University of Pittsburgh Medical Center. Photo: Erika J Mitchell/Shutterstock.com

Nonprofit health care provider UPMC has asked the Pennsylvania Supreme Court to reconsider its decision last month to strike down the statute of repose under the state's MCARE health law, saying its analysis was "gravely flawed."

The hospital system filed an application for reconsideration Wednesday in the case Yanakos v. UPMC, in which a sharply divided court said the statute of repose violates the Pennsylvania Constitution's guarantee of open access to the courts.

However, according to the 15-page application for reargument filed by Dickie, McCamey & Chilcote attorney John Conti, the court's analysis underpinning the Oct. 31 decision "clashed" with recent precedent interpreting the same statute, was based on an issue that was not before the court and improperly disregarded the General Assembly's policy objectives in enacting the Medical Care Availability and Reduction of Error (MCARE) Act's statute of repose.

"The court's decision sets aside bedrock jurisprudential foundation for statutes of repose and replaces it with evidentiary quicksand upon which no legislature could erect a sound statute," Conti said.

Ruling 4-3, the high court in Yanakos struck down as unconstitutional MCARE's seven-year limitation on bringing medical malpractice lawsuits. Justice Sallie Updyke Mundy wrote the court's majority opinion. She was joined by Justices Debra Todd and Kevin Dougherty. Justice Christine Donohue concurred with the result, and Justice David Wecht filed a dissent that Chief Justice Thomas Saylor and Justice Max Baer joined.

According to Mundy, the defendants in the case needed to show that the General Assembly's enactment of the MCARE Act's statute of repose was "substantially or closely related to an important government interest." However, Mundy said the defendants failed to meet that burden.

"There was no evidence to show the initially proposed four-year statute of repose would provide actuarial certainty, except that it 'seemed like a reasonable resolution' to 'provide some stability and predictability' to insurers," Mundy said, citing the legislative history in first proposing a four-year statute of repose. "There is no evidence in the legislative history as to how the General Assembly arrived at a seven-year statute of repose with exceptions for foreign objects cases and minors. The legislature did not cite any statistics on the number of medical malpractice actions that are commenced after seven years of the occurrence giving rise to the action. There is no indication that such a time period, as opposed to a longer or shorter period, will have any effect on malpractice insurance costs."

However, in the brief seeking reargument, Conti said the economic justification for the statute of repose was an issue the court raised itself after it had been waived by the plaintiff, so the defendants were not given the opportunity to address the issue.

Further, he argued that the analysis overlooked the significant governmental interest that the statute of repose served. According to Conti, the central goal of the statute of repose was to create predictable and stable insurance markets for health care providers, and, although reduction of insurance costs was a side benefit, it was not the primary objective. He also noted that, although the court said the choice of a seven-year statute of repose was "arbitrary," the court ignored the fact that the period correlates with the length of time hospitals are required to keep their medical records.

Regarding prior precedent, Conti said the court's analysis in Yanakos was "contradictory" to the reasoning behind its 2017 decision in Dubose v. Quinlan, which was also authored by Mundy, with Dougherty and Todd joining. That decision, which dealt with MCARE's statute of limitations, determined that the time period for filing survival actions could be extended until two years after death.

Conti contended that, although the court in Yanakos said there was insufficient legislative history supporting the statute of repose, the Dubose ruling upheld the statute of limitations "despite the absence of any legislative history." The analysis in Yanakos, he said, "clashed" with Dubose, and would essentially require the legislature to "provide research on the order of an academic study supportive of all elements of a given piece of legislation."

"If this decision is allowed to stand, it will represent a judicial feat imbued with considerable irony whereby a statute of limitations was fashioned despite the absence of legislative history and then the sole limiting constraint on that very statute was dissolved due to the absence of legislative history," Conti said. "Of Section 513, it could be said, what the legislature enacted is now gone, what the court created is all that remains."

Conti referred to the brief when reached for comment.

Patrick Cavanaugh of Del Sole Cavanaugh Stroyd, who represented the plaintiffs, did not return a message seeking comment Wednesday afternoon.