Concealing/Misrepresenting Actions Allegedly Causing Death of Patient Expands Time Medical Providers Can Be Sued Under the MCARE Act

In the matter of Reibenstein v. Barax, 236 A.3d 1162 (Pa. Super. 2020), the Pennsylvania Superior Court was asked to decide when the statute of limitations is tolled due to affirmative misrepresentation or fraudulent concealment of the cause of death in a medical malpractice case involving wrongful death and survival claims. At issue was the language of § 1303.513(d) of the MCARE Act, which provides:

(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.

Reibenstein, 236 A.3d at 1165.

In Reibenstein, the decedent died on April 28, 2010, and, as noted on her death certificate, the cause of death was a ruptured abdominal aortic aneurysm (AAA). One year later, the plaintiff, the administratrix of decedent’s estate, filed a lawsuit, including wrongful death and survival actions against Dr. Charles Barax and his employer (the original defendants) regarding the alleged negligent review of an abdominal CT scan performed five days before the decedent’s death.

Dr. Barax was deposed in February 2015 and testified that he had reported the results of the abdominal CT scan to Dr. Patrick D. Conaboy, M.D. (the Conaboy defendants) and had informed Dr. Conaboy that the scan showed a “previously undocumented abdominal aortic aneurysm, but because [Dr. Barax] could not visualize the aneurysm very well, he could not confirm that it was not bleeding or rupturing.” This testimony differed from the language used by Dr. Barax in his written report.

Thereafter, in March 2016, the plaintiff filed a separate lawsuit against the Conaboy defendants, which was then consolidated with the initial lawsuit. The Conaboy defendants moved for summary judgment, arguing that the plaintiff had violated the statute of limitations and that the discovery rule had not tolled the statute of limitations. The trial court originally denied the motion, but upon reconsideration, the court granted summary judgment, reasoning that there was “no evidence of affirmative misrepresentation or fraudulent concealment of the cause of death” that would have tolled the statute of limitations. The plaintiff appealed. The issue before the Superior Court was whether the trial court had erred when it held that the statute of limitations was not be tolled because the decedent’s cause of death had been correctly identified on her death certificate.

The court examined the plain language of § 1303.513(d) in light of “the intention of the General Assembly.” The Conaboy defendants argued that the plain language of § 1303.513(d) meant that the statute of limitations began to run on the date of death unless there was an affirmative misrepresentation or fraudulent concealment of the cause of death. They contended that there had been no such misrepresentation or concealment because the death certificate had listed the cause of death as ruptured abdominal aortic aneurysm. Nevertheless, the plaintiff’s position was that the trial court’s interpretation of §1303.513(d) was “overly restrictive” and did not comply with the intent of the Act. The plaintiff argued that the statute of limitations should have been tolled because the Act:

does not define ’cause of death’ or explain how a defendant must conceal the cause of death for equitable tolling to apply…[and] based on the legislative intent behind the statute, that the phrase ’affirmative misrepresentation or fraudulent concealment of the cause of death’ should not be limited to a defendant’s failing to record the correct cause of death on a death certificate…[but] should also encompass those acts that were part of the chain of causation leading to the patient’s death…

The court agreed with the plaintiff, nothing that there was no controlling authority that directly addressed the key question of whether “cause of death” meant what was explicitly documented on the death certificate, or if the phrase included “conduct leading to the decedent’s death but that is not the immediate, medical cause of the death.” By looking at the intent of the General Assembly, the purpose of § 1303.513(d) and the intent of the Act as a whole (the availability of high-quality health care and fair compensation to injured persons, while simultaneously controlling the costs of liability insurance), the court determined that the inclusion of a tolling provision indicated a recognition by the General Assembly that there may some instances where the patient’s interest in fair compensation supersedes all other interest. Thus, the Court held 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.

Consequently, it was error for the trial court to conclude that the plaintiff’s claims were barred by the statute of limitations. The court remanded the issue back to the trial court to determine if there “was a fraudulent concealment or affirmative misrepresentation of an act by Dr. Conaboy related to [decedent’s] death.”

*Jason is a shareholder in our Philadelphia, Pennsylvania office. He can be reached at (215) 575-2698 or jwbialker@mdwcg.com.

_{Defense Digest, Vol. 27, No. 1, January 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}