December 15th, 2022 by Rieders Travis in Statute of Limitations

Reibenstein v. Barax, 2022 Pa. LEXIS 1787 (December 12, 2022) (Wecht, J.)  MCARE § 513(d) provides that its two-year limitations period on death actions, which commences upon death, will be tolled when there is an affirmative misrepresentation or fraudulent concealment of the cause of death. Appellee Linda Reibenstein undisputedly brought her claims against Appellant Patrick Conaboy, M.D., after the two-year period had run, and the death certificate undisputedly and correctly noted the medical cause of Reibenstein’s decedent’s death. The trial court ruled that the phrase “cause of death” refers specifically and only to the direct medical cause of death. Accordingly, it granted summary judgment to Dr. Conaboy under Section 513(d). The Superior Court reversed, interpreting “cause of death” more broadly to encompass considerations associated with the manner of death (i.e., legal cause) in the sense alluded to above. We hold that MCARE’s tolling provision cannot bear the breadth of that reading. Accordingly, we reverse.  Decedent Mary Ann Whitman consulted with Dr. Conaboy on April 12, 2010, complaining of a persistent cough, fever, and lower back pain. Dr. Conaboy ordered an aortic duplex ultrasound scan and a CT scan of Whitman’s abdominal area, both of which were performed on April 23, 2010. Charles Barax, M.D., a radiologist, reviewed the scans, identifying what he characterized as a poorly visualized aortic aneurysm. Dr. Barax’s report indicated that “Dr. Conaboy was contacted with this study [and] was read [sic] with the findings” and that the report was provided to Dr. Conaboy. Dr. Conaboy scheduled Whitman to meet with a vascular surgeon on May 10, 2010, but Whitman died when the aneurysm ruptured on April 28, 2010. The parties do not dispute that Whitman’s death certificate correctly identified the rupture as her cause of death.  On April 15, 2011, Reibenstein, administratrix of Whitman’s estate, brought a wrongful death and survival action against Dr. Barax and Mercy Hospital Scranton (collectively, “Dr. Barax”). The thrust of the suit was that Dr. Barax had misread Whitman’s CT scan, failing to recognize the urgency of her condition. Reibenstein finally deposed Dr. Barax nearly five years after Whitman’s death, almost four years after filing suit against him. During that February 2015 deposition, Dr. Barax indicated that he spoke personally with Dr. Conaboy on the day that the CT scan was performed on Whitman. In that conversation, according to Dr. Barax, he specifically informed Dr. Conaboy both of the presence of an abdominal aortic aneurysm and, importantly, explained that the poor quality of the visualization prevented him from determining whether the aneurysm was rupturing or bleeding. He “further testified that he conveyed to Dr. Conaboy his concerns of a potential rupture.”  Based upon this testimony, but over a year after the deposition, on March 1, 2016, Reibenstein filed a new wrongful death and survival action against Dr. Conaboy and his associated practice.  This second suit was premised upon Dr. Conaboy’s alleged failure to act in light of more detailed information he received in conversation with Dr. Barax, the full substance of which, in Reibenstein’s view, was not fully explained in Dr. Conaboy’s response to written discovery. Dr. Conaboy ultimately sought summary judgment on the basis that MCARE’s statute of limitations for wrongful death and survival actions had long-since run on or about April 28, 2013, almost three years before Reibenstein sued Dr. Conaboy. The trial court heard argument and denied summary judgment.  The discovery rule applies when critical information about an injury eludes detection through no lack of diligence on the plaintiff’s part, and the “discovery” of that information accordingly dictates when a claim accrues and the limitations period begins to run. But when potential malpractice leads to death, there is no question that injury has occurred—death alone is a signal event, a sufficient impetus to investigate the prospect of malpractice diligently. To be sure, the discovery rule and equitable tolling are conceptually distinct. In discovery-rule cases, claims accrue only upon discovery of the injury and its cause, while the equivalent of accrual in death cases happens upon death as a matter of course. But the statute of limitations will be tolled when the cause of death is obscured by some affirmative act or omission that lulled the plaintiff into neglecting his or her duty to investigate to determine whether there was an actionable claim in malpractice.  The discovery rule begins to run upon the discovery of injury and the prospect that it was caused by malpractice (if not, as explained immediately above, necessarily whose malpractice). But once the claim accrues, the clock ticks inexorably, no matter how difficult it may be to trace that injury back to a tortious act. Even on the broadest available reading of our discovery-rule jurisprudence, the statute of limitations begins to run—at the latest—once one discovers an injury, its cause, and an agent of the harm. And there is no assurance that some additional reprieve from the passage of that time will apply where, during the course of litigation, a second potentially liable party enters the picture.  In death actions, death itself is the watershed event, analogous to satisfying the discovery-of-injury and tortious-causation requirements relative to the discovery rule. So it is upon death that any potential claim accrues, triggering a would-be plaintiff’s duty of inquiry. What follows in either case may be a frustrating, uncertain investigation, which may yield insufficient evidence of malpractice even where it has occurred. And as noted in one form above, one of the problems that Reibenstein claims in this case—that identifying a responsible party may not occur in the discovery process until after the statute of limitations has run against that responsible party —may occur in a non-death case. The fact remains, though, that the triggering event for the discovery rule is the discovery of injury and the prospect that it was caused by malpractice itself, not the certain discovery of all responsible parties. Naturally, the average injured party or survivor may not be equipped to assess quality of care, the presence of treatment alternatives, or other considerations relevant to the presence or absence of a viable malpractice claim.  But the critical consideration is “inquiry notice” and the duty of diligent inquiry that follows: in most cases, it is uncertainty or specific concerns, based perhaps on a review of medical records or the content of interactions with treating health care providers, that will raise a potential plaintiff’s suspicions. Beyond that, it is likely that further appraisals will require the involvement of an attorney and/or outside expert review. We do not reject entirely the salience of Reibenstein’s claim that limiting the tolling provision to medical causation will force plaintiffs to cast their nets more widely in determining whom to sue. But while a plaintiff may at least begin suit against a bevy of health care providers with writs of summons, the certificate of merit requirement will nip unsubstantiated threats in the bud, as it evidently did in this case, when Reibenstein was unable to obtain a certificate of merit against Dr. Conaboy early in this litigation. Plaintiffs will have an opportunity to conduct timely, rigorous investigations of potential malpractice actions arising from fatal events, in keeping with MCARE’s objective. Reibenstein also does not account for the availability of pre-complaint discovery. Since 2007, the Pennsylvania Rules of Civil Procedure have provided for discovery in furtherance of preparing a complaint, a mechanism that Reibenstein apparently did not explore in this case. Pursuant to Rule 4003.8, which was adopted in the wake of our decision in McNeil v. Jordan, “[a] plaintiff may obtain pre-complaint discovery where the information sought is material and necessary to the filing of the complaint and the discovery will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party. “This general rule is bolstered by companion provisions in Pennsylvania Rules of Civil Procedure 4001(c)4005(a), and 4007(c), which collectively provide for pre-complaint interrogatories and depositions. Reibenstein could not have ruled out the prospect that the trial court in its discretion would allow her to seek such discovery. It would be unreasonable to deny Dr. Conaboy the benefit of MCARE’s statute of limitations merely because Reibenstein failed to investigate Dr. Conaboy’s putative role in Decedent’s death more diligently. Reibenstein would have us believe that she never had any chance of identifying Dr. Conaboy as a proper defendant in this action within the limitations period. But the facts and circumstances of this case suggest otherwise. Reibenstein’s own complaint indicates that, in the days before Decedent’s death, at least three physicians, including Dr. Conaboy, examined Decedent.  Reibenstein clearly was conscious of the possibility of malpractice, and had no reason at the outset to exclude any of the treating physicians from her preliminary investigations. Indeed, she “obtained expert review and opinion regarding the medical care and treatment provided by all health care professionals identified in [her medical] records.”It is true, as Reibenstein emphasizes, that she could not file a complaint against Dr. Conaboy (or any provider) without first securing a certificate of merit, and Reibenstein asserts that she sought one unsuccessfully. But this tells us nothing about the quantum and quality of the information and guidance that she gave her chosen expert, and, in any event, disregards the alternative course of filing a writ of summons and seeking pre-complaint discovery. The phrase “cause of death” as used in MCARE Section 513(d) refers specifically to the medical cause of death. Only an affirmative misrepresentation or fraudulent concealment of such medical cause of death will toll the two-year statute of limitations that MCARE prescribes for medical malpractice claims sounding in survival or wrongful death. As we explain above, death and non-death cases differ only in two ways, neither of which precludes drawing a useful analogy between them. See generally supra at 17-20. The first way they differ is that, in wrongful death cases, death itself has been deemed sufficient to put a would-be plaintiff on inquiry notice of the prospect of wrongdoing and to commence the running of the statute of limitations. In non-death cases, by contrast, inquiry notice and the running of the statute of limitations occurs when an injury was or could have been discovered by the plaintiff after diligent investigation. The second distinction, which follows from the qualitative difference between death and injury that underlies the first, arises because the discovery rule must address a wider array of obscuring circumstances that might, in the interests of fairness, reasonably warrant its application, while the limitations period in death cases warrants tolling only when fraudulent concealment or affirmative misrepresentation obscures the cause of death and leads a would-be plaintiff to rest rather than investigate the circumstances of the death—or perhaps prompt an expert or attorney to decline a case that he or she might examined more closely if the medical cause of death had been accurately recorded, Our point is that the respective doctrines serve the same core purpose, for the same general reasons, and do so by the same mechanism—the tolling of the statute of limitations, whether for equitable or statutory reasons. Both, that is to say, reflect the judgment that when even diligent inquiry is confounded, relief from the statute of limitations is due. This analogy between the case law that preceded MCARE § 513‘s enactment, as informed both by discovery rule and death cases that addressed tolling, arguably supports the narrow construction of “cause of death” that the statutory language itself requires. MCARE’s use of the phrase “cause of death” necessarily incorporates both medical and legal cause of death. We reverse the Superior Court’s contrary ruling, and we remand for restoration of the trial court’s grant of summary judgment in Dr. Conaboy’s favor.

Attorney Cliff Rieders

Attorney Cliff RiedersCliff Rieders is a Nationally Board Certified Trial Lawyer practicing personal injury law. A large part of his practice involves multi-district litigation, including cases related to pharmaceuticals, vitamin supplements and medical devices. He is admitted in several state and federal courts, as well as the Supreme Court of the United States. Rieders is the past regional president of the Federal Bar Association and is a life member of the distinguished American Law Institute, which promulgates proposed rules adopted by many state courts. He is a past president of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. As a founder of the Pennsylvania Patient Safety Authority, he served on the Board for 15 years.

Not only has Rieders held many highly esteemed, leadership positions, he authored legislation related to the Patient Safety Authority and the Mcare Act, which governs medical and hospital liability actions in Pennsylvania. He authored texts upon which both practitioners and judges rely, including Pennsylvania Malpractice Laws and Forms, and Financial Responsibility Law Issues in Pennsylvania, the latter governing auto and truck collisions in Pennsylvania. In addition, he wrote several books on the practice of law in Pennsylvania regarding wrongful death and survivor actions, insurance bad faith, legal malpractice claims and worker rights, among others. Rieders also serves as a resource to practitioners as a regular speaker for Celesq, an arm of the world’s largest legal publisher, Thomson Reuters West Publishing.

As recognition of his wide range of contribution to his profession and of his dedication to protecting the rights of his clients, he received numerous awards, among them the George F. Douglas Amicus Curiae Award, the Milton D. Rosenberg Award, the B’nai B’rith Justice Award, and awards of recognition from the Pennsylvania Trial Lawyers. [ Attorney Bio ]



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