LINDA REIBENSTEIN, AS THE ADMINISTRATRIX OF THE ESTATE OF MARY ANN WHITMAN, DECEASED v. CHARLES BARAX, M.D.; AND MERCY HOSPITAL, SCRANTON; LINDA REIBENSTEIN, AS THE ADMINISTRATRIX OF THE ESTATE OF MARY ANN WHITMAN, DECEASED v. PATRICK D. CONABOY, M.D.; AND COGNETTI & CONABOY FAMILY PRACTICE, P.C.
No. 32 MAP 2021
IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT
December 12, 2022
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ. [J-86-2022]. ARGUED: October 26, 2021. RESUBMITTED: November 15, 2022.
Appeal from the Order of the Superior Court at No. 1624 MDA 2019 dated July 30, 2020, reconsideration denied October 5, 2020, Vacating the Order of the Lackawanna County Court of Common Pleas, Civil Division, at No. 2016-01716 dated August 29, 2019 and Remanding.
JUSTICE WECHT
We have long recognized a material distinction between cause and manner of
MCARE § 513(d) provides that its two-year limitations period on death actions, which commences upon death, will be tolled when there is an affirmative misrepresentation or fraudulent concealment of the cause of death.4 Appellee Linda Reibenstein undisputedly brought her claims against Appellant Patrick Conaboy, M.D., after the two-year period had run, and the death certificate undisputedly and correctly noted the medical cause of Reibenstein‘s decedent‘s death. The trial court ruled that the phrase “cause of death” refers specifically and only to the direct medical cause of death. Accordingly, it granted summary judgment to Dr. Conaboy under Section 513(d). The Superior Court reversed, interpreting “cause of death” more broadly to encompass considerations associated with the manner of death (i.e., legal cause) in the sense alluded to above.5 We hold that MCARE‘s tolling provision cannot bear the breadth of that reading. Accordingly, we reverse.
Decedent Mary Ann Whitman consulted with Dr. Conaboy on April 12, 2010, complaining of a persistent cough, fever, and lower back pain. Dr. Conaboy ordered an aortic duplex ultrasound scan and a CT scan of Whitman‘s abdominal area, both of which were performed on April 23, 2010. Charles Barax, M.D., a radiologist, reviewed the scans, identifying what he characterized as a poorly visualized aortic aneurysm. Dr. Barax‘s report indicated that “Dr. Conaboy was contacted with this study [and] was read [sic] with the findings” and that the report was provided to Dr. Conaboy.6 Dr. Conaboy scheduled Whitman to meet with a vascular surgeon on May 10, 2010, but Whitman died when the aneurysm ruptured on April 28, 2010. The parties do not dispute that Whitman‘s death certificate correctly identified the rupture as her cause of death.
On April 15, 2011, Reibenstein, administratrix of Whitman‘s estate, brought a wrongful death and survival action against Dr. Barax and Mercy Hospital Scranton (collectively, “Dr. Barax”). The thrust of the suit was that Dr. Barax had misread
Discovery progressed, but in fits and starts over several years. The substance and timing of Dr. Barax‘s deposition is central to this case. The trial court indicated that Reibenstein “made several unsuccessful attempts to schedule Dr. Barax‘s deposition,” and that the deposition was taken only after the court intervened.8 Dr. Conaboy observes that Reibenstein did not “officially notice” Dr. Barax‘s deposition until May 22, 2013, well after Section 513(b)‘s two-year time limit had run as to Dr. Conaboy.9 Three notices followed, with court intervention evidently sought only later in this period, over a year after the first notice was rebuffed. For her part, Reibenstein observes that she filed requests for written discovery “[i]mmediately after” filing her complaint against Dr. Barax; that it took motions to compel and for sanctions before Dr. Barax responded; and that, “[t]hrough no fault of Ms. Reibenstein, during the course of Dr. Barax‘s months of obstructionist actions,” the statute of limitations expired as to Dr. Conaboy.10
Reibenstein finally deposed Dr. Barax nearly five years after Whitman‘s death, almost four years after filing suit against him. During that February 2015 deposition, Dr. Barax indicated that he spoke personally with Dr. Conaboy on the day that the CT scan was performed on Whitman. In that conversation, according to Dr. Barax, he specifically informed Dr. Conaboy both of the presence of an abdominal aortic aneurysm and, importantly, explained that the poor quality of the visualization prevented him from determining whether the aneurysm was rupturing or bleeding.11 He “further testified that he conveyed to Dr. Conaboy his concerns of a potential rupture.”12
Based upon this testimony, but over a year after the deposition, on March 1, 2016, Reibenstein filed a new wrongful death and survival action against Dr. Conaboy and his associated practice (collectively, “Dr. Conaboy”), which the trial court consolidated with the Dr. Barax action.13 This second suit was premised upon Dr. Conaboy‘s alleged failure to act in light of more detailed information he received in conversation with Dr. Barax, the full substance of which, in Reibenstein‘s view, was not fully explained in Dr. Conaboy‘s response to written discovery. Dr. Conaboy ultimately sought summary judgment on the basis that MCARE‘s statute of limitations for wrongful death and survival actions had long since run on or about April 28, 2013, almost three years before Reibenstein sued Dr. Conaboy. The trial court
death-related claim. In effect, the trial court determined that there were disputed issues of material fact affecting whether the discovery rule rendered Reibenstein‘s claim against Dr. Conaboy timely. But upon considering Dr. Conaboy‘s motion for reconsideration, which called particular attention to Section 513(d)‘s MCARE-specific statute of limitations for death and survival claims and that section‘s tolling provision, the court granted summary judgment for Dr. Conaboy. In doing so, the court deemed it “clear” that there “is no evidence of ‘affirmative misrepresentation or fraudulent concealment of the cause of death.’”16
Reibenstein appealed, and the Superior Court rejected the trial court‘s reasoning. Section 513, “Statute of repose,” provides, in relevant part:
(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.
* * * *
(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.17
rule‘s] application is the inability of the injured, despite the exercise of reasonable diligence, to know that he is injured and by what cause.”).
The Superior Court noted that MCARE‘s stated purpose “is to ensure . . . that high quality health care is available in the Commonwealth and [to] provide a person who has sustained injury as a result of medical negligence by a health care provider with fair compensation, while controlling the costs of medical malpractice insurance rates.”18 In determining the effect of Section 513(d), the court observed that MCARE itself offered no definition of “cause of death.”19 Dr. Conaboy maintained that the term referred strictly to medical cause of death, i.e., to the direct
Finding both interpretations reasonable, the court determined that the legislature‘s chosen language was ambiguous.20 The court turned to the factors employed in interpreting an ambiguous statute.21 The court deemed it “clear” that Section 513(d)‘s tolling provision was intended “to protect patients who have pursued their rights, and despite this, ‘extraordinary circumstance prevents them from bringing a timely action.’”22 Where that is the case, the court ventured, the limitations period does not “further the statute‘s purpose.”23 In the court‘s opinion, the legislature‘s choice to include a tolling provision signaled its recognition that
wrongful death and survival actions may involve situations where the patient‘s interest in fair compensation outweighs the interest in limiting medical malpractice insurance costs. It is in furtherance of the stated purpose of fair compensation that we interpret ‘affirmative misrepresentation or fraudulent concealment of the cause of death’ to encompass those acts which caused the patient to die. Where a medical practitioner hides an action that was directly related to the cause of the patient‘s death, the Commonwealth‘s interest in redress outweighs the interest in control of medical malpractice insurance costs.24
Confronted with the competing goals of ensuring fair compensation while working to minimize frivolous litigation and associated increases in insurance premiums, the court determined that the tolling provision should be read as serving the legislature‘s stated
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.
intention to ensure fair compensation. Thus, the “‘affirmative misrepresentation or fraudulent concealment of the cause of death’” tolling provision applied not only to obscurantist conduct in connection with the medical cause of death, but also to “affirmative misrepresentations about or fraudulent concealment of conduct the plaintiff alleges led to the decedent‘s death.”25
We granted Dr. Conaboy‘s Petition for Allowance of Appeal in order to determine the scope and meaning of the phrase “cause of death” as used in Section 513(d).27
Notes
Because this is a question of law, we conduct our review de novo, and the scope of our review is plenary.28
[O]ur interpretive function requires us to identify the intent of the legislature, and we begin with the presumption that unambiguous statutory language embodies that intent, requiring no further investigation. We may not disregard the Act‘s unambiguous language in service of what we believe to be the spirit of the law. Furthermore, while we must consider the statutory language in its full context before we assess ambiguity, we must not overlabor to detect or manufacture ambiguity where the language reveals none.29
“[W]e should not interpret statutory words in isolation but must read them with reference to the context in which they appear.”30
The parties’ respective arguments run in two tracks. First, each maintains that the other‘s proposed definition adds language to the statute. We can no more interpret a statute in a way that adds language than we can read it in a way that renders any statutory language ineffective.31 In the second line of argument, each party proposes that highly unfavorable results that are antithetical to MCARE‘s purpose and design will follow from ruling in favor of the adversary. We address these arguments in turn.
Reibenstein v. Barax, 253 A.3d 209 (Pa. 2021) (per curiam) (simplified for clarity). Our resolution of the first issue obviates the need to resolve the second.
Dr. Conaboy argues that, in interpreting the statute broadly, the Superior Court effectively added language expanding the scope of the narrow phrase “cause of death”:
The Superior Court both added and removed words from the statute, as shown in brackets and delineation below: “[i]f 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 [conduct leading to]cause ofdeath.”32
Reibenstein disagrees, arguing that—far from adding or removing language—the Superior Court merely interpreted it. But she also suggests that the adding/subtracting language argument is a double-edged sword. “[Dr. Conaboy is] asking this court to find that ‘cause of death’ means ‘medical cause of death as identified on a death certificate.’”33 Thus, she contends, Dr. Conaboy‘s account no less entails the addition of material language to a statute in a way that alters its apparent meaning.
The lack of definition naturally complicates a plain-language analysis, but it hardly precludes one. Among other sources, we may seek common understanding in dictionaries, which furnish insight into shared meaning.34 And, as we noted in Sivick, a contextualized view of a statute also may reveal its meaning without the convenient but unnecessary resort to ambiguity analysis.35 Such is the case here. The language of Section 513(d) and its statutory context compel the conclusion that “cause of death” should be understood narrowly to encompass only the accuracy of the medical cause of death noted on the certificate of death.
Precisely because MCARE encompasses a panoply of interrelated topics, including both tort and quality of care, the most sensible places to seek the meaning of the term “cause of death” are medical contexts in which the General Assembly has used this language—that is, in the Vital Statistics Law and the various County Codes, where cause and manner of death (and their cadences of medical and legal causation) are treated as distinct—especially where those uses unambiguously evoke the medical dictionary definition. For example, Section 507 of the Vital Statistics Law of 195336 details circumstances in which a “professional nurse” may pronounce a patient‘s death, notify a coroner, or release the decedent‘s body to a funeral director. But that limited authority “in no way authorizes a professional nurse to determine the cause of death. The responsibility for determining the cause of death remains with the physician, certified registered nurse practitioner or the coroner.”37 The reason for this limitation on a professional nurse‘s authority, informed by the class of professionals who are not so restricted, is clear: the physician, certified registered nurse practitioner, and coroner—and no one else—are the persons qualified by training and by law to determine the medical cause of death. But notably, neither the statute nor common sense suggests that (with the exception of a coroner) they are qualified to speak to the legal cause of death.38
Further support for a narrow interpretation of the phrase that distinguishes medical from legal cause of death—much as the law has distinguished cause of death from manner of death—appears in provisions of Pennsylvania‘s County Code that detail the duties of county coroners, which include investigating “the cause and manner of death” for purposes of determining criminal responsibility “by act or neglect.”39 It is the coroner, rather than a health care provider, whose investigative authority and duties extend beyond the mere physiological mechanism by which death occurred and into the realm of legal causation.40
To ensure that references to cause and manner of death are individually effective rather than redundant, we must assume that the legislature intended to impart to them a mere omission by a deponent physician of a detail that a clinician might reasonably think immaterial to a given deposition question is sufficient to trigger tolling under Section 513(d). Justice Mundy would obligate a well-intentioned physician who participated in a given patient‘s care to record, and later to scour his or her records and memory, not only for what might be relevant in the clinical sense but also what might appear relevant to someone with legal training. Nothing in MCARE suggests that the legislature intended to saddle providers with such a burden.
distinct meanings.41 The only way to do so in the County Code without favoring Dr. Conaboy‘s argument for a narrow interpretation of “cause of death” in MCARE would be to assume that the legislature intended the term to mean significantly different things in each of those statutes. Certainly, one can hypothesize contexts in which the legislature so intends. But we will not presume that to be the case without some quantum of evidence to suggest such intent. No such evidence appears in this case.42
As we observed above, we also may seek guidance in dictionaries. Dictionaries, too, recognize a cause/manner distinction. Black‘s Law Dictionary, for example, defines cause of death as “[t]he happening, occurrence, or condition that makes a person die; the injury, disease, or medical complication that results directly in someone‘s demise.”43 In
isolation, “happening, occurrence, or condition” might hint at a broader inquiry than medical cause, but only in isolation. The more limited reference to “injury, disease, or medical complication”—with its suggestive use of the word “directly,” which implies “but-for” causation—critically narrows the scope of the definition. Dorland‘s Medical Dictionary offers an equally strict definition of cause of death as “the injury or disease responsible for death.”44 And our constrained reading of “cause of death” in harmony with these dictionaries finds more support in the same dictionaries’ respective definitions of manner of death. Black‘s, for example, defines manner of death as “[t]he circumstances under which the cause of death arose,”45 which jibes perfectly with Dorland‘s definition: “the circumstances under which a death occurs, e.g., suicide or accident.”46
In sum then, the available textual evidence, especially viewed in light of broader statutory context and the common usage reflected in reliable reference resources, favors Dr. Conaboy‘s narrower construction.47 The analysis also supports his contention that to
read “cause of death” as encompassing legal causation or manner of death would entail inserting language into the statute, an enterprise in which we are not free to engage.48
The foregoing analysis, sufficient in itself to compel our conclusion, also harmonizes with our pre-MCARE decision in Pastierik. In that case, the decedent died of lung carcinoma, and, over three years later, the plaintiff filed two complaints against defendants alleging that the decedent‘s cancer was caused by workplace exposure to asbestos—the first against decedent‘s employer, and the second against an alleged supplier of the asbestos. Although decedent died in April 1978, the plaintiff contended that she did not know until March 1981 that asbestos exposure caused her husband‘s death, hence the discovery rule applied to render her suits timely even though they were filed more than two years after the decedent‘s death. The trial court found both of the plaintiff‘s suits barred on the basis that the statute of limitations began to run upon death. The Superior Court reversed, holding that the discovery rule applied.
On appeal, this Court rejected the Superior Court‘s application of the discovery rule to a death action. The Pastierik Court recognized that the typical circumstances that call for resort to the discovery rule do not, indeed cannot, apply to death actions, explaining:
Statutory references to the occurrence of an “injury” or the accrual of a “cause of action” are subject to judicial interpretation as to the degree of knowledge a plaintiff must possess before the statute will start to run. In contrast, the requirement that a wrongful death action be brought within a
specified number of years after a definitely established event,—“death”—leaves no room for construction.49
The discovery rule applies when critical information about an injury eludes detection through no lack of diligence on the plaintiff‘s part, and the “discovery” of that information accordingly dictates when a claim accrues and the limitations period begins to run. But when potential malpractice leads to death, there is no question that injury has occurred—death alone is a signal event, a sufficient impetus to investigate the prospect of malpractice diligently.50
Even before MCARE‘s enactment, that principle was subject to an equitable exception. Then (under the common law) as now (under MCARE), where “cause of death” was obscure to a potential plaintiff due to an act or omission, estoppel principles
compelled tolling the two-year statute of limitations. But the tolling remedy for death claims was more limited than the broader discovery rule for precisely the same reason—death invites immediate investigation.51
To be sure, the discovery rule and equitable tolling are conceptually distinct. In discovery-rule cases, claims accrue only upon discovery of the injury and its cause, while the equivalent of accrual in death cases happens upon death as a matter of course. But the statute of limitations will be tolled when the cause of death is obscured by some affirmative act or omission that lulled the plaintiff into neglecting his or her duty to investigate to determine whether there was an actionable claim in malpractice.52
That distinction, though, lacks a difference when it comes to the concerns implicated by the question that this case presents. The discovery rule begins to run upon the discovery of injury and the prospect that it was caused by malpractice (if not, as explained immediately above, necessarily whose malpractice). But once the claim accrues, the clock ticks inexorably, no matter how difficult it may be to trace that injury back to a tortious act. Even on the broadest available reading of our discovery-rule jurisprudence, the statute of limitations begins to run—at the latest—once one discovers an injury, its cause, and an agent of the harm. And there is no assurance that some additional reprieve from the passage of that time will apply where, during the course of litigation, a second potentially liable party enters the picture.
In death actions, death itself is the watershed event, analogous to satisfying the discovery-of-injury and tortious-causation requirements relative to the discovery rule. So it is upon death that any potential claim accrues, triggering a would-be plaintiff‘s duty of inquiry. What follows in either case may be a frustrating, uncertain investigation, which may yield insufficient evidence of malpractice even where it has occurred. And as noted in one form above, one of the problems that Reibenstein claims in this case—that identifying a responsible party may not occur in the discovery process until after the statute of limitations has run against that responsible party53—may occur in a non-death case. The fact remains, though, that the triggering event for the discovery rule is the discovery of injury and the prospect that it was caused by malpractice itself, not the certain discovery of all responsible parties. Naturally, the average injured party or survivor may not be equipped to assess quality of care, the presence of treatment alternatives, or other considerations relevant to the presence or absence of a viable malpractice claim. But the critical consideration is “inquiry notice” and the duty of diligent inquiry that follows: in most cases, it is uncertainty or specific concerns, based perhaps on a review of medical records or the content of interactions with treating health care providers, that will raise a potential plaintiff‘s suspicions. Beyond that, it is likely that further appraisals will require the involvement of an attorney and/or outside expert review.54
What matters is the point in time at which the injured party or survivor has sufficient information to recognize that the matter warrants further pursuit. The aim is to ensure that a veil of total ignorance impenetrable by mere diligent effort does not result in the loss of a meritorious claim.55 It is not to guarantee that all of the information necessary to sustain a claim will be gathered in the limitations period that commences upon that discovery. At some point the clock must run out, lest health care providers remain subject to liability exposure indefinitely, with the prospect of a trial marred by the death or diminished memory of material witnesses or the loss of critical evidence.56 And this
would apply. For example, a provider might misrepresent a medical cause of death to align with a decedent‘s pre-existing medical condition, leading a survivor (or, at least as importantly, a lawyer or expert reviewing the decedent‘s file) to conclude that the death reflected a natural progression of that known condition. Where that assessment obscures a true medical cause of death that is less readily reconciled with the decedent‘s condition and presentation at the time of treatment, the misidentification may undermine a survivor‘s inclination to investigate whether negligence contributed to the decedent‘s death, or may lead reviewing professionals to overlook evidence of negligence. Simply put, the intended benefit of equitable tolling is not rendered illusory merely because the domain of the remedy is limited.
increased uncertainty will be priced into malpractice insurance premiums, precisely the circumstance MCARE was designed to mitigate.57
Reibenstein warns that the narrower account of “cause of death” would encourage conspiratorial conduct on the part of physicians aiming to conceal their culpability for a patient death while the clock runs out. This, she argues, would invite plaintiffs prospectively to sue indiscriminately any physician who treated the decedent in any way that might be connected to the events leading to death, in direct contravention of the legislature‘s intention to discourage frivolous or overbroad malpractice suits.
For his part, Dr. Conaboy suggests that the Superior Court‘s view leads to an untenable, indefinite extension of the time during which any number of physicians and their insurers will dangle in limbo regarding their potential liability exposure, owing not only to the prospect of delay but to questions pertaining to how attenuated the medical chain of causation might grow.58 Long-delayed suits would remain available indefinitely to any plaintiff who contends, however tenuously, that a treating physician concealed a potential legal cause of death such that a duly diligent plaintiff—through no fault of his or
her own—remained unable to identify an available claim or promising line of inquiry. This path would require only the bare showing necessary to establish a disputed issue of fact, the low bar for which is evident in the Superior Court‘s decision to remand this case for further examination of the tolling claims based upon Reibenstein‘s conclusory allegations of misconduct, allegations that the trial court roundly rejected for want of supporting evidence.59 This necessarily enmeshes physicians in a quagmire that agglomerates determination of medical cause of death, unquestionably their province, with identification of potential legal causes of death, which is more properly entrusted to the legal system.60
We do not reject entirely the salience of Reibenstein‘s claim that limiting the tolling provision to medical causation will force plaintiffs to cast their nets more widely in determining whom to sue. But while a plaintiff may at least begin suit against a bevy of health care providers with writs of summons, the certificate of merit requirement will nip unsubstantiated threats in the bud, as it evidently did in this case, when Reibenstein was unable to obtain a certificate of merit against Dr. Conaboy early in this litigation. Plaintiffs will have an opportunity to conduct timely, rigorous investigations of potential malpractice actions arising from fatal events, in keeping with MCARE‘s objective.
Reibenstein also does not account for the availability of pre-complaint discovery. Since 2007, the Pennsylvania Rules of Civil Procedure have provided for discovery in furtherance of preparing a complaint, a mechanism that Reibenstein apparently did not
explore in this case. Pursuant to Rule 4003.8, which was adopted in the wake of our decision in McNeil v. Jordan, 894 A.2d 1260 (Pa. 2006),61 “[a] plaintiff may obtain pre-complaint discovery where the information sought is material and necessary to the filing of the complaint and the discovery will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party.”62 This general rule is bolstered by companion provisions in
Reibenstein would have us believe that she never had any chance of identifying Dr. Conaboy as a proper defendant in this action within the limitations period. But the facts and circumstances of this case suggest otherwise. Reibenstein‘s own complaint indicates that, in the days before Decedent‘s death, at least three physicians, including Dr. Conaboy, examined Decedent.64 Reibenstein clearly was conscious of the possibility of malpractice, and had no reason at the outset to exclude any of the treating physicians from her preliminary investigations. Indeed, she “obtained expert review and opinion
regarding the medical care and treatment provided by all health care professionals identified in [her medical] records.”65 It is true, as Reibenstein emphasizes, that she could not file a complaint against Dr. Conaboy (or any provider) without first securing a certificate of merit, and Reibenstein asserts that she sought one unsuccessfully. But this tells us nothing about the quantum and quality of the information and guidance that she gave her chosen expert, and, in any event, disregards the alternative course of filing a writ of summons and seeking pre-complaint discovery.66
Collectively, these considerations leave unclear the reason for the slow progress of Reibenstein‘s investigation; indeed, they highlight what perhaps should have been perceived as urgency.67 Among other things, we do not know why so much time passed between the filing of the complaint against Dr. Barax and the conclusion of discovery. However resistant Dr. Barax may have been, the passage of time was substantial, which may suggest relative inaction and delay, given what Reibenstein alleges was a flagrant
pattern of obstruction of discovery. One would expect a zealous attorney to seek judicial intercession when confronted with persistent obduracy, and our law requires nothing less.68 It is incongruous at best that Reibenstein humored delay in scheduling the deposition for years before seeking court intervention, especially after she had filed a motion to compel at a much earlier stage upon encountering similar resistance in response to her written discovery requests.69
Ultimately, the statute requires what it requires. The phrase “cause of death” as used in MCARE Section 513(d) refers specifically to the medical cause of death. Only an affirmative misrepresentation or fraudulent concealment of such medical cause of death will toll the two-year statute of limitations that MCARE prescribes for medical malpractice claims sounding in survival or wrongful death.70
We reverse the Superior Court‘s contrary ruling, and we remand for restoration of the trial court‘s grant of summary judgment in Dr. Conaboy‘s favor.
Chief Justice Todd and Justice Brobson join the opinion.
Justice Dougherty files a concurring and dissenting opinion.
Justice Mundy files a concurring and dissenting opinion in which Justice Dougherty joins.
Justice Donohue did not participate in the consideration or decision of this matter.
that the legislature implied in drafting Section 513(d), a preference that is not ours to displace.
One thing is clear beyond a reasonable doubt on this record before you: A physician licensed to practice medicine in the state of Pennsylvania raised his right hand and lied under oath in an attempt to avoid the consequences of killing one of their patients. . . . [A] second doctor also lied and/or conspired with that first doctor to also hide the malpractice that had occurred.Oral Argument, Reibenstein v. Barax, 10/26/2021, at 36:50, available at https://www.youtube.com/watch?v=hkCzYtvSU2U; cf. id. at 47:25 (“I‘m not convinced there wasn‘t a conspiracy here.”). It is by no means clear whether the late discovery of the information upon which Reibenstein would rely in seeking to hold Dr. Conaboy liable was the product of deliberate individual or concerted actions by Dr. Barax or Dr. Conaboy or something else entirely. The mere fact of inconsistent sworn testimony does not prove prevarication. More importantly, this Court is not the venue in which to litigate such matters.