November 25th, 2019
Pennsylvania Supreme Court Determines that MCAREs 7-year Statute of Repose is Unconstitutional
In Yanakos v. UPMC, the Pennsylvania Supreme Court held that Pennsylvania’s seven-year statute of repose in Section 1303.513(a) of the Medical Care Availability and Reduction of Error Act (MCARE Act) is unconstitutional.
Susan Yanakos suffers from a genetic condition called Alpha-1 Antitrypsin Deficiency (AATD). Patients with AATD do not produce enough Alpha-1 Antitrypsin, a protein synthesized in the liver that plays an important role in protecting the lungs from damage. In the summer of 2003, one of Susan’s physicians, Dr. Amadeo Marcos, advised her that she needed a liver transplant due to the progression of her AATD. Because Susan was not a candidate for a cadaver liver, her son Christopher volunteered to donate a lobe of his liver to his mother.
Christopher underwent an extensive medical evaluation to determine whether he was a suitable liver donor. As part of that process, and at Dr. Marcos’s request, Dr. Thomas Shaw-Stiffel evaluated Christopher. Christopher advised Dr. Shaw-Stiffel that several of his family members suffered from AATD, but that he was unsure whether he did as well. Dr. Shaw-Stiffel ordered additional laboratory tests for Christopher, but never informed him of the results, which allegedly showed that Christopher had AATD and was not a candidate for liver donation. One month after Christopher’s consultation with Dr. Shaw-Stiffel, in September 2003, Dr. Marcos went forward with the operation, removing a portion of Christopher’s liver and transplanting it into Susan.
More than twelve years later, in December 2015, Christopher, Susan, and Susan’s husband, William Yanakos (collectively “the Yanakoses”) sued UPMC, University of Pittsburgh Physicians, Dr. Marcos, and Dr. Shaw-Stiffel (collectively “Appellees”), raising claims for battery/lack of informed consent, medical malpractice, and loss of consortium. The Yanakoses alleged that they did not discover Appellees’ negligence until eleven years after the transplant surgery, when additional testing revealed that Susan still had AATD, which the transplant should have eliminated.
Appellees filed a motion for judgment on the pleadings arguing that the seven-year statute of repose in the MCARE Act barred the Yanakoses’ claims. See 40 P.S. § 1303.513(a) (providing that “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”). The trial court concluded that it was bound by the plain language of the MCARE Act’s seven-year statute of repose, finding that the Yanakoses’ claims did not fall within the exceptions of the Act, namely, the exception for injuries caused by foreign objects left in a patient’s body); and, the exception for malpractice claims commenced by or on behalf of a minor).
The Yanakoses appealed to the Superior Court, arguing that the MCARE Act’s repose period violates Article I, Section 11 of the Pennsylvania Constitution. The Superior Court rejected the Yanakoses’ argument, explaining that the PA Supreme Court, in Freezer Storage, Inc. v. Armstrong Cork Co., 382 A.2d 715 (Pa. 1978), held that a twelve-year statute of repose on claims against architects and builders did not violate the Open Courts provision of the Pennsylvania Constitution. The Yanakoses appealed to the PA Supreme Court arguing that the Superior Court misapplied Freezer Storage, and, in doing so, implicitly nullified the constitutional right to a remedy.
The Pennsylvania Constitution provides our citizens with a right to a remedy in Article I, Section 11, which states:
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. PA. CONST. art. I, § 11.
The PA Supreme Court previously recognized that Article 1, Section 11 “provided that where a legal injury is sustained, there shall and will always be access to the courts of this Commonwealth.” Masloff v. Port Auth. of Allegheny County, 613 A.2d 1186, 1190 (Pa. 1992).
In analyzing the issue in this case, the PA Supreme Court determined that because the MCARE Act curtailed the important constitutional right to a remedy, the Court was required to apply intermediate scrutiny to determine whether the MCARE statute of repose is substantially related to achieving an important government interest. See Craig v. Boren, 429 U.S. 190, 197 (1976). In doing so, the Court concluded that while the governmental interest in controlling the rising costs of medical malpractice insurance premiums and of medical care is important, MCARE’s statute of repose is not substantially related to achieving those goals.
The Court explained that statutes of repose are generally intended to provide actuarial certainty to insurers in calculating insurance premium rates. In fact, following the Court’s review of the legislative history of the MCARE Act, it determined that this was the purpose of including a statute of repose. In enacting the MCARE Act, the Pennsylvania Senate removed the four-year statute of repose and instead provided that all causes of action must be “commenced within the existing applicable statute of limitations.” Thereafter, the Senate Committee on Rules and Executive Nominations reinserted a seven-year statute of repose, which the General Assembly enacted, thereby effectively limiting the statute of limitations, “discovery rule” to seven years.
In this case, the Court determined 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. Moreover, the Court found 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. Thus, there was no indication that such a time period, as opposed to a longer or shorter period, will have any effect on malpractice insurance costs. Accordingly, the PA Supreme Court concluded that the MCARE Act’s statute of repose is unconstitutional.