The Pennsylvania Supreme Court has ruled that the statute of limitations in survival actions can be extended until two years after death.

The question presented on appeal in Dubose v. Quinlan involved the statute as applicable to survival actions in medical malpractice lawsuits, and the justices specifically reviewed whether the Superior Court improperly expanded that time bar beyond the two-year window, contrary to established law and the intentions of the Medical Care Availability and Reduction of Error Act, specifically Section 513.

In October 2015, the Superior Court affirmed judgments entered on a $125,000 wrongful death and $1 million survival claim against a nursing home, hospital network and nursing staff. The defendants appealed, arguing the Survival Act claim was time-barred, but the Superior Court affirmed.

In the court's majority opinion, Justice Sallie Updyke Mundy said the language of the statute clearly provides for the running of the clock at the time of death. She was joined by Justices Debra Todd and Kevin Dougherty.

“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,” Mundy wrote.

Justice Max Baer filed a concurring and dissenting opinion in which he took issue with the court's reasoning but agreed with the overall disposition of the underlying case.

“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),” Baer wrote.

Additionally, Chief Justice Thomas Saylor filed a dissenting opinion.

“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 treatment concerning the outside limits for filing a survival action,” Saylor said.

Justices Christine Donohue and David Wecht did not participate in the case.

J. Michael Doyle of Post & Schell, who represented Willowcrest Nursing Home, and Rhonda Hill Wilson, who represented the plaintiff, did not respond to requests for comment.

Elise Dubose was admitted to Willowcrest Nursing Home in 2005 and diagnosed with pressure ulcers, among other ailments, the Superior Court's opinion said. She died in October 2007, allegedly because she developed severe ulcers that were left untreated and led to a “painful and gruesome death due to neglect and deterioration of said ulcers,” the trial court's ruling said. Robert Dubose filed suit in August 2009, and again in September 2009, and his claims were consolidated.

At trial, a jury awarded Dubose $125,000 on his wrongful death claim and $1 million on the survival claim, apportioning 60 percent of the liability to Willowcrest, 25 percent to Albert Einstein Healthcare Network and 15 percent to Donna Brown, Willowcrest's director of nursing, the opinion said. Brown was later granted judgment notwithstanding the verdict.

On appeal, the defendants argued they were entitled to JNOV because the Survival Act claim was time-barred for exceeding the two-year statute of limitations. Willowcrest said the statute began to run in 2005, when Elise Dubose first developed a pressure wound, but Judge Kate Ford Elliott, writing for the court, said the nursing home was mistaken.

The MCARE Act provides that wrongful death and survival actions may be brought within two years of death, Ford Elliott said. Dubose died in October 2007, and the two complaints were filed within two years.