Last Updated: Feb 5, 2020
Update: On Nov. 13, 2019, UPMC filed an application asking the Pennsylvania Supreme Court to reconsider its decision to strike down the Mcare law’s statute of repose. On Nov. 14, the Pennsylvania Medical Society, the American Medical Association, and several other organizations filed briefs in support of UPMC’s petition.
On Jan. 31, 2020, the Pa. Supreme Court denied both UPMC’s request for reconsideration and the stakeholders’ request for participation. Justice Wecht filed a dissenting statement. Chief Justice Saylor also noted his dissent.
Get details on the case and the court's decision below.
In a 4-3 decision, the Pennsylvania Supreme Court ruled that that the Medical Care Availability and Reduction of Error Act’s (Mcare) statute of repose, which limits the filing of most medical professional liability claims to seven years, is unconstitutional.
Trial and Superior Courts Bar Plaintiffs’ Claims Under Statute of Repose
Yanakos v. UPMC involves a son, Christopher Yanakos, who donated part of his liver to his mother, Susan Yanakos who suffered from Alpha-1 Antitrypsin Deficiency (AATD)—a genetic disease affecting her liver.
In August 2003, Christopher informed his physician that several members of his family suffered from AATD, but he did not know whether he had the same condition. The physician ordered additional tests to see whether Christopher also had AATD, but did not inform Christopher of the results. This testing, Christopher alleges, showed he also had AATD, which should have disqualified him as a suitable donor. In September 2003, however, the liver transplant was completed.
The Yanakoses alleged that in 2014, eleven years after the surgery, they discovered the physician’s negligence when additional testing revealed that Susan still had AATD, which the transplant should have removed.
In December 2015, more than twelve years after the transplant was completed, the Yanakoses filed a medical liability suit against UPMC and several affiliated physicians (the Defendants). The Defendants raised the affirmative defense that the Yankoses’ claim was barred by the seven-year Statue of Repose. The trial court agreed with the Defendants and granted summary judgment. The Yanakoses subsequently appealed to the Superior Court of Pennsylvania.
Before the Superior Court, in relevant part, the Yanakoses argued that Mcare’s statute of repose violates the Pa. Constitution’s “open courts” guarantee as it arbitrarily and capriciously permits actions by similarly situated patients after seven years (i.e., patients with injuries caused by foreign objects and injuries of minors), but deprives some patients of access to courts. However, similar to a foreign object suit, the Yanakoses claimed they could not have learned of their injury within seven years and that they should be afforded the same opportunity to file suit outside of Mcare’s seven-year window.
The Superior Court rejected the Yanakoses’ argument holding that the statute of repose did not violate the Remedies Clause. Thereafter, the Yanakoses filed a petition for allowance of appeal, which was granted by the Pa. Supreme Court.
Pa. Supreme Court Reverses Superior Court Decision
On Oct. 31, 2019, the Pa. Supreme Court issued its decision striking down the Mcare statute of repose as unconstitutional. The majority opinion was authored by Justice Mundy with Justice Todd and Justice Dougherty joining. Justice Donohue authored an opinion concurring in the majority’s decision but dissenting in the level of judicial scrutiny applied. Justice Wecht authored the dissenting opinion, with Chief Justice Saylor and Justice Baer joining.
The issue before the state Supreme Court was whether the Mcare Act’s seven-year statute of repose violated the Remedies Clause under the Pennsylvania Constitution.
The Mcare Act’s statute of repose, found in Section 513 of the MCARE Act, places an outer limit on the timeframe within which a plaintiff can bring a lawsuit. Accordingly, the law stipulates that no action asserting a medical professional liability claim may be commenced seven years after the date of alleged malfeasance. There are, however, two exceptions: injuries to minors and injuries caused by a foreign object unintentionally left in an individual’s body; these cases may be brought outside of the seven-year limitation.
The Remedies Clause (also known as the “open courts” guarantee) provides that all courts shall be open and individuals “shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”
At the outset of the majority’s opinion, the majority deemed the Remedies Clause an “important right” based on its explicit inclusion in the state’s constitution along with the provision’s historical significance.
Having identified the Remedies Clause as an important right that is curtailed by the Mcare Act’s statute of repose, the majority reasoned that the statute must withstand “intermediate scrutiny” to be deemed constitutional. Intermediate scrutiny is a heightened level of judicial review applied to laws that are thought to impinge on important constitutional rights. Under intermediate scrutiny, the law at issue must be substantially related to an important government interest. Ultimately, the majority concluded that the Statute did not meet this level of scrutiny.
The majority recognized the important government interest in controlling the rising costs of medical malpractice insurance premiums; however, the majority concluded that the statute of repose was not substantially related to achieving this interest.
In support of this conclusion, the majority noted that there was no evidence explaining how the Pa. General Assembly arrived at a seven-year repose period with the exception for foreign objects cases and minors. The majority pointed out that the legislature did not cite statistics on the number of medical malpractice actions that are commenced after seven years of the cause of action, and that there no indication that this timeframe would have any effect on insurance cost.
Furthermore, the majority opined that the foreign objects and minors exceptions under the statute are not substantially related to the government’s interest in controlling medical professional liability costs because insurers still have to account for unpredictable long-tail cases in calculating premiums.
Consequently, the majority reasoned that the statute offers insurers no definite period after which there will be no liability claims, thus precluding actuarial predictability. Accordingly, due to the perceived inability of the insurers to achieve actuarial predictability, the majority concluded that the statute of repose is not substantially related to controlling the cost of malpractice insurance rates.
Justices Wecht, Baer and Saylor Dissent
In the dissenting opinion, authored by Justice Wecht, the dissent disagreed with the application of the intermediate scrutiny standard and argued that even if the application of intermediate scrutiny standard was appropriate, the statute of repose should still be deemed constitutional. The dissent opined that one need not be an expert in the economics of the insurance industry to understand that the cost of insurance coverage corresponds generally with the insurer’s own costs, which would decrease when fewer aged claims are filed. The dissent asserted that because the statute advances the underlying objective of reducing the cost of malpractice insurance, it would withstand intermediate scrutiny.
The dissent also cautioned that it is not the court’s role to upend duly enacted legislation simply because such legislation may be deemed as imperfect or unwise. The dissent recognized the legislature’s important interest in ensuring physician access to affordable professional liability insurance so that citizens have access to affordable medical care.
Furthermore, the dissent observed that the foreign object exception does not render the statute of repose arbitrary or irrational. To this end, the justices highlighted the rarity of such cases, the possibility that a foreign object could go unnoticed for years, and that the discovery of a foreign object itself is compelling evidence of some earlier negligent act.
What Does This Decision Mean for Physicians?
Because of the decision in Yanakos v. UPMC, professional liability insurers no longer have a seven-year date of actuarial predictability and insurance premiums could consequentially rise.
Also, liability claims that might have previously been barred by the statute of repose could now be filed. Keep in mind though that the statute of limitations for medical professional liability claims is still two years from the date of reasonable discovery. The statute of limitations requires that patients file their medical professional liability claims within two-years of the medical procedure or other event that potentially caused their injury or within two years of reasonably discovering their injury if they could not have discovered their injury at the time of the procedure. Previously, the statute of repose barred any plaintiff claims, except those involving foreign body injuries and injuries of minors, from being filed more than seven years after the medical procedure in question.
For example, if a plaintiff discovered an injury five years after a medical procedure that potentially caused their injury, the plaintiff would have two years from that date of discovery to file their claim under the statute of limitations. However, if the plaintiff discovered their injury ten years after the medical procedure, the plaintiff could not file a suit because the seven-year period of the statute of repose had expired.
However, now as a result of the Yanakos v. UPMC decision, if a plaintiff discovered their injury ten or even twenty years from the date of the procedure in question, the plaintiff would not be barred from a filing a lawsuit and they would have two years from the date of discovery to bring their claim.
This decision could also impact medical record retention requirements. Regulations promulgated by the State Boards of Medicine and Osteopathic Medicine currently require medical records to be maintained for seven-years past the last date of service for adult patients and potentially longer periods for minor patients. Professional liability carriers and healthcare providers may establish their own policies in excess of these requirements.
The Pennsylvania Medical Society (PAMED) will inform members of any proposed updates to existing state regulations. However, it is advisable that physicians contact their legal counsel and professional liability carriers for any impact on existing polices and practices.
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