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Outer Limits: Survival or Revival?

March 1, 2018

Defense Digest, Vol. 24, No. 1, March 2018

By Craig A. Stone, Esq.*

Key Points:

  • The Pennsylvania Supreme Court has ruled that the applicable statute of limitations for medical professional liability cases in which wrongful death or survival action damages are claimed is two years from the time of the decedent’s death.
  • The court effectively blurred a longstanding bright line rule and significantly extended the time period within which a survival action claim may be timely filed.

 

On November 22, 2017, the Pennsylvania Supreme Court issued a majority opinion authored by Justice Sally Updike Mundy, ruling that the statute of limitations for medical professional liability cases seeking damages for wrongful death and/or survival actions is two years from the time of the decedent’s death. Justices Todd and Dougherty joined the majority. Justice Baer filed a concurring and dissenting opinion, while Chief Justice Saylor filed a dissenting opinion. Justices Donohue and Wecht did not participate in the decision of the court.

Factually, Elise Dubose was admitted to Albert Einstein Medical Center on July 25, 2005, having suffered severe head injuries as a result of a fall in her home. On August 9, 2005, Mrs. Dubose was transferred from Einstein and admitted to the Willowcrest Nursing Home. At the time of transfer, she was suffering from several pressure ulcers. Following the Willowcrest admission, the staff negligently failed to follow a physician’s order for a specialty bed and frequent repositioning, resulting in deterioration of the pressure ulcers and a proliferation of new ones elsewhere on her body. While at Willowcrest from 2005 through 2007, Mrs. Dubose also suffered malnutrition and sepsis. During a subsequent hospitalization at Einstein from January 30 to February 14, 2007, she developed additional bedsores. One of the ulcers which Mrs. Dubose had developed during her initial July 25, 2005, hospitalization at Einstein increased in size between 2005 to 2007. In July of 2007, that ulcer became infected with bacteria, causing sepsis. She was readmitted to Einstein and died on October 18, 2007, from sepsis and multiple pressure sores.

On August 13, 2009, Mrs. Dubose’s personal representative filed a complaint against Willowcrest and Einstein, including survival action claims to compensate Mrs. Dubose’s estate and wrongful death action claims to compensate Mrs. Dubose’s survivors. A second action was commenced on September 14, 2009, naming additional individual defendants who were associated with Willowcrest and/or Einstein. The actions were later consolidated for trial. The defendants raised the statute of limitations as an affirmative defense.

Following an earlier mistrial, a second jury trial resulted in a plaintiff’s verdict—rendered on March 13, 2013—in the amount of $125,000 in the wrongful death action and $1 million in the survival action. The verdict was apportioned 60% to Willowcrest, 25% to Einstein and 15% to Willowcrest’s director of nursing. Thereafter, a bifurcated punitive damages trial resulted in a jury verdict in favor of the plaintiff in the amount of $875,000. In response to a trial court appeal, then Judge (now Justice) Christine Donohue held that Mrs. Dubose’s survival action was timely pursuant to § 513(d) of the Medical Care Availability and Reduction of Error Act, 40 P.S. § 1303.101, et seq., which, she reasoned, permitted a plaintiff to commence a survival action within two years of a decedent’s death. Alternatively, the trial court applied the “discovery rule,” concluding that Mrs. Dubose’s comatose condition prevented her from knowing or reasonably discovering her injuries before her death.

In support of an appeal to the Superior Court, the appellants argued that Mrs. Dubose’s survival claims were barred by the traditional two-year statute of limitations for personal injury actions found at 42 Pa.C.S. § 5524, which expressly includes actions to recover damages for the death of an individual caused by the wrongful act, neglect, unlawful violence or negligence of another. They argued that a survival action is a continuance of a cause of action that accrued to the plaintiff’s decedent while alive and that the statute of limitations, therefore, began to run when she was “injured” in 2005. The appellants argued that once the statute of limitations expired on the decedent’s personal cause of action, in July of 2007, a survival action commenced following her death in August of 2009 was time barred. Stated differently, the appellants argued that Mrs. Dubose’s medical professional liability claim arose when she sustained a pressure ulcer in July of 2005 and that, applying the two-year statute of limitations, her right to sue expired in July of 2007. Therefore, the survival action filed in August of 2009 on her behalf was time barred.

Further, the appellants disputed the trial court’s holding that the survival action was rendered timely by application of subpart (d) of § 513 of the MCARE Act, entitled “Statute of Repose.” Subpart (a) of that statute provides that no cause of action asserting medical professional liability claims may be commenced after seven years from the date of the alleged tort. Subpart (d) refers to “Death or Survival Actions.” That subsection provides that civil actions under the wrongful death or survival statutes must be commenced within two years after the death of the decedent in the absence of affirmative misrepresentation or fraudulent concealment of the cause of death. The appellants argued that the trial court had improperly construed this section as a statute of limitations provision as opposed to a statute of repose. They further argued that the drafters of the MCARE Act did not intend to permit already time barred claims to become timely.

A panel of the Superior Court unanimously affirmed the decision of the trial judge. The Superior Court found that the MCARE Act “clearly” provides that wrongful death and survival actions may be brought within two years of death. Simply put, Mrs. Dubose died on October 18, 2007, and both of the complaints were filed within two years of that date. The court found that the appellants’ alternative argument that new causes of action were added in amended complaints filed more than two years after the decedent’s death were waived by noting that objections were not timely raised in this regard.

The Pennsylvania Supreme Court allowed appeal in the matter to decide whether the Superior Court improperly lengthened the statute of limitations applicable to survival actions in medical professional liability claims contrary to Pa.C.S. § 5542(2) and 5502(A), as well as to determine the intent of the legislature when enacting the MCARE Act statute of repose. The appellants argued that the Superior Court’s interpretation would result in two different statutes of limitations for survival actions: two years from the date of death for medical professional liability claims and two years from the date of injury for all other kinds of survival actions arising from personal injury. The appellants argued that, as a statute of repose, § 513(d) should not be interpreted to lengthen the two-year statute of limitations found in 42 Pa.C.S. § 5524 for personal injury claims. Based on precedent, a survival action is simply a continuation of a cause of action and does not “reset” upon the decedent’s death. As an illustration, the appellants noted that a survival action brought by a decedent’s estate would be time barred where the decedent was injured by a defective product in 2005 but does not bring a lawsuit before his or her death in 2008. However, if that same decedent had been injured by medical negligence in 2005 and does not file a lawsuit before her death in 2008, the decedent’s estate has an additional two years within which to file a survival action. The appellants argued that the General Assembly did not intend to create such a result while enacting “tort reform.”

The appellee stressed the Superior Court’s alternative application of the discovery rule. The appellee also argued that, while the sacral wound initially appeared in 2005, it grew worse over time due to inadequate care throughout. In addition, the appellee argued that the plain language of § 513(d) states that medical professional liability claims in the form of wrongful death and survival actions may be brought within two years of a decedent’s death. According to the appellee, this wording is unambiguous and is not subject to the principles of statutory construction or legislative intent. The appellee argued that § 513(d) is a statute of limitations because it permits a plaintiff to bring a cause of action within two years, unlike a statute of repose, the language of which limits the time within which to bring an action.

The Supreme Court agreed that if a statute’s plain language is unambiguous, the statute must be applied without consideration of familiar cannons of construction and legislative intent. The title of a section cannot control the plain words of the subparts of the statute and may only be considered to resolve any uncertainty. Subpart (d) was found to stand separate and apart from the language of subparts (a) through (c). Subpart (d) focuses not on the defendant’s conduct but on the time within which the plaintiff may sue. Unlike the general statute of repose found in subpart (a), subpart (d) also contains equitable considerations that may further lengthen the two-year period to commence a suit following death in cases of affirmative misrepresentation or fraudulent concealment. The focus on the language led the court to conclude that § 513(d) is a statute of limitations for medical professional liability death cases that sets the date of accrual at the date of the decedent’s death. The high court determined it to be within the legislature’s power to enact a more specific and generous statute of limitations for medical professional liability negligence that results in death.

Justice Baer filed a dissenting opinion, vigorously dissenting from the majority’s departure from the well-established jurisprudence that provides that the statute of limitations for a medical professional liability action commences when the cause of action accrues. He found that the majority’s interpretation grants the personal representative far more rights than the plaintiff herself would have possessed while alive. Justice Baer explained that the majority’s strained interpretation of § 513(d) flies in the face of the court’s settled case law regarding the nature of a survival action and is contrary to both the purposes behind the MCARE Act and the expressed legislative designation of § 513 as a statute of repose. Also, His Honor stated that the majority’s interpretation of § 513 extends the statute of limitations from two to seven years, thereby granting to the personal representative an independent cause of action that the deceased plaintiff could not have pursued personally in his or her own right had he or she remained alive. Notably, however, Justice Baer would have found that the Dubose actions were timely filed based on the trial court’s alternative reasoning under the discovery rule.

Chief Justice Thomas G. Saylor also filed a dissenting opinion. In his view, § 513(d) of the MCARE Act was simply meant to codify existing judicial treatment concerning the outside limits for filing a survival action. The legislature explicitly attached the title of “statute of repose” to the section, meaning that the representatives of a decedent who discover his or her injury at or about the time of her death has two years to file a survival action. Chief Justice Saylor concluded that there was no evidence to support the majority’s assertion that § 513(d) stands separately from the rest of the statute of which it is a component. His Honor reasoned that a survival action is not a new cause of action at all but is a continuation of one that already accrued to the decedent prior to her death. Per the majority opinion, a medical professional liability action now only arises upon death and can no longer be said to have previously belonged to the decedent.

*Craig is a senior counsel in our Harrisburg, Pennsylvania office and is also Board Certified Civil Trial Advocate by the National Board of Trial Advocacy. He can be reached a 717.651.3502 or castone@mdwcg.com.

 

Defense Digest, Vol. 24, No. 1, March 2018. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2018 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

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Craig A. Stone
Of Counsel
(717) 651-3502
castone@mdwcg.com

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