Statutes of Repose: Article I § 11 “Open Courts” Guarantee; MCARE
Yanakos v. UPMC, 2017 WL 3168991(Pa. Super. 2017) (unreported), allocatur granted March 28, 2018, appeal docket 10 WAP 2018
The Supreme Court granted allocatur to review Superior Court’s affirmance of the Allegheny County Court of Common Pleas’ decision in which that court held that the MCARE statute of repose does not violate the guarantee in Article I, § 11 of the Pennsylvania Constitution known as the “open courts” provision. Judge Ransom wrote for a unanimous panel that also included Judges Olson and Solano.
The Yanakoses, Christopher, Susan Kay and William, appealed to Superior Court from the trial court’s order entered in favor of UPMC and two individual physicians following the court’s grant of judgment on the pleadings. The panel adopted the statement of relevant facts and procedure from the trial court’s opinion as follows:
This matter concerns medical treatment that was performed in September  2003. At said time, [Appellant] Christopher Yanakos [(“Christopher”)] volunteered to donate a lobe of his liver to his mother, [Appellant] Susan Yanakos [(“Susan”)], as she was experiencing problems with her liver [due to Alpha-1 Antitrypsin Deficiency (“AATD”)] and in need of a donation. [Prior to the surgery, Appellant Christopher advised Appellee Thomas Shaw-Stiffel, M.D. (“Appellee ShawStiffel”) that other members of his family had AATD, although Christopher was unsure whether he too had the disorder. In a letter of August 2003, Appellee Shaw-Stiffel wrote to Appellee Amadeo Marcos, M.D., documenting the family history of the disorder and advising to await additional laboratory test results before moving forward.]  [Appellant] Christopher underwent various evaluations to determine whether his liver would be a suitable replacement.
 [Appellants] allege that [days after Appellee Shaw-Stiffel’s letter in August 2003,] [Appellant]-son Christopher tested positive for AATD , establishing that his liver was not functioning properly.  [Appellants] further allege that the existence of AATD disqualified Christopher as a potential donor and that the liver donation should have never proceeded with Christopher as the donor.
[Appellants] assert that it was not until June  2014 when [Susan again experienced problems with her liver that] they first discovered that [Appellant]-son Christopher had tested positive for AATD in the pre-surgery testing in August  2003. [Appellants] further assert that  [Appellees] maintained this information in the [Appellant]-son’s file since the testing of August  2003.  [Appellants’] complaint points to the aforesaid finding with Christopher’s test results to charge  [Appellees] with allegations of negligence and lack of informed consent.
 [Appellees] vigorously deny the allegations advanced by  [Appellants]; denying that [Appellant]-son was not a suitable donor. Additionally,  [Appellees] raise the affirmative defense of the statute of limitations, asserting that any perceived negligence occurred during 2003, well over the two[-]year statute of limitations available to  [Appellants] for their claim of negligence.
 [Appellees] recognize the statute of repose and  [Appellant’s] claim to an extended period of seven  years to file suit, but find the effective date applicable in the case sub judice as March 20, 2002.  [Appellees] maintain that  [Appellants] failed to meet their seven[-]year filing period by more than six  years.  [Appellants] filed suit on December 17, 2015, well past an extended date under the statute of repose of March 20, 2009, and even more than seven  years past the date [Appellants] claim of August 2003.
[In December 2015, Appellants filed a complaint against Appellees for damages arising out of the incident described above. In the complaint, Appellants Christopher and Susan both alleged that their injuries, including decreased pulmonary functionality, were a result of Appellees’ medical malpractice and lack of informed consent. Also in the complaint, Susan’s husband, William Ronald Yanakos, alleged that the Appellees’ negligence resulted in a lack of consortium.]  [Appellants] filed their certificates of merit as to the individual doctors and UPMC [in December 2015].  UPMC filed an answer and new matters [in March 2016], for each individual [Appellee, and Appellants filed a reply to new matter in May 2016].
[In July 2016], the [Appellees] filed a motion for judgment on the pleadings and brief in support. [Appellants filed a memorandum of law in opposition to Appellees’ motion on the pleadings and therein argued that (1) the foreign object exception to the MCARE Act statute of repose creates an unconstitutional classification of plaintiffs in violation of the equal protection and due process clauses of the Pennsylvania and United States Constitutions, (2) the statute of repose unconstitutionally violates Pennsylvania’s open courts guarantee, and (3) Appellees owed Appellants a continuing duty of care.] Following review of the parties’ briefs and  argument [in August 2016], [the trial court] granted  [Appellees’] motion for judgment on the pleadings.
Slip op. at 2-4 (footnote omitted).
The Yanakoses presented four issues for review, the first three of which challenged the statute of repose contained in Section 1303.513 of the Medical Care Availability and Reduction of Error Act (MCARE), 40 P.S. § 1303.513, which provides in pertinent part as follows:
1303.513. Statute of repose
(a) General rule.–Except as provided in subsection (b) or (c), 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.
(b) Injuries caused by foreign object.–If the injury is or was caused by a foreign object unintentionally left in the individual’s body, the limitation in subsection (a) shall not apply.
40 P.S. § 1303.513.
As to statutes of repose generally, and Section 1303.513 specifically, the panel offered the following insights:
Our Supreme Court has explained the significance of statutes of repose as follows:
A statute of repose … limits the time within which an action may be brought and is not related to the accrual of any cause of action; the injury need not have occurred, much less have been discovered. Unlike an ordinary statute of limitations which begins running upon accrual of the claim, the period contained in a statute of repose begins when a specific event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted.
Abrams v. Pneumo Abex Corp., 981 A.2d 198, 211 (Pa. 2009) (citing City of McKeesport v. Workers’ Compensation Appeal Board (Miletti), 746 A.2d 87, 91 (Pa. 2000) (citations and emphasis omitted)).
Subsection 1303.513(a) of the MCARE Act statute of repose sets forth a maximum allowable period of time (seven years) to file medical professional liability claims, and this time period commences on the date of the act of alleged negligence. Matharu v. Muir, 86 A.3d 250, 263 (Pa. Super. 2014). Subsection 1303.513(b) of the statute permits the filing of medical malpractice claims beyond seven years after the date of the alleged negligence in the case of a foreign object left in a patient’s body. Id. at 265. If the MCARE Act statute of repose is applicable and a claimant does not meet this exception, all claims pursuant to the alleged negligent action are time-barred pursuant to 1303.513(a). Bulebosh v. Flannery, 91 A.3d 1241, 1243 (Pa. Super. 2014).
In the instant case, the MCARE statute of repose is applicable as the alleged negligent action, the surgery, occurred in September 2003. Complaint, 12/17/15, at 5. Appellants filed their complaint in December 2015, over twelve years after the surgery. Accordingly, Appellants’ claims are time-barred. Nevertheless, Appellants present a series of arguments challenging the constitutionality of this exception.
As an initial matter, we note that legislative enactments, such as the MCARE Act statute of repose, enjoy a strong presumption of constitutionality. Edmonds by James v. W. Pennsylvania Hosp. Radiology Assocs. of W. Pennsylvania P.C., 607 A.2d 1083, 1087 (Pa. Super. 1992). A “party raising a constitutional challenge has a heavy burden of rebutting the presumption of constitutionality and demonstrating that the statute clearly, plainly, and palpably violates constitutional precepts.” Dranzo v. Winterhalter, 577 A.2d 1349 (Pa. Super. 1990).
Slip op. at 6-7 (footnotes omitted).
After a lengthy discussion (Slip op. at 8-15) disposing or the Yanakoses’ first two claims, the panel turned to the claim that the MCARE stature of repose violated Article I, Section 11 of the Pennsylvania Constitution, which provides as follows:
All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.
The panel made short work of this claim, addressing it in a few sentences:
Our Supreme Court has previously rejected an open courts argument in the context of statutes of repose, as Section 11 does not prohibit the Legislature from abolishing a common law right of action without enacting a substitute means of redress. Freezer Storage, Inc. v. Armstrong Cork Co., 382 A.2d 715, 720 (Pa. 1978); see also Columbia Gas of Pennsylvania, Inc. v. Carl E. Baker, Inc., 667 A.2d 404, 410 (Pa. Super. 1995). As such, the trial court properly concluded that the MCARE Act statute of repose was constitutional.
Slip op. at 15. After declining the Yanakoses’ plea to “hold that a physician has a continuing duty to inform a patient of test results and that the MCARE Act repose period should begin only upon discovery of the results” the panel affirmed the trial court. The Yanakoses sought review and on March 28, 2018, the Supreme Court granted allocatur, limited to the following issue, as stated by the Yanakoses:
Does the MCARE Statute of Repose violate the Open Courts guarantees of the Pennsylvania Constitution, Article I, §11, where it arbitrarily and capriciously deprives some patients of any access to courts, but permits actions by similarly situated patients?
One may wonder, given that the Supreme Court specifically addressed this issue in 1978, if the allocatur grant signals a willingness to revisit what Superior Court obviously viewed as a settled question requiring no more than a perfunctory discussion. Otherwise, there would seem to be little reason to review this issue vis-a-vis the Yanakoses’ other claims regarding the MCARE statute of repose.