The doctrine of fraudulent concealment does not apply to nullify the impact of the MCARE Act’s statute of repose, the state Superior Court has ruled.

In so holding, a unanimous three-judge panel also reasoned that a Pennsylvania man seeking to sue over allegedly negligent laser eye surgery did not have a viable cause of action until after the the Medical Care Availability and Reduction of Error Act became effective in 2002. Moreover, the court observed, the plaintiff, Francis X. Osborne, did not discover the surgery’s alleged negative effects until after that date.

The court reasoned the cause of action in Osborne v. Lewis accrued after the MCARE Act’s effective date, triggering the application of its seven-year statute of repose. Because Osborne’s damages allegedly stemmed from a June 2000 operation and the suit was begun more than seven years later, the court said, the action is barred.

In so holding, the panel reversed the Montgomery County Court of Common Pleas, which had rejected a motion for summary judgment from the defendants, James S. Lewis, Barry Fabriziani and Advanced Laser Vision. Lewis and Advanced Laser Vision were the appellants before the Superior Court, the opinion said.

The panel, led by Judge Judith Ference Olson, reasoned that by including fraudulent concealment in exceptions to the statute of repose in the MCARE Act — but not the general rule, itself — the General Assembly intended to prevent fraudulent concealment being used as a means of circumventing the seven-year window.

“Analysis of Section 1303.513 reveals that the MCARE Act’s statute of repose expressly provides for the doctrine of fraudulent concealment to apply in wrongful death or survival actions,” Olson said. “By contrast, the general statute of repose set forth in Subsection (a), and at issue in this matter, does not expressly provide an exception for fraudulent concealment.”

“Applying the principles set forth above, by expressly providing a fraudulent concealment exception in Subsection (d) of the statute of repose, while providing no similar exception in Subsection (a) of the statute of repose, the General Assembly expressed its intention that a fraudulent concealment exception should not apply to claims addressed by Subsection (a).”

Subsection (a) is the general rule in Section 1303.513 of the MCARE Act, stating that, with the few exceptions, no medical malpractice claim may be commenced seven years after the alleged tort.

An attorney representing Osborne reported that his client is filing a petition for allowance of appeal with the state Supreme Court.

According to Olson, the defendants argued to distinguish the language in the statute of repose (specifically, “from the date of the alleged tort”) from how the law should be applied to the case they are defending.

Why?

Lewis and Advanced Laser argued that while the MCARE Act’s statute of repose runs from the date of the alleged tort, the act may be applied to causes of action that “arise on or after” its effective date — March 20, 2002. And the cause of action, they said, was when the LASIK surgery’s alleged failure began manifesting symptoms that implicated the defendants’ possible culpability.

Represented by Alan S. Gold of Gold and Ferrante in Jenkintown, Pa., the defendants cited the Matharu v. Muir case from 2011, followed closely by the medical malpractice bar for its discussion of “preconception torts.” The Matharu court held MCARE’s statute of repose does not start running until the child’s injury or death actually occurs, even if the alleged cause dates back years.

In that case, it was the MCARE Act’s wrongful death/survival action two-year statute that applied, and the plaintiffs cleared the window. But the en banc panel’s general proposition helped the defense in Osborne.

“Pursuant to our reasoning in Matharu, we agree with [Lewis and Advanced Laser] that claims resulting from a tort that occurred prior to the effective date of the MCARE Act may be subject to the act’s statute of repose, if, like in Matharu, the cause of action resulting from that tort did not arise until after the effective date of the MCARE Act,” Olson said.

With the statute in effect, the court turned to when the cause of action arose.

In Osborne’s view, the cause of action arose when the alleged tort occurred, removing him from the MCARE Act’s purview.

The defense, obviously, reasoned the cause of action arose in late 2003 or 2004 when Osborne, by his own admission, started to notice his eyesight was deteriorating.

The unanimous panel, rounded out by President Judge Correale F. Stevens and Judge Cheryl Lynn Allen, agreed with the defense.

The case law, according to the panel, supported the idea that an actionable case doesn’t exist until a disease reveals itself.

As the Supreme Court put it more than 50 years ago in Foley v. Pittsburgh-Des Moine, “a right of action accrues only when injury is sustained by plaintiff … not when the causes are set in motion which ultimately produce the injury as a consequence.”

That, and Osborne never disputed the timeframe he proffered that the surgery’s alleged negative result was not apparent until three years after the operation, the court said.

“On that issue, it is significant to note that none of the medical testimony relied upon by Mr. Osborne in opposition to summary judgment opines when Mr. Osborne first suffered and/or noticed the effects of his declining sight,” Olson said. “Rather, the only evidence presented on the issue is the testimony of Mr. Osborne and his mother, explaining that he first noticed his declining vision in late 2003 or 2004.”

She added: “Mr. Osborne offers no evidence to dispute that timeframe. Consequently, there is no disputed issue of material fact that Mr. Osborne was unable to maintain his action to successful conclusion until late 2003 or 2004.”

Therefore, Osborne’s cause of action arose, at the earliest, in late 2003 and was barred by the MCARE Act’s statute of repose, Olson said.

Osborne’s attorney, George F. Dale of Kent/McBride in Philadelphia, declined comment, deferring to his petition for allowance of appeal with the state Supreme Court.

Gold, the defendant’s attorney, was not available for comment.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI. •

(Copies of the 18-page opinion in Osborne v. Lewis, PICS No. 13-0037, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •