Pennsylvania Appellate Court Reinstates Medical Malpractice Case Filed After Two-Year Statute Of Limitations Expired

In its opinion dated July 30, 2020, the Superior Court of Pennsylvania (“Pennsylvania Appellate Court”) stated, “In its order granting the Conaboy Defendants’ motion for summary judgment, the trial court held that because Mrs. Whitman died of an abdominal aortic aneurysm, and the death certificate lists aortic aneurysm as the cause of death, Reibenstein was not entitled to equitable tolling of the statute of limitations. Based on our interpretation of subsection 513(d), we are constrained to conclude that the trial court erred in concluding that Reibenstein’s claims were barred by the statute of limitation, and so erred in granting summary judgment in favor of Dr. Conaboy.”

The Underlying Facts

Mary Ann Whitman died on April 28, 2010, as a result of a ruptured abdominal aortic aneurysm. Five days before her death, at the request of her primary care physician, Dr. Conaboy, Mrs. Whitman underwent a CT scan, which Dr. Charles Barax reviewed. After reviewing the scan, Dr. Barax drafted a radiology report that stated that Mrs. Whitman had an abdominal aortic aneurysm that was “poorly visualized” on the study. His report did not document an aneurysm rupture, or any concern of a possible rupture. The report states, “Dr. Conaboy was contacted with this study was [sic] read -with the findings.”

Reibenstein filed a Pennsylvania medical malpractice wrongful death lawsuit against Dr. Barax. Dr. Barax was deposed in February 2015 and testified that he spoke with Dr. Conaboy, explained to him that the CT scan showed a previously undocumented abdominal aortic aneurysm, but because he could not visualize the aneurysm very well, he could not confirm that it was not bleeding or rupturing.

Based on Dr. Barax’s deposition testimony, Reibenstein initiated a separate action against the Conaboy Defendants in March 2016, asserting both wrongful death and survival causes of action. The Conaboy Defendants sought summary judgment citing the general two-year statute of limitations for personal injury actions, and arguing that the discovery rule did not apply here. The trial court granted summary judgment in favor of the Conaboy Defendants because it found “no evidence of affirmative misrepresentation or fraudulent concealment of the cause of death.” Reibenstein appealed.

Pennsylvania Appellate Court Opinion

Section 1303.513 of MCARE establishes the statutes of repose and statutes of limitations for medical professional liability claims. Subsection 1303.513(d) states: “(d) Death or survival actions.—If the claim is brought under 42 Pa.C.S. § 8301 (relating to death action) or 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.” (emphasis added)

Reibenstein argued that Dr. Barax’s concealment of his communications with Dr. Conaboy concerning Mrs. Whitman’s aneurysm is directly related to the cause of Mrs. Whitman’s death, and, therefore, based on subsection 1303.513(d), the two-year statute of limitations should have been equitably tolled. Dr. Conaboy argued that the plain language of subsection 1303.513(d) is not ambiguous and therefore, because Mrs. Whitman died of a ruptured abdominal aortic aneurysm, and because that is recorded as the cause of death on her death certificate, the statute of limitations may not be tolled.

Cause Of Death

The Pennsylvania Appellate Court stated that “cause of death” is not defined in Subsection 1303.513(d) or any other section of MCARE, and it did not find any controlling authority directly addressing the pertinent question here: whether “cause of death” as used in subsection 1303.513(d) means the immediate, medical cause of death, such as is ordinarily listed on the decedent’s death certificate, or includes conduct leading to the decedent’s death but that is not the immediate, medical cause of the death.

The Pennsylvania Appellate Court held: “We conclude that both interpretations are reasonable and that subsection 1303.513(d) is therefore ambiguous in this regard … The General Assembly’s inclusion of such an exception recognizes that wrongful death and survival actions may involve situations where the patient’s interest in fair compensation outweighs the interest in limiting medical malpractice insurance costs. It is in furtherance of the stated purpose of fair compensation that we interpret “affirmative misrepresentation or fraudulent concealment of the cause of death” to encompass those acts which caused the patient to die. Where a medical practitioner hides an action that was directly related to the cause of the patient’s death, the Commonwealth’s interest in redress outweighs the interest in control of medical malpractice insurance costs. Accordingly, we hold that “affirmative misrepresentation or fraudulent concealment of the cause of death” means affirmative misrepresentations about or fraudulent concealment of conduct the plaintiff alleges led to the decedent’s death.”

The Pennsylvania Appellate Court concluded: “In its order granting the Conaboy Defendants’ motion for summary judgment, the trial court held that because Mrs. Whitman died of an abdominal aortic aneurysm, and the death certificate lists aortic aneurysm as the cause of death, Reibenstein was not entitled to equitable tolling of the statute of limitations. Based on our interpretation of subsection 513(d), we are constrained to conclude that the trial court erred in concluding that Reibenstein’s claims were barred by the statute of limitation, and so erred in granting summary judgment in favor of Dr. Conaboy.”

Source Reibenstein v. Barax, 2020 PA Super 179.

If you or a loved one suffered harm due to medical malpractice in Pennsylvania or in another U.S. state, you should promptly find a Pennsylvania medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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This entry was posted on Friday, September 11th, 2020 at 5:23 am. Both comments and pings are currently closed.

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