The Pennsylvania Supreme Court Limits the Statute of Limitations for Medical Malpractice Wrongful Death Actions to Two Years from the “Medical” Cause of Death
In Reibenstein v. Barax, No. 32 MAP 2021 (Pa. December 12, 2022), the Pennsylvania Supreme Court narrowly construes statute of limitations for medical malpractice wrongful death and survival actions to accuracy of the “medical” cause of death recorded on the death certificate.
Whitman (Plaintiff’s decedent) consulted Dr. Patrick Conaboy on April 12, 2010, complaining of a persistent cough, fever, and lower back pain. Dr. Conaboy ordered an aortic duplex ultrasound scan and a CT scan of Whitman’s abdominal area, both of which were interpreted by radiologist, Dr. Charles Barax on April 23, 2010. Dr. Barax’s report revealed he discussed a poorly visualized aortic aneurysm with Dr. Conaboy. Dr. Conaboy scheduled Whitman to meet with a vascular surgeon on May 10, 2010, but Whitman died when the aneurysm ruptured on April 28, 2010.
On April 15, 2011, Reibenstein, administratrix of Whitman’s estate, brought a wrongful death and survival action against Dr. Barax, claiming that Dr. Barax had misread Whitman’s CT scan, and failed to recognize the urgency of her condition. Importantly, Reibenstein contended she was unable to acquire the requisite certificate to support a claim against Dr. Conaboy.
Reibenstein “officially notice[d]” Dr. Barax’s deposition on May 22, 2013, but Dr. Barax’s rebuffed Plaintiff’s efforts on multiple occasions. Later, Reibenstein sought court intervention, and Dr. Barax was ordered to participate in his deposition in February 2015, which was nearly five years after Whitman’s death. Dr. Barax testified he informed Dr. Conaboy of his concerns of a potential rupture, information not contained in Dr. Barax’s report.
Based on this newly acquired information, Reibenstein filed a new wrongful death and survival action against Dr. Conaboy March 1, 2016. Dr. Conaboy sought summary judgment on the basis that MCARE’s statute of limitations for wrongful death and survival actions (Section 513(d), which 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.
In declining to extend the statute of limitations, the trial court concluded there was no evidence of affirmative misrepresentation or fraudulent concealment of the cause of death. On appeal, the Superior Court determined Section 513(d) reference to “cause of death” was ambiguous because it did not differentiate between “medical” cause and “legal” cause. Thus, the Superior Court concluded the affirmative misrepresentation or fraudulent concealment of the cause of death tolling provision applied not only to obscurantist conduct in connection with the medical cause of death, but also to affirmative misrepresentations about or fraudulent concealment of the legal cause of death, i.e., conduct the plaintiff alleges led to the decedent’s death.
On appeal, the Supreme Court took a “contexualized” analysis of Section 513(d). Based on the “available textual evidence, especially viewed in light of broader statutory context and the common usage reflected in reliable reference resources,” the Court distinguished the term “cause of death” from “manner of death,” thereby concluding the statute of limitations for cases falling under Section 513(d) would be limited to two years after the death in the absence of affirmative misrepresentation or fraudulent concealment of the medical, and not legal, cause of death.
In making its ruling, the Court emphasized the availability of “pre-complaint” discovery. Specifically, the court referred to Rule 4003.8, which was adopted in the wake of its decision in McNeil v. Jordan, 894 A.2d 1260 (Pa. 2006), “[a] plaintiff may obtain pre-complaint discovery where the information sought is material and necessary to the filing of the complaint and the discovery will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party.” See also Rules 4001(c), 4005(a), and 4007(c) (collectively providing for pre-complaint interrogatories and depositions).