Bulebosh v. Flannery

91 A.3d 1241

2014 PA Super 79

Denise L. BULEBOSH and Michael J. Bulebosh, Jr., her husband, Appellees

v. Robert FLANNERY; Westmoreland Podiatry Associates.Appeal of Robert Flannery, D.P.M., Appellant.

Superior Court of Pennsylvania.

Argued Jan. 28, 2014.

Filed April 22, 2014.

Reargument Denied June 24, 2014.

John W. Jordan, IV, Pittsburgh, for appellant.

Ned J. Nakles, Jr., Latrobe, for appellee.

BEFORE: BOWES, WECHT, and STABILE, JJ.

OPINION BY BOWES, J.:

In this medical malpractice action, Robert Flannery, D.P.M., appeals from the March 21, 2013 order denying his summary judgment request, which was premised on the statute of repose of the Medical Care Availability and Reduction of Error Act (“MCARE”), 40 P.S. § 1303.501. The collateral order doctrine provides the basis for our jurisdiction to entertain this interlocutory appeal. See Osborne v. Lewis, 59 A.3d 1109 (Pa.Super.2012). ¹ We conclude that the statute of repose does not apply to Mrs. Bulebosh's cause of action, which arose prior to its effective date, and hence, we affirm.

Denise Bulebosh and her husband Michael commenced this medical negligence action against Dr. Flannery on February 2, 2005, by a praecipe for writ of summons. In the complaint filed on May 6, 2005, they alleged that Dr. Flannery was negligent in performing unsuitable surgeries to implant STA-peg devices in both of wife-plaintiff's feet in 1985 and 1989, respectively. Additionally, the Buleboshes alleged that during the 2000 surgery to remove the device from Mrs. Bulebosh's left foot, Dr. Flannery negligently failed to remove the entire device. Finally, they alleged that Dr. Flannery failed to provide informed consent prior to the 1985 and 1989 surgeries. Mrs. Bulebosh pled that she first became aware of Dr. Flannery's potential negligence and her lack of informed consent after an August 8, 2003 surgery performed by Dr. Carl Hasselman.

In his answer and new matter, Dr. Flannery pled that both MCARE's statute of limitations and statute of repose barred maintenance of the action. On March 7, 2011, Dr. Flannery filed a motion for summary judgment premised on those defenses, which was denied on June 16, 2011. On or about January 28, 2013, Dr. Flannery renewed his summary judgment request by means of a motion in limine /motion for reconsideration/petition to file an interlocutory appeal. ² He asked the court to reconsider its denial of summary judgment in light of two subsequent decisionsof this Court involving the MCARE Act statute of repose: Osborne v. Lewis, supra, and Matharu v. Muir, 29 A.3d 375 (Pa.Super.2011) ( en banc ). Matharu was thereafter vacated by the Pennsylvania Supreme Court and remanded for reconsideration to this Court, ––– Pa. ––––, 73 A.3d 576 (2013), but we reaffirmed our prior ruling upon remand. Matharu v. Muir, 2014 PA Super 29, 86 A.3d 250 (Pa.Super.2014) ( en banc ). On March 21, 2013, the trial court again denied the motion, but included in its order the statement required by 42 Pa.C.S. § 702(b) for an appeal by permission pursuant to Pa.R.A.P. 1311. Rather than seek permission from this Court to appeal, however, Dr. Flannery filed an appeal as of right pursuant to Pa.R.A.P. 313.

Appellant presents one issue for our review: “Does the seven-year statute of repose provided by 40 P.S. § 1303.513(a) (effective March 20, 2002) bar claims filed in 2005 by plaintiffs who learned in 2003 that the injuries complained of were caused by malpractice by the defendant in surgeries performed in 1985 and 1989?” Appellant's brief at 5.

The applicability of the MCARE statute of repose presents a question of law for which our standard of review is de novo and our scope of review is plenary. Osborne, supra. We must construe 40 P.S. § 5105(b), which provides that the statute of repose in 40 P.S. § 1303.513³ “shall apply to causes of action which arise on or after the effective date of this section.” 40 P.S. § 5105(b). The effective date is March 20, 2002.

Until the legislature enacted MCARE, and specifically 40 P.S. § 1303.513, there was no statute of repose applicable to medical negligence actions. The only time limitation on commencement of professional liability actions was the general two-year statute of limitations in 42 Pa.C.S. § 5502, as modified by the discovery rule. It is uncontroverted that if the MCARE statute of repose is applicable in this case, all claims arising from the negligent surgeries in 1985 and 1989 are time-barred pursuant to Section 1303.513(a), as the tortious acts occurred more than seven years before the commencement of the within action.⁴ The claim based on Dr. Flannery's negligent failure to remove the entire STA-peg device in 2000 would not be extinguished, however, as it falls within the exception to the seven-year statute of repose for injuries caused by foreign objects unintentionally left in the individual's body. 40 P.S. § 1303.513(b).

Our courts have previously grappled with the issue of when a cause of action arises. In Ieropoli v. AC & S Corp., 577 Pa. 138, 842 A.2d 919, 929–30 (2004), our Supreme Court noted that, “the phrase does not have a single definition, and means different things depending on context.”

At times and in certain contexts, it is identified with the infringement of a right or the violation of a duty. At other times and in other contexts, it is a concept of the law of remedies, the identity of the cause being then dependent on that of the form of action or the writ. Another aspect reveals it as something separate from writs and remedies, the group of operative facts out of which a grievance has developed.

Fisher v. Hill, 368 Pa. 53, 81 A.2d 860, 864 (1951) (quoting United States v. Memphis Cotton Oil Co., 288 U.S. 62, 67–68, 53 S.Ct. 278, 77 L.Ed. 619 (1933) (footnotes omitted)).

In Olshan v. Tenet Health System City Avenue, LLC, 849 A.2d 1214 (Pa.Super.2004), this Court examined the meaning of the language “county in which the cause of action arose” in 42 Pa.C.S. § 5101.1, the venue provision applicable to medical negligence actions. The plaintiff in that case was misdiagnosed in one county but filed suit in another county. We held that for venue purposes, the cause of action arose in the county where the negligent act or omission occurred. In accord Bilotti–Kerrick v. St. Luke's Hospital, 873 A.2d 728, 731 (Pa.Super.2005) (holding for purposes of venue, “cause of action” in negligence cases means “the negligent act or omission, as opposed to the injury which flows from the tortious conduct”); Peters v. Sidorov, 855 A.2d 894 (Pa.Super.2004) (cause of action arose in county where drug was misprescribed, not the county where the injury occurred upon ingestion of the drug).

Traditionally, in actions to recover damages for personal injuries, our courts have looked to the date of the negligent act or omission as the inception date for a cause of action. Focht v. Focht, 613 Pa. 48, 32 A.3d 668 (2011) (citing Wilson v. El–Daief, 600 Pa. 161, 964 A.2d 354, 361 (2009) and Fine v. Checcio, 582 Pa. 253, 870 A.2d 850, 857 (2005)). Fine expressed “the general rule that a cause of action accrues, and thus the applicable limitations period begins to run, when an injury is inflicted.” Wilson, supra at 361. The rule presupposes, however, that an ascertainable harm is apparent when injury has been inflicted. This is consistent with the definition of a “medical professional liability claim” in the MCARE statute as “Any claim seeking the recovery of damages or loss from a health care provider arising out of any tort or breach of contract causing injury or death resulting from the furnishing of health care services which were or should have been provided.” 42 Pa.C.S. § 5101.1.

The dispositive questions herein are when did Mrs. Bulebosh's cause of action arise and was it before or after the effective date of the MCARE statute. Dr. Flannery contends that Mrs. Bulebosh's cause of action did not accrue until August 8, 2003, the date she became aware of his possible negligence. He cites Wilson v. El–Daief, supra, and Osborne, supra, in support of his contention that the time before a plaintiff is alerted to the possibility that he has a negligently-caused injury is part of accrual of a cause of action. In Osborne, we held that the plaintiff's cause of action arose in 2003 when his vision began to deteriorate. Dr. Flannery construes our holding as additionally requiring some suspicion that the tortious act and the injury are causally connected before a cause of action would arise.

The Buleboshes contend that under Osborne, the cause of action arises for purposes of the statute of repose when the negligent act has resulted in ascertainable injury. While the negligently undertaken LASIK surgery in Osborne predated the effective date of the statute of repose, there was no discernible injury until 2003 at the earliest, after the statute's effective date. The cause of action arose not when the negligent act occurred, but upon manifestation of the injury. Herein, the alleged contraindicated STA-peg surgeries occurred in 1985 and 1989. The pain and complications from the procedures necessitated removal of the devices in 1992 and 2000, which, according to the Buleboshes, establishes the latest possible date when the injury was manifested. Hence, the Buleboshes maintain that the cause of action arose two years prior to the effective date of the MCARE statute of repose, and that statute does not apply.

Furthermore, the Buleboshes contend that our holding in Osborne hinged on the plaintiff's realization that he was injured, i.e., that his vision had deteriorated, not on his awareness of a potential cause of action. They argue that Dr. Flannery is conflating the date when a plaintiff becomes aware of a potential cause of action for purposes of the statute of limitations and the date when a cause of action first accrues for statute of repose purposes, which are two distinct concepts. The accrual date asserted by Dr. Flannery is actually,...