Amicus Filing press release – Pennsylvania American College of Physicians

PA-ACP Joins Fight to Have PA Supreme Court Reconsider Its Decision on  Med Mal Suit Discovery Time Limit

Harrisburg, PA: The Pennsylvania Chapter of the American College of Physicians (PA-ACP) has joined the fight to have the Supreme Court of Pennsylvania reconsider a recent holding that the Pennsylvania’s seven-year limitation on discovery in state medical malpractice claims is unconstitutional.
The Pennsylvania Orthopaedic Society, the Pennsylvania Chapter of the American Academy of Pediatrics and the Pennsylvania Defense Institute have also joined in the amicus effort.
Although medical malpractice suits in Pennsylvania generally must be filed within two years, there are limited exceptions where a patient has no ability to learn about the alleged malpractice until many years later. Even in those situations, however, Pennsylvania’s Medical Care Availability and Reduction of Error Act (“MCARE Act”) establishes a seven-year limitation on discovery for claims, referred to as a statute of repose, with exceptions only for foreign objects and minors’ cases.
At the trial court level, the judge dismissed the case pursuant to the MCARE Act’s seven- year statute of repose limitation. The Superior Court of Pennsylvania affirmed.
The case involves a liver transplant that failed more than a decade after the procedure, allegedly due to the doctor’s failure to order appropriate testing on the organ donor beforehand. Twelve years passed between the surgery and filing of the lawsuit.
On October 31st, the Supreme Court of Pennsylvania reversed, striking down the statute of repose as unconstitutional. A key point in the court’s holding was that the seven-year limitation was supposedly “arbitrary” and without reason. In other words, there was nothing in the law’s legislative history to explain why the limitation was set at seven years, as opposed to five, three, or even ten.
Upon learning of the ruling, PA-ACP immediately took action on behalf of their members to seek the court’s reconsideration, joining other organizations in securing legal teams to prepare an Amicus Brief, which was filed in the case on November 14.
What the court missed is obvious to doctors, but perhaps not to the courts: the seven-year statute of repose was tied directly to Pennsylvania’s longstanding requirements that medical records be retained for seven years. The law was not arbitrary. As the Amicus Brief states, “In setting the statute of repose at seven-years, the General Assembly struck a reasoned and precisely structured balance between the ability of health care providers to have access to critical evidence when defending lawsuits, on one hand, with the ability of medical malpractice claimants to seek redress, on the other.”
Thomas C. Grau, MD, FACP, President of the PA-ACP said that the Chapter has a priority commitment to advocating for its members in Pennsylvania and in Washington, and actions like the Court decision could have devastating impacts on internists’ practices.  “The MCARE Act was the result of more than a year of negotiations among physicians, insurers, the trial bar, legislators, the governor, the Attorney General and the Chief Justice of the Supreme Court.  At the time, three of the state’s five med mal insurers had left the state, and premiums had increased by double digits annually.  The Act stabilized skyrocketing malpractice premiums and reversed the trend of doctors and resident physicians leaving Pennsylvania.  We cannot afford to return to those days and PA-ACP is standing up to protect the interests of its members and their patients.”
PA-ACP is represented in the appeal by attorney Michael K. Feeney, Esq., of Matis Baum O’Connor in Pittsburgh, PA. Attorney Feeney dedicates his practice exclusively to the defense of health care providers and is an experienced amicus practitioner.
Separate Amicus Curiae briefs were also filed by the American Medical Association (joined by the Pennsylvania Medical Society), and the Pennsylvania Coalition for Civil Justice Reform (joined by the Insurance Federation of Pennsylvania, the Hospital and Health System Alliance of Pennsylvania, the National Federation of Independent Businesses, American Property and Casualty Insurance Corporation, Curi, and the Doctors’ Company.
The Pennsylvania Chapter of the American College of Physicians, is the Commonwealth of Pennsylvania’s largest medical specialty organization, affiliated with the American College of Physicians. Founded in 1915, the ACP has 159,000 members worldwide. The PA-ACP membership includes 7,800 Pennsylvania internal medicine students and physicians practicing general internal medicine and related subspecialties.
PA-ACP’s mission is to “enhance the quality and effectiveness of health care by fostering excellence and professionalism in the practice of medicine.” Its vision is to “be the recognized leader in quality patient care, advocacy, education and enhancing career satisfaction for internal medicine and its subspecialties.”
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For More information:  Statute of Repose