MCARE; Statute of Limitations; Equitable Tolling
Reibenstein v. Barax, 236 A.3d 1162 (Pa. Super. 2020), allocatur granted May 4, 2021, appeal docket 32 MAP 2021
Section 1303.513(d) of the Medical Care Availability and Reduction of Error Act (MCARE) requires a claimant to commence a wrongful death or a survival action asserting a medical professional liability claim within two years after the death. However, this section also includes an equitable tolling provision for “affirmative misrepresentation or fraudulent concealment of the cause of death.” 40 P.S. 1303.513(d). As a matter of first impression, the Pennsylvania Supreme Court will consider application of the equitable tolling provision where the medical cause of death is correctly represented on the death certificate, but there is evidence of affirmative misrepresentation or fraudulent concealment of conduct that allegedly led to a patient’s death.
Superior Court summarized the relevant background of this case as follows:
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.” See Radiology Report, April 23, 2010, at 2, R.R. 100a.
Approximately one year after Mrs. Whitman’s death, in April 2011, the administratrix of Mrs. Whitman’s estate, Linda Reibenstein, commenced this suit and filed a complaint against Dr. Barax and his employer, Mercy Hospital, Scranton, asserting causes of action under the Wrongful Death Act and the Survival Act. As discovery proceeded, Reibenstein made several unsuccessful attempts to schedule Dr. Barax’s deposition. She obtained the trial court’s intervention and she finally deposed Dr. Barax in February 2015. Dr. Barax testified during this deposition 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. See Complaint, 6/03/16. The trial court consolidated the two cases.
Slip op. at 2-3. The trial court granted summary judgment in favor of the Conaboy defendants because the action was commenced more than two years after the death. The trial court concluded that because Whitman died of an abdominal aortic aneurysm, and the death certificate listed aortic aneurysm as the cause of death, thus Reibenstein was not entitled to equitable tolling of the statute of limitations under Section 1303.513(d) of the MCARE Act because there was “no evidence of ‘affirmative misrepresentation or fraudulent concealment of the cause of death.’” Slip op. at 2. Reibenstein appealed, arguing that the equitable tolling provision applied because there was evidence that Dr. Conaboy affirmatively misrepresented or fraudulently concealed the existence of an aneurysm that ultimately led to Whitman’s death.
Superior Court reversed the trial court, disagreeing that there was “no evidence” that Dr Conaboy misrepresented or concealed Whitman’s cause of death. In so concluding, the court held, as a matter of first impression, that affirmative misrepresentations about or fraudulent concealment of conduct that allegedly led to a patient’s death tolls the statute of limitations for medical professional liability claims. In so holding, Superior Court interpreted “cause of death” in Section 1303.513(d) of the MCARE Act as including “conduct leading to death,” not the medical cause of death as listed on the death certificate.
The Pennsylvania Supreme Court granted allocatur to consider the following issues, as stated by the Petitioner:
(1) Whether, in an issue of first impression and statewide importance, this Court should accept this appeal and rule that “cause of death”, as it appears in MCARE’s statute of limitations (40 P.S. § 1303.513(d) (“Statute of Repose”)), refers to medical cause of death, and not “conduct leading to death” (or legal cause of death) as Superior Court erroneously held, and vacated a Superior Court precedential decision that is directly at odds with MCARE’s plain meaning and stated purposes?
(2) Whether, in an issue of first impression and statewide importance, this Court should accept this appeal to clarify that the statute of limitations on a wrongful death or survival act claim may only be tolled under section 513(d) of MCARE (40 P.S. § 1303.513(d) (“Statute of Repose”)), where a plaintiff proves that the defendant against whom the claims are asserted (and not a third party) affirmatively misrepresented or fraudulently concealed decedent’s cause of death?