The MCARE statute of repose violates the Pennsylvania Constitution's guarantee of open access to the courts, an attorney told the state Supreme Court on Wednesday.

Del Sole Cavanaugh Stroyd attorney William Stickman made the arguments in Yanakos v. UPMC on behalf of a woman who received a diseased liver during a liver transplant. The woman, Susan Yanakos, did not end up discovering that the liver was diseased until far outside the allowable statute of repose, and the medical malpractice case brought against the University of Pittsburgh Medical Center was eventually dismissed.

Stickman told the justices that the case should be reinstated because Yanakos has a constitutional right to bring her claim to court.

“Access to the courts is not a question. It says shall,” Stickman said.

Several justices, however, questioned Stickman about whether it wasn't up to the state General Assembly to balance those constitutional interests when it crafted the Medical Care Availability and Reduction of Error (MCARE) statute, which allows for certain exceptions to the statute of repose, such as injuries created by foreign objects, like a sponge, left in the body.

“There's a significant difference in the level of proof,” Justice Debra Todd said, drawing a comparison between Yanakos' case and a case that would arise from a sponge being left in a body. “You do need a whole lot of proof and expert testimony with a case like this.”

Last year, a three-judge panel of the Superior Court ruled in July 2017 that plaintiffs Susan and Christopher Yanakos could not proceed with their lawsuit against UPMC over a liver transplant that occurred 13 years before the suit was filed. The ruling affirmed a decision from an Allegheny County Court of Common Pleas judge who likewise denied the Yanakoses' challenge to the MCARE statute of repose.

According to court records, in September 2003, Susan's son, Christopher Yanakos, volunteered to donate a lobe of his liver to her. Christopher Yanakos underwent various tests, one of which allegedly showed his liver was not properly functioning, court records said. However, according to the Yanakoses, they were unaware of the test results until June 2014, when both Yanakoses were allegedly suffering an advanced liver disease.

The plaintiffs sued UPMC and two doctors, saying that testing from 2003 allegedly showed Christopher Yanakos had the liver disease, which should have disqualified him as a donor. They sued in December 2015 on negligence and lack of informed consent claims.

During the argument session Wednesday, Justice David Wecht also drew a distinction between Yanakos and a case that would involve a foreign object, saying a sponge being left in the body “is res ipsa” negligence.

Stickman contended that the sponge scenario was included in MCARE's statute of repose exemption not because of the simplicity of the case, but rather because it is the type of case that is likely to take years for the injuries to manifest, which is what happened with the Yanakoses.

Counsel for UPMC, Dickie McCamey & Chilcote's John Conti, agreed with the distinction some of the justices drew, and told the court that the MCARE statute of repose was “a well-considered, well-drafted example of legislative authority.”

The legislature, Conti said, has the authority to abolish an entire cause of action if it wanted, although he said the legislators would be hard pressed to find enough legal justification to do so when it comes to medical malpractice cases.

According to Conti, multiple government interests came into play in crafting the MCARE statute, including keeping insurance costs under control, the need to encourage plaintiffs to bring their cases in a timely manner, and the need to adjudicate cases while the evidence was still available. He also said that, while statutes of limitation are focused on the rights of plaintiffs, statutes of repose are meant to account for the rights of defendants.

“Defendants have interest here that need to be protected,” he said.