medical malpractice
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Fine-tuning its 2013 decision in Osborne v. Lewis, the Pennsylvania Superior Court has ruled that a medical malpractice action is only barred by the Medical Care Availability and Reduction of Error Act statute of repose provision when an injury is first manifested after the provision’s 2002 effective date and the alleged negligence occurred more than seven years earlier.

Suits where the injury was first ascertained prior to 2002 but the alleged negligence that caused the injury was discovered after 2002 are not barred, however, the court ruled.

In Bulebosh v. Flannery, a three-judge panel unanimously upheld a Westmoreland County trial judge’s order denying defendant Dr. Robert Flannery’s motion for summary judgment.
Flannery, according to court documents, had argued that plaintiffs Denise L. Bulebosh and Michael J. Bulebosh Jr. were barred from suing him by the MCARE seven-year statute of repose because their cause of action began to accrue in 2003, when Denise Bulebosh first became aware that her injuries may have been caused by surgeries she had in 1985 and 1989 to implant STA-peg devices in both of her feet.
But Judge Mary Jane Bowes, writing for the court, agreed with the plaintiffs that the latest possible date their cause of action began to accrue was in 2000, two years before the MCARE statute of repose went into effect, when pain and complications from the implant surgeries necessitated the second of two procedures to remove the devices from Denise Bulebosh’s feet.

Bowes said the Buleboshes correctly interpreted the court’s decision in Osborne as holding that a cause of action accrues for statute of repose purposes when a plaintiff becomes aware of an injury, not of the negligence that may have caused the injury.

In that case, according to court documents, the court held that plaintiff Francis X. Osborne’s malpractice suit over an injury allegedly stemming from a June 2000 laser eye surgery was barred by the statute of repose because his cause of action did not begin to accrue until his vision started to deteriorate in 2003, after the effective date of the MCARE statute of repose.

“Contrary to Dr. Flannery’s assertion, the cause of action did not arise in Osborne when Mr. Osborne knew or discovered with the exercise of reasonable diligence the connection between the LASIK surgery and his deteriorating vision,” Bowes said. “Rather, the cause of action arose once Mr. Osborne suffered some manifestation of a physical injury. Until that point in time, he had no damages.”

Bowes was joined by Judges David N. Wecht and Victor P. Stabile.

In Bulebosh, according to Bowes, Flannery performed surgeries to implant STA-peg devices in each of Denise Bulebosh’s feet in 1985 and 1989.

Bulebosh suffered pain and complications thereafter, necessitating that Flannery remove the devices from her right foot in 1992 and from her left foot in 2000, Bowes said.

The Buleboshes filed suit in 2005 in the Westmoreland County Court of Common Pleas alleging Flannery performed unsuitable surgeries in 1985 and 1989.

Flannery filed a motion for summary judgment arguing that the suit was barred by the statute of repose because the Buleboshes’ cause of action did not accrue until August 2003, when Denise Bulebosh first became aware of Flannery’s possible negligence in the 1985 and 1989 surgeries, according to Bowes.

The plaintiffs argued that, under Osborne, the latest possible date their cause of action could have accrued was in 2000, when Denise Bulebosh had the second device removed, two years before the MCARE statute of repose became effective, Bowes said.

Flannery, meanwhile, argued that the Osborne ruling stood for the proposition that a cause of action does not accrue until suspicion arises that the injury and the alleged negligence are causally linked.

The Buleboshes contended that Flannery conflated the point at which a cause of action accrues for MCARE statute of limitations purposes—when the injury is inflicted—with the point at which a cause of action accrues for statute of repose purposes—when the injury manifests.

Bowes agreed with the Buleboshes.

“The Buleboshes’ reading of our decision in Osborne is correct,” Bowes said. “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 the cause of action resulting from the tort did not arise until after the effective date of the act. Mr. Osborne’s ’cause of action did not arise until [he] suffered ascertainable negative effects of the LASIK surgery.’”

Bowes said the Osborne court “distinguished between ‘injury’ and ‘harm,’ and held that, even if a plaintiff had been injured, he could not pursue a claim for damages until he exhibited some ‘physical manifestation of harm’ resulting from the injury.”

Bowes said the court also found that the MCARE statute of repose was controlling in its 2012 decision in Matharu v. Muir because while the alleged negligence—the failure to administer RhoGAM during a mother’s pregnancy—occurred in 1998, the cause of action did not accrue until 2005, when a subsequent child died, allegedly due to complications from that failure.

Although the Matharu court ultimately found that Subsection 1303.513(d) of the MCARE Act provided an exception to the seven-year statute of repose in death cases, the ruling is still instructive as to Bulebosh, according to Bowes.

“In the instant case, there were no ascertainable negative effects when the contraindicated surgeries were performed,” Bowes said. “The injury, i.e., the physical manifestation of the harm, occurred years later when Mrs. Bulebosh experienced pain that necessitated additional surgeries to remove the STA-pegs in 1992 and 2000. However, in contrast to Osborne and Matharu, both the negligent act and the ascertainable injury in the instant case predated 2002, the effective date of the MCARE statute of repose.”

Counsel for Flannery, John W. Jordan IV of Matis Baum O’Connor in Pittsburgh, declined to comment on the ruling.

Counsel for the Buleboshes, Ned J. Nakles Jr. of Nakles and Nakles in Latrobe, Pa., said he thought the court’s analysis of the difference between the statute of limitations and the statute of repose was “outstanding.”

“That’s going be very informative for litigants in the future,” Nakles said.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI.

(Copies of the 13-page opinion in Bulebosh v. Flannery, PICS No. 14-0612, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •