PA-ACP joins in court case over statute of limitations in med mal cases
On behalf of its members, the PA-ACP has joined in filing amicus curiae brief to the state Supreme Court in an appeal of an earlier ruling that could change the statute of limitations on wrongful death actions. Other filers include the American Medical Association, the PA Chapter of the American Academy of Pediatrics, the Pennsylvania Medical Society and the Pennsylvania Orthopedic Society.
The Court is set to hear arguments on whether a previously undisclosed communication between doctors about a patient’s fatal aneurysm can toll the two-year statute of limitations, extending it from the current seven years.
The Chapter has significant concerns that in the past four years, the statewide Courts have continually re-interpreted laws and language that the courts, the Administration and the General Assembly had all agreed to, by the creation of the MCARE Act and other legislation to resolve a crisis in medical malpractice lawsuits and med mal insurance costs in 2003. These court rulings continue to chip away at provisions that assure reasonable costs for medical professional liability insurance.
Between 2000 and 2003 the average cost of medical professional liability insurance for internal medicine physicians in Pennsylvania rose from an average of $7,390 to $24,546 - more than a 330% increase. Costs in Philadelphia, where more than half of all state med mal lawsuits were filed, rose even more and were higher.
Since 2018, the Court has – from the bench – changed legislation regarding venue, statute of repose, and now statute of limitations, as well as definitions – in this case what “cause of death” means.
The Supreme Court agreed on May 4 to hear an appeal in the case of Reibenstein v. Conaboy. Plaintiff Linda Reibenstein had sued Dr. Patrick Conaboy and Dr. Charles Barax over the death of Mary Ann Whitman.
The state Superior Court ruled that ‘cause of death’ as it appears in MCARE’s statute of limitation refers to ‘conduct leading to death,’ not the medical cause of death.
The amicus filing supports the argument that the MCARE statute is clear on the cause of death, and the Superior Court decision was directly at odds with MCARE’s plain meaning and stated purposes. It also argues that the statute of limitations on a wrongful death claim may only be tolled where a plaintiff proves that the defendant against whom the claims are asserted (and not a third party) misrepresented or fraudulently concealed decedent’s cause of death?”
The Superior Court's Opinion held that "cause of death" means "conduct the plaintiff alleges led to the decedent's death." It took an unambiguous medical term of art and redefined it with invented legalese. It took a law that was carefully negotiated and passed on an overwhelmingly bipartisan basis, repealed it, and unilaterally put a new law in its place, doing this in a total vacuum of support in either legislative history or legal precedent.
The phrase "cause of death," a medical term of art, is universally understood to reference an individual's medical cause of death, i.e., the specific injury or disease that leads to death. The Superior Court's unsupported conclusion was that the phrase "cause of death" is somehow ambiguous.
In this case, Whitman underwent a CT scan at the request of Dr. Conaboy, and Dr. Barax reviewed the scan, which revealed an abdominal aortic aneurysm that he said was “poorly visualized.” The report allegedly did not document an aneurysm rupture, which is what killed Whitman five days later.
The lawsuit was filed a year after her death in 2011, and during depositions in 2015, Dr. Conaboy said the CT scan showed a previously undocumented abdominal aortic aneurysm, but because he could not see the aneurysm very well, he couldn’t confirm that it was not bleeding or rupturing.
The cases were combined, but the trial court dismissed the action against Conaboy and his practice, reasoning that the statute of limitations barred the case. On appeal, Reibenstein argued that Barax’s failure to disclose the conversation between him and Conaboy constituted an “affirmative misrepresentation or fraudulent concealment of the cause of death” about Whitman’s cause of death under the Medical Care Availability and Reduction of Error Act (MCARE).
The court ruling said, “Where a medical practitioner hides an action that was directly related to the cause of the patient’s death, the commonwealth’s interest in redress outweighs the interest in control of medical malpractice insurance costs…we hold that ‘affirmative misrepresentation or fraudulent concealment of the cause of death means affirmative misrepresentations about or fraudulent concealment of conduct the plaintiff alleges led to the decedent’s death.”
If left to stand, the Court’s ruling could open up the courts for hundreds of additional suits, revise the statute of limitations, and raise med mal insurance policy costs for all physicians.