Summary
In Dubose v. Quinlan, 173 A.3d 634, 643 (Pa. 2017), the Pennsylvania Supreme Court focused on subsection (d) to decide whether it constituted a statute of limitations or a statute of repose.Id. at 642.
Summary of this case from Hodges v. Sunrise Senior Living Mgmt.Opinion
No. 21 EAP 2016 No. 22 EAP 2016
11-22-2017
Robert DUBOSE, Administrator of the Estate of Elise Dubose, Deceased v. Mark QUINLAN, Donna Brown, RNC, BSN, Albert Einstein Medical Center d/b/a Willowcrest, Willowcrest and Jefferson Health System Appeal of: Willowcrest Nursing Home, Albert Einstein Healthcare Network, Albert Einstein Medical Center d/b/a Willowcrest and Willowcrest Robert Dubose, Administrator of the Estate of Elise Dubose, Deceased, Appellee v. Willowcrest Nursing Home, and Albert Einstein Healthcare Network, Appellants
James Michael Doyle, Esq., Sheila Ann Haren, Esq., Karyn Dobroskey Rienzi, Esq., Post & Schell, P.C., for Appellant. Rhonda Hill Wilson, Esq., Law Office of Rhonda Hill Wilson, P.C., for Appellee. Rosalind T. Kaplan, Esq., Jarve Kaplan Granato Starr, LLC, for Appellee Amicus Curiae.
James Michael Doyle, Esq., Sheila Ann Haren, Esq., Karyn Dobroskey Rienzi, Esq., Post & Schell, P.C., for Appellant.
Rhonda Hill Wilson, Esq., Law Office of Rhonda Hill Wilson, P.C., for Appellee.
Rosalind T. Kaplan, Esq., Jarve Kaplan Granato Starr, LLC, for Appellee Amicus Curiae.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
OPINION
JUSTICE MUNDY
In this appeal by allowance, we consider whether the Superior Court applied the correct statute of limitations for a survival action in a medical professional liability case. For the reasons set forth below, we conclude the statute of limitations for medical professional liability cases in the form of wrongful death or survival actions is two years from the time of the decedent's death. Accordingly, we affirm the judgment of the Superior Court.
The facts and procedural history of this medical professional liability action, asserting negligent care at a nursing home, are as follows. On July 25, 2005, Elise Dubose was admitted to Albert Einstein Medical Center (Einstein) after she fell in her home and sustained severe head injuries, including anoxia and a brain injury. On August 9, 2005, Mrs. Dubose was transferred and admitted to Willowcrest Nursing Home (Willowcrest), a division of Einstein, where she was diagnosed with Type II diabetes, respiratory failure necessitating a ventilator, chronic obstructive pulmonary disease, and several pressure ulcers (bedsores ). On September 6, 2005, to treat the ulcers, a physician ordered a flexor bed and frequent repositioning of Mrs. Dubose. Willowcrest's staff negligently failed to follow the physician's order, resulting in a deterioration of Mrs. Dubose's existing pressure ulcers and proliferation of new ones to other parts of her body. During a hospitalization at Einstein from January 30 to February 14, 2007, Mrs. Dubose developed additional bedsores on her right heel and shin, on her right scapula (upper back), and on her lower back. In addition, while at Willowcrest from 2005 to 2007, Mrs. Dubose suffered malnourishment, dehydration, conscious pain from the bedsores, bone infection, and a sepsis systemic infection.
One of the ulcers, located at the sacral region of the spine, which Mrs. Dubose developed during her initial July 25, 2005 hospitalization, gradually increased in size from August 9, 2005 to July 2007. In July 2007, the sacral ulcer became infected with bacteria from contact with feces. This infection caused sepsis in Mrs. Dubose in September 2007, and she was admitted to Einstein with sepsis on September 12, 2007. On October 18, 2007, Mrs. Dubose died from sepsis and multiple pressure sores.
On August 13, 2009, Robert Dubose, as administrator for the Estate of Elise Dubose, filed a complaint against Willowcrest and Albert Einstein Healthcare Network (collectively Appellants). This complaint contained counts for negligence on behalf of Mrs. Dubose (survival action ), and a wrongful death action to compensate Mrs. Dubose's survivors. Additionally, on September 14, 2009, Robert Dubose commenced a second case by filing a praecipe to issue a writ of summons. On October 7, 2009, Mr. Dubose filed a complaint in the second case, asserting similar survival and wrongful death actions based on negligence, requesting punitive damages, and naming as defendants Mark Quinlan, Willowcrest's administrator; Donna Brown, Willowcrest's director of nursing; Einstein; Willowcrest; and Jefferson Health System. On October 18, 2010, the trial court issued an order consolidating the two cases pursuant to Pennsylvania Rule of Civil Procedure 213(a).
Act of June 30, 1972, P.L. 500, No. 164.
Act of 1855, P.L. 309; Pa.R.C.P. 2202(a).
In October 2012, the case proceeded to a jury trial, which resulted in a mistrial. A second jury trial was held from February 13, 2013 to March 13, 2013. On March 13, 2013, the jury returned a verdict in favor of Mr. Dubose and against Appellants in the amount of $125,000.00 on the wrongful death action and $1,000,000.00 on the survival action. The jury apportioned liability as 60% to Willowcrest, 25% to Einstein Healthcare Network, and 15% to Donna Brown. Further, on March 21, 2013, following a bifurcated punitive damages trial, the same jury awarded $875,000.00 in punitive damages against Appellants. The trial court granted the defendants' post-trial motions in part in the form of judgment notwithstanding the verdict (JNOV), dismissing the action as against Donna Brown because she was an employee of Willowcrest, but the trial court did not reduce the amount of the verdict. The trial court denied the remaining post-trial motions for a new trial, for JNOV, and for remittitur, and entered judgment on the verdict. Regarding the subject of this appeal, the trial court explained that Mr. Dubose's survival action was timely filed pursuant to Section 513(d) of the Medical Care Availability and Reduction of Error Act (MCARE), 40 P.S. §§ 1303.501 – 1303.516, which permits plaintiffs to bring survival actions within two years of death. Trial Ct. Op., 6/27/14, at 11. As alternative support, the trial court applied the "discovery rule" and concluded that Mrs. Dubose's comatose condition prevented her from knowing or reasonably discovering her injuries before her death. Id. at 12. Appellants appealed to the Superior Court.
Relevant to this appeal, Appellants argued Mr. Dubose's survival claims were barred by the two-year statute of limitations for personal injury actions, which began to run at the time of Mrs. Dubose's injury in 2005. Appellants asserted that a survival action is distinct from a wrongful death action. A survival action is merely a continuation of a cause of action that accrued to the plaintiff's decedent while the decedent was alive, and the statute of limitations begins to run when the decedent is injured. On the other hand, a wrongful death action accrues to the decedent's heirs when the decedent dies of such an injury, and its statute of limitations begins to run at the decedent's death. Appellants asserted that once the statute of limitations expires on the decedent's cause of action, it cannot form the basis for a survival action following the decedent's death. Appellants' Super. Ct. Brief at 12–14 (citing Baumgart v. Keene Bldg. Prods. Corp. , 430 Pa.Super. 162, 633 A.2d 1189 (1993) (en banc)).
42 Pa.C.S. § 5524 provides a two-year statute of limitations for personal injury actions:
§ 5524. Two year limitation
The following actions and proceedings must be commenced within two years:
...
(2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.
42 Pa.C.S. § 5524(2).
Applying these principles, Appellants argued that the statute of limitations for Mrs. Dubose's medical professional liability claim began when she sustained the pressure ulcer in 2005. The two-year statute of limitations on the survival actions expired in 2007, and therefore the survival actions Mr. Dubose filed in 2009 were time-barred.
Further, Appellants disputed the trial court's holding that the survival action was rendered timely by Section 513 of MCARE, which provides:
§ 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.
(c) Injuries of minors.— No cause of action asserting a medical professional liability claim may be commenced by or on behalf of a minor after seven years from the date of the alleged tort or breach of contract or after the minor attains the age of 20 years, whichever is later.
(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.
...
40 P.S. § 1303.513(a) - (d).
Appellants contended the trial court misapprehended MCARE to revive causes of action that the statute of limitations barred. The trial court relied on Matharu v. Muir , 86 A.3d 250, 263 (Pa. Super. 2014) (en banc), in which then-Judge, now-Justice, Donohue authored a unanimous, en banc opinion holding "subsection 1303.513(d) does not set forth a statute of repose at all, but rather is a statute of limitation[,] ... and survival claims under 42 Pa.C.S. § 8302 must be commenced within two years after the death, unless there is fraudulent misrepresentation or concealment as to the cause of death." Matharu , 86 A.3d at 263. Appellants attempted to distinguish Matharu because that case involved a timely survival action, and this case is based on an untimely survival action. According to Appellants, the statute of limitations on Mrs. Dubose's medical professional liability action expired before her death, so a survival claim was already barred before her death. MCARE does not permit an already-barred claim to become timely through the survival statute.
In the alternative, Appellants argued that even if the statute of limitations ran from the date of Mrs. Dubose's October 17, 2007 death, certain claims added in amended complaints after October 17, 2009 were time-barred. Appellants narrowly construed the Estate's survival action as solely based on Appellants' negligent wound care, resulting in a pressure ulcer. Appellants contended that after the statute of limitations expired, the trial court permitted the Estate to amend its complaints to add new facts to support additional malpractice claims. According to Appellants, these newly added facts "alleged conduct of dietitians, nutritionists, physical therapists, occupational therapists, rehabilitation therapists, recreational therapists and social workers, relating to nutrition and hydration, diabetes, urinary tract infections, urinary incontinence, acute renal failure and anemia...." Appellants' Super. Ct. Br. at 21–22. Appellants alleged these later-added claims prejudiced them because they resulted in a verdict of $1,000,000 for pain and suffering.
In his Superior Court brief, Mr. Dubose emphasized that Mrs. Dubose was under constant care at Appellants' facilities from August 2005 through October 2007, during which time she developed ten pressure ulcers and other conditions, such as dehydration. The cause of Mrs. Dubose's death was sepsis combined with the ten pressure wounds. Thus, Mr. Dubose contended that there were new, additional injuries to Mrs. Dubose continuously until the date of her death.
In the alternative, Mr. Dubose then asserted that the "discovery rule" tolled the statute of limitations. Under the "discovery rule," a cause of action does not accrue until the plaintiff discovers, or should have discovered, the injury. Mr. Dubose invoked the discovery rule because Mrs. Dubose did not have the mental or physical capabilities to exercise reasonable diligence and determine the facts of her injuries or whether she had a claim for medical negligence. Mr. Dubose refuted Appellants' argument that Mr. Dubose had Mrs. Dubose's power of attorney, so his knowledge of the injuries was more relevant than her knowledge. Mr. Dubose pointed out that Appellants' waived the issue by failing to introduce the complete power of attorney document at trial.
Mr. Dubose maintained Section 513(d) of MCARE permitted him to bring the survival action within two years of Mrs. Dubose's death. In support, he stated that the Matharu Court held that the specific language of Section 513(d) controlled over the general statute of limitations in 42 Pa.C.S. § 5524(2).
Lastly, Mr. Dubose argued no new causes of action were added after the statute of limitations expired. Specifically, the language in paragraph 11 of the original complaint avers while a resident at Willowcrest, Mrs. Dubose sustained serious injuries included but not limited topressure ulcers, which contributed to her death. Upon consideration of Appellants' preliminary objections, the trial court ordered Mr. Dubose to file a more specific complaint. Mr. Dubose contended that he should not be penalized for complying with that court order.
A panel of the Superior Court unanimously affirmed the trial court's order. It held Mr. Dubose's survival action was timely under Section 513(d) of MCARE because Mr. Dubose commenced the action within two years of Mrs. Dubose's death. The Superior Court reasoning was contained in the following paragraph:
First, appellants claim that the survival action was filed beyond the statute of limitations. According to appellants, the statute began to run in 2005, when Mrs. Dubose developed a pressure wound. (Appellants' brief at 14.) Appellants are mistaken. The MCARE Act[ ] clearly provides that wrongful death and survival actions may be brought within two years of death. Mrs. Dubose died on October 18, 2007, and the plaintiff filed two complaints, one in August 2009, and one in September 2009, which were ultimately consolidated. Both were filed within two years of the decedent's death. Therefore, the Survival Act claim was timely filed within the two-year statute of limitations.
§ 1303.513. Statute of repose
(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.
40 [P.S.] § 1303.513(d).
Dubose v. Quinlan , 125 A.3d 1231, 1238 (Pa. Super. 2015) (footnote omitted).
The majority's interpretation of Section 513(d) also creates an unnecessary distinction between the accrual of different types of survival claims, whereby survival claims based upon professional medical negligence accrue at the time of death, while other survival claims, such as those alleging a defective product, accrue at the time of injury.
Moreover, as Appellants explain, Matharu 's reasoning rests, in part, on the incorrect premise that the statute of limitations in Section 5524(2) of the Judicial Code and the prescription of Section 513(d) of the MCARE Act are entirely coterminous. Compare Matharu , 86 A.3d at 263 ("[T]he statute of limitations set forth in subsection [513(d) ] is the exact same statute of limitations that was already applicable[.]"), with Pastierik , 514 Pa. at 523, 526 A.2d at 326 (explaining that the statute of limitations pertaining to survival actions encompassed a concept of accrual upon injury and inquiry notice, which is not reflected on the face of Section 513(d)); see also Brief for Appellants at 30 (observing that Matharu "overlooked the fact that, under 42 Pa.C.S. § 5524(2) and § 5502(a), survival actions actually accrue on the date of the decedent's injury, which may occur before death").
--------
The Superior Court then addressed Appellants' issue that Mr. Dubose added causes of action in his amended complaints after the statute of limitations expired. Id. The court found Appellants waived this issue in the following analysis:
Appellants also complain that the plaintiff was allowed to add new causes of action in his amended complaints, outside the statute of limitations. (Appellants' brief at 21.) This claim was not raised in appellants' Rule 1925(b) statement, nor was it addressed by the trial court. Therefore, it is waived. Pa.R.A.P. 1925(b)(4)(vii) ; Lazarski v. Archdiocese of Philadelphia , 926 A.2d 459, 463–464 (Pa. Super. 2007), appeal denied , 594 Pa. 714, 937 A.2d 446 (2007) (citations omitted).
Id. The Superior Court affirmed the judgment entered in the court of common pleas.
Appellants subsequently filed in this Court a petition for allowance of appeal, which the Court granted to consider the following question.
Do special and important reasons exist which mandate this Court's intervention, since the Superior Court improperly lengthened, potentially significantly, the statute of limitations applicable to survival actions in medical professional liability claims contrary to 42 Pa.C.S. §§ 5542(2) and 5502(A), all legal authority emanating from this Court, and the intent of the legislature when enacting the MCARE Act's statute of repose?
Dubose v. Quinlan , 635 Pa. 504, 138 A.3d 610, 610 (2016) (per curiam).
Based on this Court's focus on this issue, the parties have presented the following arguments. Appellants argue that the Superior Court's interpretation of Section 513(d) as a statute of limitations conflicts with precedent from this Court requiring survival actions to be commenced within two years of the date of the decedent's injury. Appellants' Brief at 23. The Superior Court's interpretation results in two different statutes of limitations for survival actions: two years from the date of death for medical professional liability claims and two years from the date of injury for all other survival actions. Id. Instead, Appellants contend that Section 513(d), consistent with its title, is a statute of repose that establishes the maximum allowable time period—two years from the date of death—for filing survival actions. Id. at 24.
As a statute of repose, Appellants contend Section 513(d) does not affect the two-year statute of limitations in 42 Pa.C.S. § 5524(2) for personal injury claims, which begins to run when the decedent knew, or should have known, of the decedent's injury and its cause. Id. Appellants argue that the cause of action accrues and the statute of limitations begins to run if the decedent knew or should have known of the injury and its cause, even if the injury occurs before the decedent's death. Id.
In support of their interpretation of Section 513(d) as a statute of repose, Appellants explain that this Court has recognized that survival actions are not new, independent causes of action; instead, they permit the decedent's personal representative to pursue a cause of action that accrued to the decedent before death. Id. at 25 (citing Pastierik v. Duquesne Light Co. , 514 Pa. 517, 526 A.2d 323, 326 (1987) ; Anthony v. Koppers Co. , 496 Pa. 119, 436 A.2d 181, 185 (1981) ; Pezzulli v. D'Ambrosia , 344 Pa. 643, 26 A.2d 659, 661 (1942) ). Because the cause of action will accrue when the decedent knew or should have known of an injury, and a survival action is simply a continuation of such a cause of action, the statute of limitations for a survival action begins to run at the time of the underlying tort and does not "reset" upon the decedent's death. Id. (citing Pastierik , 526 A.2d at 326–27 ; Anthony , 436 A.2d at 183–84 ). Appellants assert that once the statute of limitations expires on the underlying tort, a survival action is likewise time-barred. Id. at 26–27 (citing Baumgart v. Keene Bldg. Prods. Corp. , 430 Pa.Super. 162, 633 A.2d 1189 (1993) (en banc)). This is consistent with reading Section 513(d) as a statute of repose that sets the latest date that a survival action can be commenced. Id. at 36.
Applying these principles to this case, Appellants maintain that Mrs. Dubose's medical negligence cause of action accrued when her sacral ulcer developed in 2005, and Mrs. Dubose and Mr. Dubose were aware of the injury and attributed it to negligent care. Id. at 27. Further, because Mr. Dubose held Mrs. Dubose's power of attorney with the right to bring a lawsuit on her behalf, Appellants argue that his knowledge of Mrs. Dubose's injury should be imputed to Mrs. Dubose. Id. at 38–51. As this is an action for personal injury, it was subject to a two-year statute of limitations, which Appellants assert expired in 2007. Id. at 28. Because Mr. Dubose did not commence the survival action until 2009, Appellants conclude it was time-barred. Id.
Additionally, Appellants argue that the Superior Court erred in this case and in its previous decision of Matharu which also concluded that Section 513(d) is a statute of limitations that runs from the date of death. Id. at 29 (citing Matharu , 86 A.3d at 263 ). Appellants emphasize that this results in two different statutes of limitations for survival actions. Id. at 30. To illustrate, Appellants contemplate a decedent injured by a defective product in 2005, but who does not bring a lawsuit before her death in 2008. Id. In such a case, a survival action brought by the decedent's estate would be time-barred. Id. However, under the interpretation of Section 513(d) adopted by the Superior Court, if a decedent is injured by medical negligence in 2005, but does not file a lawsuit before her death in 2008, the decedent's estate has an additional two years to file a survival action from the date of her 2008 death. Id. at 31. Appellants argue that the General Assembly did not intend to create such a result. Id. at 31.
Further, the Superior Court's interpretation of Section 513(d) contravenes the legislative purpose of MCARE, which Appellants assert was to curb "the medical malpractice crisis gripping this Commonwealth." Id. at 32. The Superior Court's decision in this case results in the revival of a survival claim that accrued four years before decedent died, which Appellants argue is inconsistent with the General Assembly's intent in passing MCARE. Id. at 33–35. For these reasons, Appellants request that we reverse the decisions of the trial court and Superior Court and grant JNOV in favor of Appellants on the survival claim.
The effective date of most MCARE provisions was March 20, 2002. Act 13 of 2002, P.L. 154, No. 13 § 5108. The Administrative Office of Pennsylvania Courts compiled statistics showing that the number of medical malpractice cases newly filed in Pennsylvania has decreased from an average of 2,733 in 2000–02 to 1,530 new cases filed in 2015, which is a 44.0% reduction. See Pennsylvania Medical Malpractice Case Filings (Oct. 11, 2016), http://www.pacourts.us/assets/files/setting-2929/file-4474.pdf?cb=382360.
In the alternative, Appellants argue they were entitled to partial JNOV because Mr. Dubose's amended complaints added new causes of action after the statute of limitations expired. We decline to address this claim because it is outside the scope of the grant of allowance of appeal, which was limited to whether "the Superior Court improperly lengthened, potentially significantly, the statute of limitations applicable to survival actions in medical professional liability claims ...." Dubose , 138 A.3d at 610.
In response to Appellants' arguments, Mr. Dubose initially contends that the discovery rule applies in this case because Appellants admitted that Mrs. Dubose was brain damaged while in their care. Mr. Dubose's Brief at 16. Due to her mental disability, Mrs. Dubose was unable to investigate the nature and cause of her injuries. Id. Because Mrs. Dubose lacked the awareness of her injury and its cause, a medical professional liability claim did not accrue to her. Id. at 17 (citing Miller v. Phila. Geriatric Ctr. , 463 F.3d 266 (3d Cir. 2006) ; Zeidler v. United States , 601 F.2d 527 (10th Cir. 1979) ). Mr. Dubose argues Appellants' reliance on Mrs. Dubose's power of attorney was waived because Appellants did not produce the entire power of attorney document until the case was on appeal to the Superior Court. Id. at 30. Therefore, the power of attorney was not part of the certified record, even though Appellants had possession of a power of attorney document since 2006. Id. at 31.
We do not address Mr. Dubose's alternative argument for affirmance based on the discovery rule because we conclude the survival action was timely filed under Section 513(d).
Additionally, Mr. Dubose contends that while the sacral wound appeared in 2005, the complaint alleged a course of negligence against Mrs. Dubose that resulted in multiple injuries from 2005 to 2007, including additional pressure wounds, sepsis, hypertension, and acute renal failure. Id. at 19–20. Accordingly, Mr. Dubose contends this case involves more negligence than Appellants' simplification of "one pressure sore that developed in 2005." Id. at 20. Instead, Mr. Dubose notes that Mrs. Dubose died from septic shock, caused by multiple pressure wounds, and dehydration. Id.
Further, Mr. Dubose contends the plain language of Section 513(d) states that medical professional liability claims in the form of wrongful death and survival actions may be brought within two years of decedent's death. Id. at 21. Mr. Dubose argues that because the text of Section 513 is not ambiguous, we merely need to give effect to that language and not consult any principles of statutory construction. Id. Mr. Dubose notes that the legislature had a dual purpose in enacting MCARE: to fairly compensate the victims of medical negligence and to promote affordable medical professional liability insurance for medical providers. Id. at 22 (citing Osborne v. Lewis , 59 A.3d 1109 (Pa. Super. 2012) ). Mr. Dubose asserts this dual purpose is not at odds with permitting wrongful death and survival actions to accrue at the time of the decedent's death. Id. Mr. Dubose posits that this favorable provision for medical professional liability plaintiffs may have been in exchange for requiring certificates of merit upon commencing an action and the seven-year statute of repose for all medical professional liability actions. Id. at 23. In support, Mr. Dubose directs us to 42 Pa.C.S. § 5524(8), which alters the accrual date for injuries or deaths related to asbestos from when the plaintiff was injured to when the plaintiff was formally diagnosed with an asbestos-related disease. Id. at 23–24 (citing Wygant v. Gen. Elec. Co. , 113 A.3d 310 (Pa. Super. 2015) ). Similarly, Mr. Dubose argues that the legislature similarly extended the deadline for filing a survival action in medical professional liability cases resulting in death to two years from the date of death. Id. at 24.
In additional support of his plain language argument, Mr. Dubose points out that the most important distinction between a statute of repose and a statute of limitations is the act triggering the period of time in which a plaintiff must file a lawsuit. Id. at 25. Statutes of limitations begin to run when the cause of action accrues, which is usually the time a plaintiff is injured. Id. at 25 (citing 42 Pa.C.S. § 5502(a) ; Graver v. Foster Wheeler Corp. Appeal , 96 A.3d 383 (Pa. Super. 2014) ; Adamski v. Allstate Ins. Co. , 738 A.2d 1033 (Pa. Super. 1999) ). In contrast, statutes of repose focus on the defendant's conduct and begin to run when the defendant completes a specified act, and statutes of repose may operate to bar a lawsuit before the cause of action even accrues to the plaintiff. Id. at 26 (citing McConnaughey v. Bldg. Components, Inc. , 536 Pa. 95, 637 A.2d 1331, 1332 n.1 (1994) ).
Applying this distinction to the plain language Section 513, Mr. Dubose argues Section 513(d) is a statute of limitations because it permits the plaintiff to bring a cause of action within two years of the victim's death, and Section 513(a) is a statute of repose because it limits the time in which to file a survival action to seven years from the date of the tort. Id. at 27. Mr. Dubose contends there is no conflict between these two subsections. We begin our analysis by noting that this case requires us to review the Superior Court's affirmance of the trial court's decision to deny Appellants' motion for JNOV regarding Mr. Dubose's survival action. We review a trial court's grant or denial of JNOV for an abuse of discretion or an error of law. Reott v. Asia Trend, Inc , 618 Pa. 228, 55 A.3d 1088, 1093 (2012) (citation omitted). The question upon which we granted allowance of appeal—whether the Superior Court correctly interpreted the statute of limitations for survival actions under MCARE—is a matter of statutory interpretation. See Gilbert v. Synagro Cent., LLC , 634 Pa. 651, 131 A.3d 1, 17 (2015) (citations omitted). As statutory interpretation is a question of law, our standard of review is de novo and our scope of review is plenary. Reott , 55 A.3d at 1093 (citation omitted).
Similarly, the Pennsylvania Association for Justice (PAJ) filed an amicus curiae brief in support of Mr. Dubose. Therein, it argues that Section 513(d) establishes that a cause of action for a wrongful death or survival brought under the MCARE act accrues at the time of the decedent's death. PAJ Brief at 10. According to PAJ, the general, seven-year statute of repose in Section 513(a) curtails the potential application of the discovery rule in these cases. Id. PAJ notes that in Matharu , the Superior Court held that MCARE controlled over the general personal injury statute of limitations in 42 Pa.C.S. § 5524. Id. at 11. For MCARE wrongful death and survival actions, the two-year period begins to run at the patient's death. Id. (citing Matharu , 86 A.3d at 263 ). PAJ does not dispute Appellants' claim that this creates a different statute of limitations for medical malpractice actions; however, PAJ notes it is the within the legislature's power to do so. Id. This is consistent with the legislatively stated purpose of MCARE. Id. at 12.
In interpreting a statute, this Court must "ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions." 1 Pa.C.S. § 1921(a). To do so, we begin by considering the plain meaning of the statute's language. Scungio Borst & Assocs. v. 410 Shurs Lane Developers, LLC , 636 Pa. 621,146 A.3d 232, 238 (2016). If the statute's plain language is unambiguous, we must apply it without employing familiar canons of construction and without considering legislative intent. Id. ; 1 Pa.C.S. § 1921(b) ("When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit"). Further, the Statutory Construction Act states that the headings of a statute do not control the meaning of its plain language, but may be considered to aid in construction. 1 Pa.C.S. § 1924 ; see also Commonwealth v. Magwood , 503 Pa. 169, 469 A.2d 115, 119 (1983) ("It is also a 'well-established rule' that the title 'cannot control the plain words of the statute' and that even in the case of ambiguity it may be considered only to 'resolve the uncertainty' ") (quoting Sutherland Statutory Construction § 47.03 (Sands 4th ed. 1973)).
Even though Appellants and Mr. Dubose advocate different interpretations of Section 513(d) of MCARE, neither party argues the statute's language is ambiguous.
To resolve this case, we must determine whether Section 513(d) is a statute of repose for survival and wrongful death actions or a statute of limitations that modifies the accrual date for survival actions. The United States Supreme Court has explained the distinctions between a statute of repose and a statute of limitations:
Statutes of limitations and statutes of repose both are mechanisms used to limit the temporal extent or duration of liability for tortious acts. Both types of statute can operate to bar a plaintiff's suit, and in each instance time is the controlling factor. There is considerable common ground in the policies underlying the two types of statute. But the time periods specified are measured from different points, and the statutes seek to attain different purposes and objectives....
In the ordinary course, a statute of limitations creates "a time limit for suing in a civil case, based on the date when the claim accrued." Black's Law Dictionary 1546 (9th ed. 2009) (Black's); see also Heimeshoff v. Hartford Life & Accident Ins. Co. , 571 U.S. –––, ––––, 134 S.Ct. 604, 610 (2013) ("As a general matter, a statute of limitations begins to run when the cause of action " 'accrues' "—that is,
when 'the plaintiff can file suit and obtain relief' " (quoting Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., Inc. , 522 U.S. 192, 201 [118 S.Ct. 542, 139 L.Ed.2d 553] (1997) ). Measured by this standard, a claim accrues in a personal-injury or property-damage action "when the injury occurred or was discovered." Black's 1546....
A statute of repose, on the other hand, puts an outer limit on the right to bring a civil action. That limit is measured not from the date on which the claim accrues but instead from the date of the last culpable act or omission of the defendant. A statute of repose "bar[s] any suit that is brought after a specified time since the defendant acted (such as by designing or manufacturing a product), even if this period ends before the plaintiff has suffered a resulting injury." Black's 1546. The statute of repose limit is "not related to the accrual of any cause of action; the injury need not have occurred, much less have been discovered." 54 C.J.S., Limitations of Actions § 7, p. 24 (2010) (hereinafter C.J.S.). The repose provision is therefore equivalent to "a cutoff," Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson , 501 U.S. 350, 363 [111 S.Ct. 2773, 115 L.Ed.2d 321] (1991), in essence an "absolute ... bar" on a defendant's temporal liability, C.J.S. § 7, at 24.
Although there is substantial overlap between the policies of the two types of statute, each has a distinct purpose and each is targeted at a different actor. Statutes of limitations require plaintiffs to pursue "diligent prosecution of known claims." Black's 1546. Statutes of limitations "promote justice by preventing surprises through [plaintiffs'] revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared." Railroad Telegraphers v. Railway Express Agency, Inc. , 321 U.S. 342, 348–349 [64 S.Ct. 582, 88 L.Ed. 788] (1944). Statutes of repose also encourage plaintiffs to bring actions in a timely manner, and for many of the same reasons. But the rationale has a different emphasis. Statutes of repose effect a legislative judgment that a defendant should "be free from liability after the legislatively determined period of time." C.J.S. § 7, at 24 ; see also School Board of Norfolk v. United States Gypsum Co. , 360 S.E.2d 325, 328 (1987) ("[S]tatutes of repose reflect legislative decisions that as a matter of policy there should be a specific time beyond which a defendant should no longer be subjected to protracted liability" (internal quotation marks omitted)). Like a discharge in bankruptcy, a statute of repose can be said to provide a fresh start or freedom from liability. Indeed, the Double Jeopardy Clause has been described as "a statute of repose" because it in part embodies the idea that at some point a defendant should be able to put past events behind him. Jones v. Thomas , 491 U.S. 376, 392 [109 S.Ct. 2522, 105 L.Ed.2d 322] (1989) (Scalia, J., dissenting).
One central distinction between statutes of limitations and statutes of repose underscores their differing purposes. Statutes of limitations, but not statutes of repose, are subject to equitable tolling, a doctrine that "pauses the running of, or 'tolls,' a statute of limitations when a litigant has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action." Lozano v. Montoya Alvarez , 572 U.S. ––––, 134 S.Ct. 1224, 1231–1232 (2014). Statutes of repose, on the other hand, generally may not be tolled, even in cases of extraordinary
circumstances beyond a plaintiff's control. See, e.g. , Lampf , supra , at 363 ("[A] period of repose [is] inconsistent with tolling"); 4 C. Wright & A. Miller, Federal Practice and Procedure § 1056, p. 240 (3d ed. 2002) ("[A] critical distinction is that a repose period is fixed and its expiration will not be delayed by estoppel or tolling"); Restatement (Second) of Torts § 899, Comment g (1977).
Equitable tolling is applicable to statutes of limitations because their main thrust is to encourage the plaintiff to "pursu[e] his rights diligently," and when an "extraordinary circumstance prevents him from bringing a timely action," the restriction imposed by the statute of limitations does not further the statute's purpose. Lozano , supra , at ––––, 134 S.Ct. at 1231–1232. But a statute of repose is a judgment that defendants should "be free from liability after the legislatively determined period of time, beyond which the liability will no longer exist and will not be tolled for any reason." C.J.S. § 7, at 24....
CTS Corp. v. Waldburger , ––– U.S. ––––, 134 S.Ct. 2175, 2182–83, 189 L.Ed.2d 62 (2014) (parallel citations omitted); accord Vargo v. Koppers Co., Inc., Eng'g Constr. Div. , 552 Pa. 371, 715 A.2d 423, 425 (1998).
With these distinctions in mind, we discuss the nature of a survival action. "At common law, an action for personal injury did not survive death [.]" Pennock v. Lenzi , 882 A.2d 1057, 1064 n.8 (Pa. Cmwlth. 2005) (citing Moyer v. Phillips , 462 Pa. 395, 341 A.2d 441, 442–43 (1975) ). The General Assembly, in 42 Pa.C.S. § 8302, altered this common law rule and provided that causes of action survive a plaintiff's death:
42 Pa.C.S. § 8302. Survival action
All causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants.
This Court has explained that a survival action is not an independent cause of action, but a continuation of a cause of action that accrued to the decedent, and the latest time when the statute of limitations runs is at the decedent's death.
The statute [of limitations] will, of course, begin to run prior to death with respect to injuries that the afflicted individual should reasonably have "discovered" while alive, and, for this reason, it was held in Anthony that the survival statute begins to run, "at the latest," at death. 436 A.2d at 183–184. The explanation for this lies in the nature of the survival cause of action, for, as stated in Anthony , "the survival statutes do not create a new cause of action; they simply permit a personal representative to enforce a cause of action which has already accrued to the deceased before his death." 436 A.2d at 185 (emphasis added) (footnote omitted). See also Pezzulli v. D'Ambrosia , 344 Pa. 643, 647, 26 A.2d 659, 661 (1942).... [T]he "accrual" concept was expressly recognized in Anthony ; hence, the statute of limitations was regarded as running, at the latest , from the time of death, unless it had earlier "accrued" through the fact that the victim knew, or should reasonably have known, of his injury.
...
In the context of survival actions, which, as heretofore discussed, merely permit a personal representative to pursue a cause of action that had already accrued to a victim prior to death, the Pocono [ International Raceway v. Pocono Produce, Inc. , 503 Pa. 80, 468 A.2d 468 ( [Pa.]1983),] rule causes the statute of limitations to commence to run on the date when the victim ascertained, or in
the exercise of due diligence should have ascertained, the fact of a cause of action. In no case, however, can that date be later than the date of death; hence, the statute runs, at the latest, from death. Because death is a definitely ascertainable event, and survivors are put on notice that, if an action is to be brought, the cause of action must be determined through the extensive means available at the time of death, there is no basis to extend application of the discovery rule to permit the filing of survival actions, or wrongful death actions, at times beyond the specified statutory period.
Pastierik v. Duquesne Light Co. , 514 Pa. 517, 526 A.2d 323, 326–27 (1987).
Having set forth the general difference between statutes of repose and statutes of limitations, and the nature of survival actions, we turn to the statute involved in this case. Specifically, we must interpret Section 513 of MCARE, which we set forth in its entirety:
§ 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.
(c) Injuries of minors.— No cause of action asserting a medical professional liability claim may be commenced by or on behalf of a minor after seven years from the date of the alleged tort or breach of contract or after the minor attains the age of 20 years, whichever is later.
(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.
(e) Applicability.— No cause of action barred prior to the effective date of this section shall be revived by reason of the enactment of this section.
(f) Definition.— For purposes of this section, a "minor" is an individual who has not yet attained the age of 18 years.
MCARE defines a "medical professional liability claim" as "[a]ny claim seeking the recovery of damages or loss from a health care provider arising out of any tort or breach of contract causing injury or death resulting from the furnishing of health care services which were or should have been provided." 40 P.S. § 1303.103.
We begin by addressing the parties' dispute over when the medical professional liability claim accrued to Mrs. Dubose. Appellants contend the action accrued in 2005, and under the general rule, 42 Pa.C.S. § 5524, the statute of limitations began to run when Mrs. Dubose developed the pressure wound. Mr. Dubose asserts the cause of action accrued on October 18, 2007, when Mrs. Dubose died from sepsis and other injuries. If Appellants are correct that the cause of action accrued in 2005, and the two-year statute of limitations in 42 Pa.C.S. § 5524 applies, both of the survival claims asserted by Mr. Dubose in 2009 would be time-barred. If the cause of action accrued in July 2007, when Mrs. Dubose's pressure ulcer became infected and septic before her admission to Einstein on September 12, 2007, and the two-year statute of limitations in 42 Pa.C.S. § 5524 applies, Mr. Dubose's second case, filed on September 14, 2009, would be barred if the limitations period began to run at the time Mrs. Dubose's wound became infected. However, Mr. Dubose argues Section 513(d) of MCARE modifies the traditional statute of limitations, such that the statute of limitations for survival actions begins to run on the date of the decedent's death. Accordingly, we must address whether Section 513(d) of MCARE modifies the traditional time of accrual of survival actions, as explained in Pastierik , supra .
We hold that Section 513(d) declares that a survival action in a medical professional liability case resulting in death accrues at the time of death, not at the time of decedent's injury. This conclusion is based on the plain language of Section 513. First, Section 513(a) sets forth a seven-year statute of repose for medical professional liability claims. It provides that "no cause of action ... may be commenced after seven years from the date of the alleged tort or breach of contract." 40 P.S. § 1303.513(a). Section 513(a) focuses on the defendant's conduct by barring any action that is brought more than seven years after the defendant acted, which is typical of statutes of repose. See CTS Corp. , 134 S.Ct. at 2182–83. Further, Section 513(a) bars the plaintiff's ability to sue regardless of whether the cause of action accrued, whether the injury occurred, or whether it was discovered. See id. at 2182. Section 513(a), while providing exceptions for lawsuits involving injuries caused by foreign objects and injuries to minors, does not provide for any equitable considerations that would toll the seven-year period to sue. See id. at 2183. The statute of repose in Section 513(a) begins running on the date of the tort or breach of contract, no matter when the cause of action accrues (and may even bar a cause of action before it accrues). However, Section 513(a) does not provide how it relates to Section 513(d). Instead, Section 513(d) stands separately.
In contrast to the language of Section 513(a), Section 513(d) states that in a medical professional liability claim for wrongful death or survival, "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." 40 P.S. § 1303.513(d). This language mirrors traditional statute of limitation language, such as the two-year limitation contained in 42 Pa.C.S. § 5524 : "The following actions and proceedings must be commenced within two years: ... (2) an action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another." 42 Pa.C.S. § 5524(2). Section 513(d) focuses not on the defendant's conduct, but on the time within which the plaintiff must sue. Unlike Section 513(a), it also contains equitable considerations that may toll the two-year period to commence a suit following death: "affirmative misrepresentation or fraudulent concealment of the cause of death." 40 P.S. § 1303.513(d). The focus on when the plaintiff must commence the action and the enumeration of specific equitable considerations that may toll that time period leads us to conclude that Section 513(d) is a statute of limitations for medical professional liability death cases that sets the date of accrual at the date of decedent's death. See CTS Corp. , 134 S.Ct. at 2182–83.
Section 513(d) establishes a specific statute of limitations for survival and wrongful death actions in medical professional liability cases that prevails over the general statute of limitations for personal injuries actions contained in 42 Pa.C.S. § 5524(2). See 1 Pa.C.S. § 1933. It is within the legislature's power to enact a more specific statute of limitations for medical professional liability negligence that results in death, and where the plain language of the statute indicates that it did so, we must give effect to that language. Similarly, Appellants' reliance on Pastierik , Anthony , and Pezzulli to illustrate the general principles of when a survival action accrues and when the statute of limitations begins to run does not compel a different result. Pastierik , Anthony , and Pezzulli predate the legislature's enactment of MCARE and the more specific statute of limitations set forth in Section 513(d).
See also Commonwealth v. Corban Corp. , 598 Pa. 459, 957 A.2d 274, 277 (2008) (holding the more specific five-year statute of limitations for commencing a criminal prosecution for violations of Workers Compensation Act at 77 P.S. § 1039.12 controls over the general two-year statute of limitations in 42 Pa.C.S. § 5552 of the Judicial Code).
If the General Assembly wanted to set a statute of repose of two years from the date of decedent's death, it could have provided, similar to Section 513(a), "no cause of action for wrongful death or survival may be commenced after two years from the death." It did not; instead, it created a statute of limitations for medical professional liability cases resulting in death, which accrues at the time of decedent's death. Our interpretation is consistent with the Superior Court's conclusion in Matharu in 2014 that Section 513(d) sets forth a different statute of limitations for death cases, and the General Assembly has not amended Section 513 in response to Matharu . See Matharu , 86 A.3d at 263. Therefore, Mr. Dubose's survival actions were timely filed within two years of Mrs. Dubose's death.
Based on this conclusion, we do not need to address the effect of Mr. Dubose holding Mrs. Dubose's power of attorney prior to her death.
In conclusion, we hold that Section 513(d) of MCARE establishes a two-year statute of limitations for medical professional liability cases in the form of wrongful death or survival actions, which accrues at the time of the decedent's death. Thus, for all the above reasons, we affirm the judgment of the Superior Court.
Justices Todd and Dougherty join the opinion.
Justice Baer files a concurring and dissenting opinion.
Chief Justice Saylor files a dissenting opinion
Justices Donohue and Wecht did not participate in the consideration or decision of this case.
JUSTICE BAER, CONCURRING AND DISSENTING
I respectfully but vigorously dissent from the majority's radical departure from this Commonwealth's well-established jurisprudence providing that the statute of limitations for a medical professional negligence action commences when the cause of action accrued (i.e. , when the plaintiff was injured by the professional negligence). According to the majority, where such an action is pursued by the deceased plaintiff's personal representative, the statute of limitations is extended, potentially for several years, until two years after the plaintiff's death, thereby granting the personal representative far more rights than the plaintiff would have possessed while alive. Consistent with Chief Justice Saylor's dissenting opinion, I find no support for this proposition in Section 513(d) of the Medical Care Availability and Reduction of Error Act ("MCARE Act"), 40 P.S. § 1303.513(d). In my view, the majority's strained interpretation of Section 513(d) flies in the face of this Court's settled case law regarding the nature of a survival action and is contrary to both the purpose behind the MCARE Act and the express legislative designation of Section 513 as a statute of repose.
Notwithstanding my strong opposition to the majority's interpretation of Section 513(d), I agree with the majority that the present action was filed timely based on the trial court's alternative holding that the statute of limitations was tolled by the discovery rule until the decedent's death. Accordingly, I would affirm the Superior Court's decision, finding the action timely, on this alternative basis.
As the majority acknowledges, Section 513 of the MCARE Act, 40 P.S. § 1303.513, entitled "Statute of repose," provides, in relevant part:
(a) GENERAL RULE.—Except as provided in subsection (b) [relating to injuries caused by a foreign object left in the body] or (c) [relating to injuries of minors], 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.
* * *
(d) DEATH OR SURVIVAL ACTIONS.—If the claim is brought under 42 Pa.C.S. § 8301 (relating to [a wrongful] 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.
Consistent with the General Assembly's express designation of Section 513 as a statute of repose, the majority holds that subsection (a) is a statute of repose that precludes medical professional liability causes of action from being commenced more than seven years after the alleged tort, with exceptions not applicable here. See Majority Opinion at 646–47, 647 (providing that "Section 513(a) sets forth a seven-year statute of repose for medical professional liability claims;" "Section 513(a) bars the plaintiff's ability to sue regardless of whether the cause of action accrued, whether the injury occurred, or whether it was discovered."). In construing the meaning of subsection (d), however, the majority divorces that provision from its legislative designation as a statute of repose. Moreover, notwithstanding that the statutory text does not reference "accrual" or "statute of limitations," the majority interprets Section 513(d) as a statute of limitations that alters profoundly the traditional time of accrual of a surviving professional medical liability claim. I find this interpretation untenable.
Critical to determining the import of Section 513(d) is an understanding of the nature of a "survival action." The Survival Act provides that "all causes of action or proceedings, real or personal, shall survive the death of the plaintiff. ..." 42 Pa.C.S. § 8302. As acknowledged by the majority, this Court has consistently held that the survival statute does not create a new independent cause of action, but merely permits a personal representative to enforce a cause of action that has already accrued to the plaintiff before death. Pastierik v. Duquesne Light Co., 514 Pa. 517, 526 A.2d 323, 326 (1987) ; Anthony v. Koppers Co., 496 Pa. 119, 436 A.2d 181, 185 (1981) (plurality); Pezzulli v. D'Ambrosia, 344 Pa. 643, 26 A.2d 659, 661 (1942). Thus, a personal representative pursuing the tort action of a deceased plaintiff is bound by the two-year statute of limitations for personal injury actions, 42 Pa.C.S. § 5524(2), which, by legislative mandate, commences "from the time the cause of action accrued." 42 Pa.C.S. § 5502(a).
This Court has definitively declared when accrual occurs. We have held that because a surviving tort action brought by the personal representative of a deceased plaintiff is based upon the deceased plaintiff's injuries, the cause of action accrues (and the statute of limitations begins to run) when the plaintiff reasonably should have discovered his or her injuries; if the plaintiff could not have reasonably discovered the injuries while alive, the cause of action accrues, at the latest, at the time of plaintiff's death. Pastierik , 526 A.2d at 326 ; Anthony , 436 A.2d at 183. Naturally, the personal representative's claim mirrors the claim that the plaintiff would have pursued if alive, no more and no less.
In one fell swoop, the majority has eradicated this jurisprudence and holds that, pursuant to Section 513(d) of the MCARE Act (entitled "Statute of repose"), the statute of limitations for a medical professional liability claim brought by the deceased plaintiff's personal representative is no longer tied to when the plaintiff's cause of action accrued and no longer begins to run at the time the plaintiff reasonably should have discovered the alleged injury, but, instead begins to run at the time of plaintiff's death. The application of this holding to a fact pattern disparate from the one presented herein illustrates its absurdity. Assume that a physician negligently failed to diagnose a patient's cancer in 2010. Assume further that later in that same year, the patient became aware of the cancer and the physician's failure to diagnose the condition. It appears undisputed that under 42 Pa.C.S. § 5524(2), the patient's statute of limitations for this personal injury action would expire in 2012, two years after the injury was discovered and the professional medical liability cause of action accrued. Under the majority's labored construction, however, if patient dies of the same cancer in 2015, the patient's cause of action that expired in 2012 is miraculously resurrected and, remarkably, the patient's personal representative has until 2017, i.e. , two years from patient's death, to commence the action. Thus, the majority's interpretation of Section 513(d), contained within a statute of repose, through nothing short of sleight of hand, extends the statute of limitations from two to seven years, granting to the personal representative an independent cause of action that the deceased plaintiff could not have pursued personally in his own right had he remained alive.
We note that the personal representative's action commenced in 2017 was filed within Section 513(a)'s seven-year statute of repose, which the majority recognizes as the only valid statute of repose set forth in Section 513.
The majority relies on the statute's provision for tolling in the event of fraudulent concealment in support of its conclusion that Section 513(d) should be deemed a statute of limitations. However, there are other statutes of repose affording latitude in the face of wrongful conduct. See, e.g. , General Aviation Revitalization Act of 1994, 49 U.S.C.A. § 40101, Note, as discussed in Pridgen v. Parker Hannifin Corp. , 974 A.2d 1166, 1168 n.3 (Pa. Super. 2009). In the medical malpractice context, for example, North Dakota has a statute of repose that has similar tolling considerations for fraud and concealment. See N.D. Cent. Code Ann. § 28–01–18(3). Again, in the context of two limitations-based vehicles with overlapping purposes and mechanics, it is not surprising to me that there are instances in which they may be hybridized.
By any stretch of the imagination, this could not be what the General Assembly intended when it enacted Section 513(d) of the MCARE Act. There is no language in Section 513(d) suggesting that the General Assembly intended to alter fundamentally the existing substantive law by creating an independent cause of action of the plaintiff's personal representative, which is unmoored to the plaintiff's injuries and is, instead, tethered only to the time of the plaintiff's death. The majority, in essence, has taken a legislative restriction on the filing of a cause of action, as demonstrated by the General Assembly's designation of the provision as a statute of repose, and, as revealed by the posed hypothetical, transformed it into an expansion of the time for filing the cause action by potentially more than threefold. The majority accomplished this task by interpreting language in the MCARE Act, which was enacted in response to perceived spiraling costs of medical malpractice claims. Pa. Med. Soc'y v. Dep't of Pub. Welfare, 39 A.3d 267, 271 (Pa. 2012) ; see also 40 P.S. § 1303.102(1) & (3) (providing that the purpose of the MCARE Act is to ensure that high quality health care is available in this Commonwealth and that medical professional liability insurance is obtainable at an affordable and reasonable cost).2 I cannot join this undisciplined judicial expansion of the law.
Considering, as we must, the language of subsection (d) in the context in which it appears in Section 513 ("Statute of repose") and in connection with the statutory scheme of the MCARE Act as a whole, it becomes clear that Section 513(d)'s language that the surviving medical professional liability claim "must be commenced within two years after the death" merely codifies existing law. See Saylor, J., dissenting, at 652 (opining that "Section 513(d) does nothing more than codify aspects of the decisional law pertaining to the outside limits of accrual and tolling relative to survival actions"). Section 513(d) reiterates the long-established link between the plaintiff's cause of action and the personal representative's cause of action as it applies to the statute of repose, such that the personal representative's time constraints are commensurate with those of the plaintiff. Had the Legislature intended to lengthen significantly the time period in which surviving medical professional liability claims could be filed and thereby effectuate the dramatic transformation of the law that the majority purports, it would have done so expressly, and it would not have done so within a statute of repose.
Notwithstanding my fundamental disagreement with the majority's interpretation of Section 513(d), I agree that, in this case, the action was filed timely. As noted, I rely upon the trial court's alternative holding that the statute of limitations was tolled by the discovery rule until the decedent's death, given the ongoing and cumulative nature of the decedent's disabling injuries which ultimately resulted in her death. See Trial Court Opinion, June 27, 2014, at 11–12 (holding that, '[a]lternatively, [Appellee] would have two years under the discovery rule to bring a survival action for pain and suffering, especially where the decedent was comatose").
In summary, I would interpret Section 513(d) as a statute of repose, setting forth the maximum allotted time in which a personal representative of a deceased plaintiff may file a medical professional liability claim, i.e. , within two years from death. As the two-year statute of limitations began to run when the decedent reasonably should have discovered her injuries and the record supports the trial court's conclusion that the decedent's condition rendered her unable to discover her injuries while alive, the decedent's personal representative had two years from the date of her death to file the instant action. Having filed the action within such two-year period, I agree with the majority's mandate to affirm the lower court's determination that decedent's survival action was filed timely.
CHIEF JUSTICE SAYLOR, DISSENTING
I respectfully dissent. From my point of view, Section 513(d) of the MCARE Act does not reflect an intention, on the part of the General Assembly, to fundamentally alter the nature and accrual of the survival cause of action. Rather, I believe that the Legislature designed, far more modestly, to simply codify the existing judicial treatment concerning the outside limits for filing a survival action. My reasoning follows.
As the majority explains, prior to the enactment of Section 513(d), this Court had determined that the discovery rule does not apply to extend the accrual of a survival cause of action past the date of death. See Pastierik v. Duquesne Light Co. , 514 Pa. 517, 524–25, 526 A.2d 323, 327 (1987). As l read Pastierik , the Court also reasoned that a dynamic of the applicable statute of limitations served, essentially, as a statute of repose keyed to a "definitely established event"—namely, death—as opposed to consistently embodying the ordinary concept of accrual upon injury and inquiry notice. Id. at 522, 526 A.2d at 326 (quoting Anthony v. Koppers Co. , 496 Pa. 119, 124–25, 436 A.2d 181, 184–85 (1981) (plurality)).
Significantly, the issue of fraudulent concealment was not before the Court in Pastierik , and, therefore, despite some broad language, see, e.g. , id. at 524, 526 A.2d at 327 ("In no case ... can [the date of accrual] be later than the date of death[.]"), the issue of whether such concealment might operate to toll the limitations period remained an open one. See generally Morrison Informatics, Inc. v. Members 1st FCU , 635 Pa. 636, 647, 139 A.3d 1241, 1247 (2016) ("[T]he holdings of judicial decisions are to be read against their facts[.]" (citing Oliver v. City of Pittsburgh , 608 Pa. 386, 395, 11 A.3d 960, 966 (2011) )). The Superior Court, however, has treated fraudulent concealment as an available exception after Pastierik . See, e.g. , Kaskie v. Wright , 403 Pa. Super. 334, 337–38, 589 A.2d 213, 215 (1991) ; see also Krapf v. St. Luke's Hosp. , 4 A.3d 642, 650 (Pa. Super. 2010).
Thus, and read according to its plain terms, Section 513(d) does nothing more than codify aspects of the decisional law pertaining to the outside limits of accrual and tolling relative to survival actions. Along these lines, I find that Section 513(d) hybridizes aspects of statutes of limitations and repose in exactly the same manner as had the case law.1 To the degree that reasoning backwards from labels (as opposed to forward from the explicit statutory direction) is appropriate, it is quite significant, to me at least, that the Legislature explicitly attached the term of art "Statute of repose" to Section 513(d). 40 P.S. § 1303.513 (heading).
As observed by other courts, "the terms 'statute of repose' and 'statute of limitations' have long been two of the most confusing and interchangeably used terms in the law." Landis v. Physicians Ins. Co. of Wisconsin, 628 N.W.2d 893, 907 n.16 (Wis. 2001) (citing Francis E. McGovern, The Variety, Policy and Constitutionality of Product Liability Statutes of Repose , 30 AM. U.L. REV. 579, 582–87, 621 (1981)). Particularly in such a context, I believe the Court should attribute material significance to a specific legislative designation, especially one employing a clarifying term of art. Additionally, I find no evidence to support the majority's assertion that Section 513(d) "stands separately" from the rest of the statute of which it is a component. Majority Opinion, at 647.
Notably, as well, the majority's recharacterization of Section 513(d) results in substantial disharmony, including displacement of the applicable common law principles of accrual, as well as discord with the otherwise applicable statute of limitations. See Majority Opinion, at 646–48. In terms of accrual, under the common law a survival action is not a new cause of action at all but is a continuation of one which already accrued to the decedent prior to his death. See Pastierik , 514 Pa. at 523, 526 A.2d at 326 (quoting Anthony , 496 Pa. at 125, 436 A.2d at 185 ). Per the majority opinion, however, peculiar to the medical professional liability context, the action now only arises upon death and, therefore, can no longer be said to have previously belonged to the decedent. As to the displacement of the governing statute of limitations, I find the majority's approach to be inconsistent with the principles of statutory construction counseling that statutes pertaining to the same subject matter are to be construed together if possible. See 1 Pa.C.S. § 1932.
The majority also draws support from the Superior Court's previous determination in Matharu v. Muir , 86 A.3d 250 (Pa. Super. 2014) (en banc ), that Section 513(d) is a statute of limitations, and the fact that the Legislature has not acted to prescribe differently after Matharu . See Majority Opinion, at 647–48. The applicable principle of statutory construction, however, pertains to construction by a court of last resort in circumstances where the Legislature has enacted subsequent statutes concerning the same subject. See 1 Pa.C.S. § 1922(4). Accordingly, it would seem to have no application here.2
In summary, the pivotal question in this case is whether, in enacting a section of reform legislation pertaining to "repose," the Legislature resolved to fundamentally alter the concept of accrual, thus overriding the otherwise applicable statute of limitations and effectively extending various actions. In my view, Section 513(d) manifests no such intent.