Applications of the Statute of Repose in Medical Malpractice Cases

In the medical malpractice context, there are often allegations about a lack of continuity of care. It is typically used as a sword by the plaintiffs bar to argue that the medical care broke down during the course of a patient’s treatment history. However, in cases where the continuity of care spans many years, the defense bar can draw its own sword. The rarely invoked statute of repose, codified in the Medical Care Availability and Reduction of Error Act, 40 P.S. Section 1303.513, eliminates a cause of action altogether if the cause of action is commenced seven or more years from the date of the alleged tort. Because of its strict application, the statute of repose can prove to be an insurmountable challenge for plaintiffs seeking recovery. Whereas the statute of limitations’ discovery rule or tolling argument gives plaintiffs a life-line if they are unaware of the alleged negligence, the discovery rule does apply or defeat a statute of repose defense. As a result, the importance of the statute of repose should not be understated as it can operate to cut off certain claims or evidence at trial, especially when there have been multiple deviations from the standard of care over a period of time (most often seen in the context of failure to diagnose).

As mentioned briefly above, the statue of repose is rarely invoked and often overlooked. The Medical Care Availability and Reduction of Error Act (MCARE Act) was passed on March 20, 2002. Meaning, the statute of repose defense—which is waivable and must be alleged in new matter—has been available in all medical malpractice actions filed since then. While the annual number of medical malpractice claims has decreased since the passage of the MCARE Act, there are still approximately 1,500 medical malpractice lawsuits instituted in Pennsylvania every year. Thus, over a 15-year period, there were approximately 22,500 lawsuits that could have been subject to this affirmative defense. Yet, according to Westlaw, there have only been eleven cases concerning the MCARE Act’s statute of repose. Whether the limited number of cases is merely coincidental, a good defense practice is to include the statute of repose as a standard affirmative defense in order to preserve the issue.