waived.
Pa.R.A.P. 1925(b)(4)(vii) ; Lazarski v. Archdiocese of Philadelphia, 926 A.2d 459, 463-464 (Pa. Super. 2007), appeal denied, 594 Pa. 714, 937 A.2d 446 (2007) (citations omitted).
Id. The Superior Court affirmed the judgment entered in the court of common pleas.
Appellants subsequently filed in this Court a petition for allowance of appeal, which the Court granted to consider the following question:
Do special and important reasons exist which mandate this Court‘s intervention, since the Superior Court improperly lengthened, potentially significantly, the statute of limitations applicable to survival actions in medical professional liability claims contrary to
42 Pa.C.S. §§ 5542(2) and 5502(A), all legal authority emanating from this Court, and the intent of the legislature when enacting the MCARE Act‘s statute of repose?
Dubose v. Quinlan, 635 Pa. 504, 138 A.3d 610, 610 (2016) (per curiam).
Based on this Court‘s focus on this issue, the parties have presented the following arguments. Appellants argue that the Superior Court‘s interpretation of Section 513(d) as a statute of limitations conflicts with precedent from this Court requiring survival actions to be commenced within
As a statute of repose, Appellants contend Section 513(d) does not affect the two-year statute of limitations in
In support of their interpretation of Section 513(d) as a statute of repose, Appellants explain that this Court has recognized that survival actions are not new, independent causes of action; instead, they permit the decedent‘s personal representative to pursue a cause of action that accrued to the decedent before death. Id. at 25 (citing Pastierik v. Duquesne Light Co., 514 Pa. 517, 526 A.2d 323, 326 (1987); Anthony v. Koppers Co., 496 Pa. 119, 436 A.2d 181, 185 (1981); Pezzulli v. D‘Ambrosia, 344 Pa. 643, 26 A.2d 659, 661 (1942)). Because the cause of action will accrue when the decedent knew or should have known of an injury, and a survival action is simply a continuation of such a cause of action, the statute of limitations for a survival action begins to run at the time of the underlying tort and does not “reset” upon the decedent‘s death. Id. (citing Pastierik, 526 A.2d at 326-27; Anthony, 436 A.2d at 183-84). Appellants assert that once the statute of limitations expires on the underlying tort, a survival action is likewise time-barred. Id. at 26-27 (citing Baumgart v. Keene Bldg. Prods. Corp., 430 Pa.Super. 162, 633 A.2d 1189 (1993) (en banc)). This is consistent with reading Section 513(d) as a statute of repose that sets the latest date that a survival action can be commenced. Id. at 36.
Applying these principles to this case, Appellants maintain that Mrs. Dubose‘s medical negligence cause of action accrued when her sacral ulcer developed in 2005, and Mrs. Dubose and Mr. Dubose were aware of the injury and attributed it to negligent care. Id. at 27. Further, because Mr. Dubose held Mrs. Dubose‘s power of attorney with the right to bring a lawsuit on her behalf, Appellants argue that his knowledge of Mrs. Dubose‘s injury should be imputed to Mrs. Dubose. Id. at 38-51. As this is an action for personal injury, it was subject to a two-year statute of limitations, which Appellants assert expired in 2007. Id. at 28. Because Mr. Dubose did not commence the survival action until 2009, Appellants conclude it was time-barred. Id.
Additionally, Appellants argue that the Superior Court erred in this case and in its previous decision of Matharu which also concluded that Section 513(d) is a statute of limitations that runs from the date of death. Id. at 29 (citing Matharu, 86 A.3d at 263). Appellants emphasize that this results in two different statutes of limitations for survival actions. Id. at 30. To illustrate, Appellants contemplate a decedent injured by a defective product in 2005, but who does not bring a lawsuit before her death in 2008. Id. In such a case, a survival action brought by the decedent‘s estate would be time-barred. Id.
Further, the Superior Court‘s interpretation of Section 513(d) contravenes the legislative purpose of MCARE, which Appellants assert was to curb “the medical malpractice crisis gripping this Commonwealth.”5 Id. at 32. The Superior Court‘s decision in this case results in the revival of a survival claim that accrued four years before decedent died, which Appellants argue is inconsistent with the General Assembly‘s intent in passing MCARE. Id. at 33-35. For these reasons, Appellants request that we reverse the decisions of the trial court and Superior Court and grant JNOV in favor of Appellants on the survival claim.6
In response to Appellants’ arguments, Mr. Dubose initially contends that the discovery rule applies in this case because Appellants admitted that Mrs. Dubose was brain damaged while in their care. Mr. Dubose‘s Brief at 16. Due to her mental disability, Mrs. Dubose was unable to investigate the nature and cause of her injuries. Id. Because Mrs. Dubose lacked the awareness of her injury and its cause, a medical professional liability claim did not accrue to her. Id. at 17 (citing Miller v. Phila. Geriatric Ctr., 463 F.3d 266 (3d Cir. 2006); Zeidler v. United States, 601 F.2d 527 (10th Cir. 1979)). Mr. Dubose argues Appellants’ reliance on Mrs. Dubose‘s power of attorney was waived because Appellants did not produce the entire power of attorney document until the case was on appeal to the Superior Court. Id. at 30. Therefore, the power of attorney was not part of the certified record, even though Appellants had possession of a power of attorney document since 2006. Id. at 31.7
Additionally, Mr. Dubose contends that while the sacral wound appeared in 2005, the complaint alleged a course of negligence against Mrs. Dubose that resulted in multiple injuries from 2005 to 2007, including additional pressure wounds, sepsis, hypertension, and acute renal failure. Id. at 19-20. Accordingly, Mr. Dubose contends this case involves more negligence than Appellants’ simplification of “one pressure sore that developed in 2005.” Id. at 20. Instead, Mr. Dubose notes that Mrs. Dubose died from septic shock, caused by multiple pressure wounds, and dehydration. Id.
Further, Mr. Dubose contends the plain language of Section 513(d) states that med-
In additional support of his plain language argument, Mr. Dubose points out that the most important distinction between a statute of repose and a statute of limitations is the act triggering the period of time in which a plaintiff must file a lawsuit. Id. at 25. Statutes of limitations begin to run when the cause of action accrues, which is usually the time a plaintiff is injured. Id. at 25 (citing
Applying this distinction to the plain language Section 513, Mr. Dubose argues Section 513(d) is a statute of limitations because it permits the plaintiff to bring a cause of action within two years of the victim‘s death, and Section 513(a) is a statute of repose because it limits the time in which to file a survival action to seven years from the date of the tort. Id. at 27. Mr. Dubose contends there is no conflict between these two subsections.8
We begin our analysis by noting that this case requires us to review the Superior Court‘s affirmance of the trial court‘s decision to deny Appellants’ motion for JNOV regarding Mr. Dubose‘s survival action. We review a trial court‘s grant or denial of JNOV for an abuse of discretion or an error of law. Reott v. Asia Trend, Inc., 618 Pa. 228, 55 A.3d 1088, 1093 (2012) (citation omitted). The question upon which we granted allowance of appeal—whether the Superior Court correctly interpreted the statute of limitations for survival actions under MCARE—is a matter of statutory interpretation. See Gilbert v. Synagro Cent., LLC, 634 Pa. 651, 131 A.3d 1, 17 (2015) (citations omitted). As statutory interpretation is a question of law, our standard of review is de novo and our scope of review is plenary. Reott, 55 A.3d at 1093 (citation omitted).
In interpreting a statute, this Court must “ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.”
To resolve this case, we must determine whether Section 513(d) is a statute of repose for survival and wrongful death actions or a statute of limitations that modifies the accrual date for survival actions. The United States Supreme Court has explained the distinctions between a statute of repose and a statute of limitations:
Statutes of limitations and statutes of repose both are mechanisms used to limit the temporal extent or duration of liability for tortious acts. Both types of statute can operate to bar a plaintiff‘s suit, and in each instance time is the controlling factor. There is considerable common ground in the policies underlying the two types of statute. But the time periods specified are measured from different points, and the statutes seek to attain different purposes and objectives....
In the ordinary course, a statute of limitations creates “a time limit for suing in a civil case, based on the date when the claim accrued.” Black‘s Law Dictionary 1546 (9th ed. 2009) (Black‘s); see also Heimeshoff v. Hartford Life & Accident Ins. Co., 571 U.S. 99, 134 S.Ct. 604, 610 (2013) (“As a general matter, a statute of limitations begins to run when the cause of action ‘accrues‘“—that is,
when ‘the plaintiff can file suit and obtain relief‘” (quoting Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., Inc., 522 U.S. 192, 201 (1997))). Measured by this standard, a claim accrues in a personal-injury or property-damage action “when the injury occurred or was discovered.” Black‘s 1546.... A statute of repose, on the other hand, puts an outer limit on the right to bring a civil action. That limit is measured not from the date on which the claim accrues but instead from the date of the last culpable act or omission of the defendant. A statute of repose “bar[s] any suit that is brought after a specified time since the defendant acted (such as by designing or manufacturing a product), even if this period ends before the plaintiff has suffered a resulting injury.” Black‘s 1546. The statute of repose limit is “not related to the accrual of any cause of action; the injury need not have occurred, much less have been discovered.” 54 C.J.S., Limitations of Actions § 7, p. 24 (2010) (hereinafter C.J.S.). The repose provision is therefore equivalent to “a cutoff,” Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 363 (1991), in essence an “absolute ... bar” on a defendant‘s temporal liability, C.J.S. § 7, at 24.
Although there is substantial overlap between the policies of the two types of statute, each has a distinct purpose and each is targeted at a different actor. Statutes of limitations require plaintiffs to pursue “diligent prosecution of known claims.” Black‘s 1546. Statutes of limitations “promote justice by preventing surprises through [plaintiffs‘] revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.” Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-349 (1944). Statutes of repose also encourage plaintiffs to bring actions in a timely manner, and for many of the same reasons. But the rationale has a different emphasis. Statutes of repose effect a legislative judgment that a defendant should “be free from liability after the legislatively determined period of time.” C.J.S. § 7, at 24; see also School Board of Norfolk v. United States Gypsum Co., 234 Va. 32, 360 S.E.2d 325, 328 (1987) (“[S]tatutes of repose reflect legislative decisions that as a matter of policy there should be a specific time beyond which a defendant should no longer be subjected to protracted liability” (internal quotation marks omitted)). Like a discharge in bankruptcy, a statute of repose can be said to provide a fresh start or freedom from liability. Indeed, the Double Jeopardy Clause has been described as “a statute of repose” because it in part embodies the idea that at some point a defendant should be able to put past events behind him. Jones v. Thomas, 491 U.S. 376, 392 (1989) (Scalia, J., dissenting).
One central distinction between statutes of limitations and statutes of repose underscores their differing purposes. Statutes of limitations, but not statutes of repose, are subject to equitable tolling, a doctrine that “pauses the running of, or ‘tolls,’ a statute of limitations when a litigant has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action.” Lozano v. Montoya Alvarez, 572 U.S. 1, 134 S.Ct. 1224, 1231-1232 (2014). Statutes of repose, on the other hand, generally may not be tolled, even in cases of ex-
traordinary circumstances beyond a plaintiff‘s control. See, e.g., Lampf, 501 U.S. at 363 (“[A] period of repose [is] inconsistent with tolling“); 4 C. Wright & A. Miller, Federal Practice and Procedure § 1056, p. 240 (3d ed. 2002) (“[A] critical distinction is that a repose period is fixed and its expiration will not be delayed by estoppel or tolling“); Restatement (Second) of Torts § 899, Comment g (1977).
Equitable tolling is applicable to statutes of limitations because their main thrust is to encourage the plaintiff to “pursu[e] his rights diligently,” and when an “extraordinary circumstance prevents him from bringing a timely action,” the restriction imposed by the statute of limitations does not further the statute‘s purpose. Lozano, 134 S.Ct. at 1231-1232. But a statute of repose is a judgment that defendants should “be free from liability after the legislatively determined period of time, beyond which the liability will no longer exist and will not be tolled for any reason.” C.J.S. § 7, at 24....
CTS Corp. v. Waldburger, 573 U.S. 1, 134 S.Ct. 2175, 2182-83, 189 L.Ed.2d 62 (2014) (parallel citations omitted); accord Vargo v. Koppers Co., Inc., Eng‘g Constr. Div., 552 Pa. 371, 715 A.2d 423, 425 (1998).
With these distinctions in mind, we discuss the nature of a survival action. “At common law, an action for personal injury did not survive death[.]” Pennock v. Lenzi, 882 A.2d 1057, 1064 n.8 (Pa. Cmwlth. 2005) (citing Moyer v. Phillips, 462 Pa. 395, 341 A.2d 441, 442-43 (1975)). The General Assembly, in
42 Pa.C.S. § 8302. Survival action
All causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants.
This Court has explained that a survival action is not an independent cause of action, but a continuation of a cause of action that accrued to the decedent, and the latest time when the statute of limitations runs is at the decedent‘s death.
The statute [of limitations] will, of course, begin to run prior to death with respect to injuries that the afflicted individual should reasonably have “discovered” while alive, and, for this reason, it was held in Anthony that the survival statute begins to run, “at the latest,” at death. Anthony, 436 A.2d at 183-184. The explanation for this lies in the nature of the survival cause of action, for, as stated in Anthony, “the survival statutes do not create a new cause of action; they simply permit a personal representative to enforce a cause of action which has already accrued to the deceased before his death.” Anthony, 436 A.2d at 185 (emphasis added) (footnote omitted). See also Pezzulli v. D‘Ambrosia, 344 Pa. 643, 647, 26 A.2d 659, 661 (1942).... [T]he “accrual” concept was expressly recognized in Anthony; hence, the statute of limitations was regarded as running, at the latest, from the time of death, unless it had earlier “accrued” through the fact that the victim knew, or should reasonably have known, of his injury.
...
In the context of survival actions, which, as heretofore discussed, merely permit a personal representative to pursue a cause of action that had already accrued to a victim prior to death, the Pocono International Raceway [v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468 (1983)] rule causes the statute of limitations to commence to run on the date when the victim ascertained, or in
the exercise of due diligence should have ascertained, the fact of a cause of action. In no case, however, can that date be later than the date of death; hence, the statute runs, at the latest, from death. Because death is a definitely ascertainable event, and survivors are put on notice that, if an action is to be brought, the cause of action must be determined through the extensive means available at the time of death, there is no basis to extend application of the discovery rule to permit the filing of survival actions, or wrongful death actions, at times beyond the specified statutory period.
Pastierik v. Duquesne Light Co., 514 Pa. 517, 526 A.2d 323, 326-27 (1987).
Having set forth the general difference between statutes of repose and statutes of limitations, and the nature of survival actions, we turn to the statute involved in this case. Specifically, we must interpret Section 513 of MCARE, which we set forth in its entirety:
§ 1303.513. Statute of repose
(a) General rule.—Except as provided in subsection (b) or (c), no cause of action asserting a medical professional liability claim10 may be commenced after seven years from the date of the alleged tort or breach of contract.
(b) Injuries caused by foreign object.—If the injury is or was caused by a foreign object unintentionally left in the individual‘s body, the limitation in subsection (a) shall not apply.
(c) Injuries of minors.—No cause of action asserting a medical professional liability claim may be commenced by or on behalf of a minor after seven years from the date of the alleged tort or breach of contract or after the minor attains the age of 20 years, whichever is later.
(d) Death or survival actions.—If the claim is brought under
42 Pa.C.S. § 8301 (relating to death action) or8302 (relating to survival action), the action must be commenced within two years after the death in the absence of affirmative misrepresentation or fraudulent concealment of the cause of death.(e) Applicability.—No cause of action barred prior to the effective date of this section shall be revived by reason of the enactment of this section.
(f) Definition.—For purposes of this section, a “minor” is an individual who has not yet attained the age of 18 years.
We begin by addressing the parties’ dispute over when the medical professional liability claim accrued to Mrs. Dubose. Appellants contend the action accrued in 2005, and under the general rule,
We hold that Section 513(d) declares that a survival action in a medical professional liability case resulting in death accrues at the time of death, not at the time of decedent‘s injury. This conclusion is based on the plain language of Section 513. First, Section 513(a) sets forth a seven-year statute of repose for medical professional liability claims. It provides that “no cause of action ... may be commenced after seven years from the date of the alleged tort or breach of contract.”
In contrast to the language of Section 513(a), Section 513(d) states that in a medical professional liability claim for wrongful death or survival, “the action must be commenced within two years after the death in the absence of affirmative misrepresentation or fraudulent concealment of the cause of death.”
Section 513(d) establishes a specific statute of limitations for survival and wrongful death actions in medical professional liability cases that prevails over the general statute of limitations for personal injuries actions contained in
If the General Assembly wanted to set a statute of repose of two years from the date of decedent‘s death, it could have provided, similar to Section 513(a), “no cause of action for wrongful death or survival may be commenced after two years from the death.” It did not; instead, it created a statute of limitations for medical professional liability cases resulting in death, which accrues at the time of decedent‘s death. Our interpretation is consistent with the Superior Court‘s conclusion in Matharu in 2014 that Section 513(d) sets forth a different statute of limitations for death cases, and the General Assembly has not amended Section 513 in response to Matharu. See Matharu, 86 A.3d at 263. Therefore, Mr. Dubose‘s survival actions were timely filed within two years of Mrs. Dubose‘s death.12
In conclusion, we hold that Section 513(d) of MCARE establishes a two-year statute of limitations for medical professional liability cases in the form of wrongful death or survival actions, which accrues at the time of the decedent‘s death. Thus, for all the above reasons, we affirm the judgment of the Superior Court.
Justices Todd and Dougherty join the opinion.
Justice Baer files a concurring and dissenting opinion.
Chief Justice Saylor files a dissenting opinion
Justices Donohue and Wecht did not participate in the consideration or decision of this case.
JUSTICE BAER, CONCURRING AND DISSENTING
I respectfully but vigorously dissent from the majority‘s radical departure from this Commonwealth‘s well-established jurisprudence providing that the statute of limitations for a medical professional negligence action commences when the cause of action accrued (i.e., when the plaintiff was injured by the professional negligence). According to the majority, where such an action is pursued by the deceased plaintiff‘s personal representative, the statute of limitations is extended, potentially for several years, until two years after the plaintiff‘s death, thereby granting the personal representative far more rights than the plaintiff would have possessed while alive. Consistent with Chief Justice Saylor‘s dissenting opinion, I find no support for this proposition in Section 513(d) of the Medical Care Availability and Reduction of Error Act (“MCARE Act“),
Notwithstanding my strong opposition to the majority‘s interpretation of Section 513(d), I agree with the majority that the present action was filed timely based on the trial court‘s alternative holding that the statute of limitations was tolled by the discovery rule until the decedent‘s death. Accordingly, I would affirm the Superior Court‘s decision, finding the action timely, on this alternative basis.
As the majority acknowledges, Section 513 of the MCARE Act,
(a) GENERAL RULE.—Except as provided in subsection (b) [relating to injuries caused by a foreign object left in the body] or (c) [relating to injuries of minors], no cause of action asserting a medical professional liability claim may be commenced after seven years from the date of the alleged tort or breach of contract. ...
***
(d) DEATH OR SURVIVAL ACTIONS.—If the claim is brought under
42 Pa.C.S. § 8301 (relating to [a wrongful] death action) or8302 (relating to survival action), the action must be commenced within two years after the death in the absence of affirmative misrepresentation or fraudulent concealment of the cause of death.
Consistent with the General Assembly‘s express designation of Section 513 as a statute of repose, the majority holds that subsection (a) is a statute of repose that precludes medical professional liability causes of action from being commenced more than seven years after the alleged tort, with exceptions not applicable here. See Majority Opinion at 646-47, 647 (providing that “Section 513(a) sets forth a seven-year statute of repose for medical professional liability claims;” “Section 513(a) bars the plaintiff‘s ability to sue regardless of whether the cause of action accrued, whether the injury occurred, or whether it was discovered.“). In construing the meaning of subsection (d), however, the majority divorces that provision from its legislative designation as a statute of repose. Moreover, notwithstanding that the statutory text does not reference “accrual” or “statute of limitations,” the majority interprets Section 513(d) as a statute of limitations that alters profoundly the traditional time of accrual of a surviving professional medical liability claim. I find this interpretation untenable.
Critical to determining the import of Section 513(d) is an understanding of the nature of a “survival action.” The Survival Act provides that “all causes of action or proceedings, real or personal, shall survive the death of the plaintiff. ...”
This Court has definitively declared when accrual occurs. We have held that because a surviving tort action brought by the personal representative of a deceased plaintiff is based upon the deceased plaintiff‘s injuries, the cause of action accrues (and the statute of limitations begins to run) when the plaintiff reasonably should have discovered his or her injuries; if the plaintiff could not have reasonably discovered the injuries while alive, the cause of action accrues, at the latest, at the time of plaintiff‘s death. Pastierik, 526 A.2d at 326; Anthony, 436 A.2d at 183. Naturally, the personal representative‘s claim mirrors the claim that the plaintiff would have pursued if alive, no more and no less.
In one fell swoop, the majority has eradicated this jurisprudence and holds that, pursuant to Section 513(d) of the MCARE Act (entitled “Statute of repose“), the statute of limitations for a medical professional liability claim brought by the deceased plaintiff‘s personal representative is no longer tied to when the plaintiff‘s cause of action accrued and no longer begins to run at the time the plaintiff reasonably should have discovered the alleged injury, but, instead begins to run at the time of plaintiff‘s death. The application of this holding to a fact pattern disparate from the one presented herein illustrates its absurdity. Assume that a physician negligently failed to diagnose a patient‘s cancer in 2010. Assume further that later in that same year, the patient became aware of the cancer and the physician‘s failure to diagnose the condition. It appears undisputed that under
Thus, the majority‘s interpretation of Section 513(d), contained within a statute of repose, through nothing short of sleight of hand, extends the statute of limitations from two to seven years, granting to the personal representative an independent cause of action that the deceased plaintiff could not have pursued personally in his own right had he remained alive.
By any stretch of the imagination, this could not be what the General Assembly intended when it enacted Section 513(d) of the MCARE Act. There is no language in Section 513(d) suggesting that the General Assembly intended to alter fundamentally the existing substantive law by creating an independent cause of action of the plaintiff‘s personal representative, which is unmoored to the plaintiff‘s injuries and is, instead, tethered only to the time of the plaintiff‘s death. The majority, in essence, has taken a legislative restriction on the filing of a cause of action, as demonstrated by the General Assembly‘s designation of the provision as a statute of repose, and, as revealed by the posed hypothetical, transformed it into an expansion of the time for filing the cause action by potentially more than threefold. The majority accomplished this task by interpreting language in the MCARE Act, which was enacted in response to perceived spiraling costs of medical malpractice claims. Pa. Med. Soc‘y v. Dep‘t of Pub. Welfare, 614 Pa. 574, 39 A.3d 267, 271 (2012); see also
Considering, as we must, the language of subsection (d) in the context in which it appears in Section 513 (“Statute of repose“) and in connection with the statutory scheme of the MCARE Act as a whole, it becomes clear that Section 513(d)‘s language that the surviving medical professional liability claim “must be commenced within two years after the death” merely codifies existing law. See Saylor, J., dissenting, at 652 (opining that “Section 513(d) does nothing more than codify aspects of the decisional law pertaining to the outside limits of accrual and tolling relative to survival actions“). Section 513(d) reiterates the long-established link between the plaintiff‘s cause of action and the personal representative‘s cause of action as it applies to the statute of repose, such that the personal representative‘s time constraints are commensurate with those of the plaintiff. Had the Legislature intended to lengthen significantly the time period in which surviving medical professional liability claims could be filed and thereby effectuate the dramatic transformation of the law that the majority purports, it would have done so expressly, and it would not have done so within a statute of repose.
Notwithstanding my fundamental disagreement with the majority‘s interpretation of Section 513(d), I agree that, in this case, the action was filed timely. As noted,
In summary, I would interpret Section 513(d) as a statute of repose, setting forth the maximum allotted time in which a personal representative of a deceased plaintiff may file a medical professional liability claim, i.e., within two years from death. As the two-year statute of limitations began to run when the decedent reasonably should have discovered her injuries and the record supports the trial court‘s conclusion that the decedent‘s condition rendered her unable to discover her injuries while alive, the decedent‘s personal representative had two years from the date of her death to file the instant action. Having filed the action within such two-year period, I agree with the majority‘s mandate to affirm the lower court‘s determination that decedent‘s survival action was filed timely.
CHIEF JUSTICE SAYLOR, DISSENTING
I respectfully dissent. From my point of view, Section 513(d) of the MCARE Act does not reflect an intention, on the part of the General Assembly, to fundamentally alter the nature and accrual of the survival cause of action. Rather, I believe that the Legislature designed, far more modestly, to simply codify the existing judicial treat-
As the majority explains, prior to the enactment of Section 513(d), this Court had determined that the discovery rule does not apply to extend the accrual of a survival cause of action past the date of death. See Pastierik v. Duquesne Light Co., 514 Pa. 517, 524-25, 526 A.2d 323, 327 (1987). As I read Pastierik, the Court also reasoned that a dynamic of the applicable statute of limitations served, essentially, as a statute of repose keyed to a “definitely established event“—namely, death—as opposed to consistently embodying the ordinary concept of accrual upon injury and inquiry notice. Id. at 522, 526 A.2d at 326 (quoting Anthony v. Koppers Co., 496 Pa. 119, 124-25, 436 A.2d 181, 184-85 (1981) (plurality)).
Significantly, the issue of fraudulent concealment was not before the Court in Pastierik, and, therefore, despite some broad language, see, e.g., id. at 524, 526 A.2d at 327 (“In no case ... can [the date of accrual] be later than the date of death[.]“), the issue of whether such concealment might operate to toll the limitations period remained an open one. See generally Morrison Informatics, Inc. v. Members 1st FCU, 635 Pa. 636, 647, 139 A.3d 1241, 1247 (2016) (“[T]he holdings of judicial decisions are to be read against their facts[.]” (citing Oliver v. City of Pittsburgh, 608 Pa. 386, 395, 11 A.3d 960, 966 (2011))). The Superior Court, however, has treated fraudulent concealment as an available exception after Pastierik. See, e.g., Kaskie v. Wright, 403 Pa. Super. 334, 337-38, 589 A.2d 213, 215 (1991); see also Krapf v. St. Luke‘s Hosp., 4 A.3d 642, 650 (Pa. Super. 2010).
Thus, and read according to its plain terms, Section 513(d) does nothing more than codify aspects of the decisional law pertaining to the outside limits of accrual and tolling relative to survival actions. Along these lines, I find that Section 513(d) hybridizes aspects of statutes of limitations and repose in exactly the same manner as had the case law.1 To the degree that reasoning backwards from labels (as opposed to forward from the explicit statutory direction) is appropriate, it is quite significant, to me at least, that the Legislature explicitly attached the term of art “Statute of repose” to Section 513(d).
As observed by other courts, “the terms ‘statute of repose’ and ‘statute of limitations’ have long been two of the most confusing and interchangeably used terms in the law.” Landis v. Physicians Ins. Co. of Wisconsin, 628 N.W.2d 893, 907 n.16 (Wis. 2001) (citing Francis E. McGovern, The Variety, Policy and Constitutionality of Product Liability Statutes of Repose, 30 AM. U.L. REV. 579, 582-87, 621 (1981)). Particularly in such a context, I believe the Court should attribute material significance to a specific legislative designation, especially one employing a clarifying term of art, Additionally, I find no evidence to support the majority‘s assertion that Sec-
Notably, as well, the majority‘s recharacterization of Section 513(d) results in substantial disharmony, including displacement of the applicable common law principles of accrual, as well as discord with the otherwise applicable statute of limitations. See Majority Opinion, at 646-48. In terms of accrual, under the common law a survival action is not a new cause of action at all but is a continuation of one which already accrued to the decedent prior to his death. See Pastierik, 514 Pa. at 523, 526 A.2d at 326 (quoting Anthony, 496 Pa. at 125, 436 A.2d at 185). Per the majority opinion, however, peculiar to the medical professional liability context, the action now only arises upon death and, therefore, can no longer be said to have previously belonged to the decedent. As to the displacement of the governing statute of limitations, I find the majority‘s approach to be inconsistent with the principles of statutory construction counseling that statutes pertaining to the same subject matter are to be construed together if possible. See
The majority also draws support from the Superior Court‘s previous determination in Matharu v. Muir, 86 A.3d 250 (Pa. Super. 2014) (en banc), that Section 513(d) is a statute of limitations, and the fact that the Legislature has not acted to prescribe differently after Matharu. See Majority Opinion, at 647-48. The applicable principle of statutory construction, however, pertains to construction by a court of last resort in circumstances where the Legislature has enacted subsequent statutes concerning the same subject. See
In summary, the pivotal question in this case is whether, in enacting a section of reform legislation pertaining to “repose,” the Legislature resolved to fundamentally alter the concept of accrual, thus overriding the otherwise applicable statute of limitations and effectively extending various actions. In my view, Section 513(d) manifests no such intent.
Notes
...
(d) Death or survival actions.—If the claim is brought under
Dubose v. Quinlan, 125 A.3d 1231, 1238 (Pa. Super. 2015) (footnote omitted). The majority‘s interpretation of Section 513(d) also creates an unnecessary distinction between the accrual of different types of survival claims, whereby survival claims based upon professional medical negligence accrue at the time of death, while other survival claims, such as those alleging a defective product, accrue at the time of injury. Moreover, as Appellants explain, Matharu‘s reasoning rests, in part, on the incorrect premise that the statute of limitations in Section 5524(2) of the Judicial Code and the prescription of Section 513(d) of the MCARE Act are entirely coterminous. Compare Matharu, 86 A.3d at 263 (“[T]he statute of limitations set forth in subsection [513(d)] is the exact same statute of limitations that was already applicable[.]“), with Pastierik, 514 Pa. at 523, 526 A.2d at 326 (explaining that the statute of limitations pertaining to survival actions encompassed a concept of accrual upon injury and inquiry notice, which is not reflected on the face of Section 513(d)); see also Brief for Appellants at 30 (observing that Matharu “overlooked the fact that, under
§ 5524. Two year limitation
The following actions and proceedings must be commenced within two years:
...
(2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.