In an opinion by Justice Sallie Mundy, the Supreme Court held in Dubose v. Quinlan, Nos. 21 EAP 2016, 22 EAP 2016 (Pa. Supreme Court 11/22/2017) that the statute of limitations in a medical professional liability case for both a wrongful death and a survival action is two years from the date of the decedent's death. The decision in Dubose was not completely unexpected given the language of the statute that the court was called upon to interpret and a prior Superior Court decision interpreting the statute at issue. Nonetheless, the Supreme Court's decision resolves the issue. It is important to note that the Dubose's decision as to the statute of limitations for survival actions applies only to professional medical negligence cases and not to all personal injury cases.

Facts of the Case

Dubose involved allegations of negligent medical care ultimately resulting in Elise Dubose's death on Oct. 18, 2007. The medical care at issue started in August 2005, and continued through September 2007. An initial complaint was filed on Aug. 13, 2009, alleging both survival and wrongful death claims. A second complaint asserting survival and wrongful death claims was filed on Oct. 7, 2009, naming several additional defendants, and seeking punitive damages. Obviously, the case was commenced within two years of the death of the decedent's death, but involved allegations of negligent medical care occurring more than two years prior to the date of death.

Procedural History

The case proceeded to trial in October 2012 before a Philadelphia jury. It returned a verdict for the plaintiff on both the survival and the wrongful death claims and also awarded punitive damages. The trial court denied the defendants' post trial motion on the issue of the statute of limitations. It held that the survival claim had been timely filed in accordance with Section 513 of the Medical Care Availability and Reduction of Errors (MCARE) Act, enacted in 2002, which sets forth as follows:

Section 513. Statute of Repose

General rule.—Except as provided in subsection (b) [injuries caused by foreign object] or (c) [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 …

Death or survival actions.—If the claim is brought under 42 Pa.C.S. Section 8301 (relating to death action) or Section 8302 (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.

The defendants appealed the trial court's decision on the statute of limitations issue. They argued that pursuant to established Pennsylvania appellate authority, the survival claim, which is a personal injury claim brought by the decedent's estate, started to run on the date of the decedent's injury. In the instant matter, they contended that the decedent injury occurred in 2005; and therefore, the two-year statute of limitations for that claim had expired by the time the case was filed in 2009. The defendants further contended that Section 513 of the MCARE Act based, in part, on the title of the section, was a statute of repose and that subsection (d) did not change established law that the two-year statute of limitations for personal injury claims begins to run when the decedent knew, or should have known, of her injury and its cause. According to the defendants Section 513(d) should be interpreted as a statute of repose, which sets the latest date that a wrongful death or survival action may be filed.

The Superior Court rejected this argument and affirmed the trial court's decision finding that the MCARE act, per Section 513(d), clearly provides that wrongful death and survival actions may be brought within two years of death. The court relied upon a prior en banc decision by the Superior Court in Matharu v. Muir, 2014 PA Super 29, (Pa. Super. 2014) in which then-Judge, now-Justice, Christine Donohue authored an unanimous, en banc opinion holding Section 513(d) does not set forth a statute of repose at all, but rather is a statute of limitation setting forth that a survival claim must be filed within two years of the date of death. Since both complaints were filed before two-year anniversary of the decedent's death, they were timely commenced. Thereafter, the Supreme Court accepted the case for review to address the issue of whether the trial and Superior Courts had properly interpreted the language of Section 513(d) of the MCARE Act.

Supreme Court's Reasoning

The court analysis starts with, as it should, the principles of statutory construction that are to be employed when the court interprets a statute. Two principles cited to in the court's opinion that were particularly relevant to this case were: if a statute's plain language is unambiguous, the court should apply it without resorting to any rules of construction and without considering legislative intent. The court's opinion had earlier noted that the both parties had agreed that Section 513(d) was not ambiguous. Further, the Statutory Construction Act states that the headings of a statutes do not control the meaning of its plain language, but may be considered in aid of interpretation.

The court then turned to the central question in the case: Whether Section 513(d) was a statute of repose or a statute of limitations that modified the accrual date for a survival action. The court reviewed the differences between a statute of repose (one that puts an outer limit on the right to file a civil lawsuit, typically measured by some act or omission by the defendant even if the plaintiff may not have suffered resulting harm from the defendant's act or omission) and a statute of limitations (a time limit set for filing a civil action from the date when the claim accrued). The court went on to review Pennsylvania law as to the statute of limitations for survival actions: the two-year statute of limitations for a survival action may commence to run at a date earlier in time than the date of death if the decedent had known or should reasonably have known of her injury and its cause. Thus, while there is a two-year statute of limitations for both the survival claim and the wrongful death claim and the wrongful death claim always commences to run on the date of death, the date that the two-year statute of limitations commences can be earlier in time. While the statute of limitation may start at the time of injury, it is subject to the discovery rule and the concealment exceptions to the statute of limitations. It should also be noted that despite the court's reference to earlier Supreme Court decisions, there is a recent appellate court decision holding that the concealment exception can apply to extend the statute of limitations beyond two years for both wrongful death and survival claims. Krapf v. St. Luke's Hospital, 2010 Pa. Super 132 (Pa. Super. 2010). In that well-reasoned decision, the Superior Court held that the several cases filed well beyond two years from the date of the decedents' death were nonetheless commenced timely due to the unintentional fraudulently concealment by the defendant. It should be noted that Krapf is a fairly unique situation. Pennsylvania courts have not readily found sufficient actions by defendant health care providers to warrant a finding of concealment to allow the extension of the statute of limitations beyond two years.

The court rejected the defendant's argument that Section 513(d) was a statute of repose. The court held 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.” The court found that the language of Section 513(d) was clear and stands alone from that of Section 513(a). The language of Section 513(d) had the characteristics of a statute of limitations and not a statute of repose. It compared the language in the two sections making it clear that the General Assembly could have easily set forth a statute of repose for wrongful death and survival actions but did choose to do so. The court also noted that the General Assembly could have amended Section 513(d) in response to the Superior Court's en banc decision in Matharu, but again chose not to. Finally, the General Assembly, as in other situations, has the authority to create a specific statute of limitations for specific type of case.

Stephen J. Pokiniewski Jr., a member of Anapol Weiss, handles managed care cases. He focuses his practice on medical malpractice, nursing home and personal injury matters. Pokiniewski is a member the Pennsylvania Bar Association, as well as the American and Pennsylvania Associations for Justice and the Philadelphia Trial Lawyer Associations.

In an opinion by Justice Sallie Mundy, the Supreme Court held in Dubose v. Quinlan, Nos. 21 EAP 2016, 22 EAP 2016 (Pa. Supreme Court 11/22/2017) that the statute of limitations in a medical professional liability case for both a wrongful death and a survival action is two years from the date of the decedent's death. The decision in Dubose was not completely unexpected given the language of the statute that the court was called upon to interpret and a prior Superior Court decision interpreting the statute at issue. Nonetheless, the Supreme Court's decision resolves the issue. It is important to note that the Dubose's decision as to the statute of limitations for survival actions applies only to professional medical negligence cases and not to all personal injury cases.

Facts of the Case

Dubose involved allegations of negligent medical care ultimately resulting in Elise Dubose's death on Oct. 18, 2007. The medical care at issue started in August 2005, and continued through September 2007. An initial complaint was filed on Aug. 13, 2009, alleging both survival and wrongful death claims. A second complaint asserting survival and wrongful death claims was filed on Oct. 7, 2009, naming several additional defendants, and seeking punitive damages. Obviously, the case was commenced within two years of the death of the decedent's death, but involved allegations of negligent medical care occurring more than two years prior to the date of death.

Procedural History

The case proceeded to trial in October 2012 before a Philadelphia jury. It returned a verdict for the plaintiff on both the survival and the wrongful death claims and also awarded punitive damages. The trial court denied the defendants' post trial motion on the issue of the statute of limitations. It held that the survival claim had been timely filed in accordance with Section 513 of the Medical Care Availability and Reduction of Errors (MCARE) Act, enacted in 2002, which sets forth as follows:

Section 513. Statute of Repose

General rule.—Except as provided in subsection (b) [injuries caused by foreign object] or (c) [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 …

Death or survival actions.—If the claim is brought under 42 Pa.C.S. Section 8301 (relating to death action) or Section 8302 (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.

The defendants appealed the trial court's decision on the statute of limitations issue. They argued that pursuant to established Pennsylvania appellate authority, the survival claim, which is a personal injury claim brought by the decedent's estate, started to run on the date of the decedent's injury. In the instant matter, they contended that the decedent injury occurred in 2005; and therefore, the two-year statute of limitations for that claim had expired by the time the case was filed in 2009. The defendants further contended that Section 513 of the MCARE Act based, in part, on the title of the section, was a statute of repose and that subsection (d) did not change established law that the two-year statute of limitations for personal injury claims begins to run when the decedent knew, or should have known, of her injury and its cause. According to the defendants Section 513(d) should be interpreted as a statute of repose, which sets the latest date that a wrongful death or survival action may be filed.

The Superior Court rejected this argument and affirmed the trial court's decision finding that the MCARE act, per Section 513(d), clearly provides that wrongful death and survival actions may be brought within two years of death. The court relied upon a prior en banc decision by the Superior Court in Matharu v. Muir, 2014 PA Super 29, (Pa. Super. 2014) in which then-Judge, now-Justice, Christine Donohue authored an unanimous, en banc opinion holding Section 513(d) does not set forth a statute of repose at all, but rather is a statute of limitation setting forth that a survival claim must be filed within two years of the date of death. Since both complaints were filed before two-year anniversary of the decedent's death, they were timely commenced. Thereafter, the Supreme Court accepted the case for review to address the issue of whether the trial and Superior Courts had properly interpreted the language of Section 513(d) of the MCARE Act.

Supreme Court's Reasoning

The court analysis starts with, as it should, the principles of statutory construction that are to be employed when the court interprets a statute. Two principles cited to in the court's opinion that were particularly relevant to this case were: if a statute's plain language is unambiguous, the court should apply it without resorting to any rules of construction and without considering legislative intent. The court's opinion had earlier noted that the both parties had agreed that Section 513(d) was not ambiguous. Further, the Statutory Construction Act states that the headings of a statutes do not control the meaning of its plain language, but may be considered in aid of interpretation.

The court then turned to the central question in the case: Whether Section 513(d) was a statute of repose or a statute of limitations that modified the accrual date for a survival action. The court reviewed the differences between a statute of repose (one that puts an outer limit on the right to file a civil lawsuit, typically measured by some act or omission by the defendant even if the plaintiff may not have suffered resulting harm from the defendant's act or omission) and a statute of limitations (a time limit set for filing a civil action from the date when the claim accrued). The court went on to review Pennsylvania law as to the statute of limitations for survival actions: the two-year statute of limitations for a survival action may commence to run at a date earlier in time than the date of death if the decedent had known or should reasonably have known of her injury and its cause. Thus, while there is a two-year statute of limitations for both the survival claim and the wrongful death claim and the wrongful death claim always commences to run on the date of death, the date that the two-year statute of limitations commences can be earlier in time. While the statute of limitation may start at the time of injury, it is subject to the discovery rule and the concealment exceptions to the statute of limitations. It should also be noted that despite the court's reference to earlier Supreme Court decisions, there is a recent appellate court decision holding that the concealment exception can apply to extend the statute of limitations beyond two years for both wrongful death and survival claims. Krapf v. St. Luke's Hospital, 2010 Pa. Super 132 (Pa. Super. 2010). In that well-reasoned decision, the Superior Court held that the several cases filed well beyond two years from the date of the decedents' death were nonetheless commenced timely due to the unintentional fraudulently concealment by the defendant. It should be noted that Krapf is a fairly unique situation. Pennsylvania courts have not readily found sufficient actions by defendant health care providers to warrant a finding of concealment to allow the extension of the statute of limitations beyond two years.

The court rejected the defendant's argument that Section 513(d) was a statute of repose. The court held 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.” The court found that the language of Section 513(d) was clear and stands alone from that of Section 513(a). The language of Section 513(d) had the characteristics of a statute of limitations and not a statute of repose. It compared the language in the two sections making it clear that the General Assembly could have easily set forth a statute of repose for wrongful death and survival actions but did choose to do so. The court also noted that the General Assembly could have amended Section 513(d) in response to the Superior Court's en banc decision in Matharu, but again chose not to. Finally, the General Assembly, as in other situations, has the authority to create a specific statute of limitations for specific type of case.

Stephen J. Pokiniewski Jr., a member of Anapol Weiss, handles managed care cases. He focuses his practice on medical malpractice, nursing home and personal injury matters. Pokiniewski is a member the Pennsylvania Bar Association, as well as the American and Pennsylvania Associations for Justice and the Philadelphia Trial Lawyer Associations.