In 2003, a patient had liver transplant surgery at UPMC, a Pittsburgh based healthcare system. In a recent 4 to 3 decision, the Pennsylvania Supreme Court decided to throw out the state law barring medical malpractice lawsuits after 7 years. The case lives on.
A little history and background.
In 2002, the Pennsylvania legislature, in response to the then current medical malpractice crisis, enacted assorted tort reforms. It did so to control runaway premium costs and prevent doctors from fleeing the state. One of the reforms put a hard cap on when a claim could be brought. It is called the statute of repose. In Pennsylvania, it was set at seven years. The statute of repose is a bit different from the statute of limitations. The statute of limitations prevents a claim from being brought after X years from date the negligence was discovered or should have been discovered. The statute of repose adds to the statute of limitations. It imposes a hard bar on the number of years from the date of the event triggering the negligence – no matter when the negligence was discovered.
For example, if the statute of limitations is two years and the statute of repose is 4 years, this means that if the patient discovers the negligence 3 years after surgery, then files suit within a week, the suit goes on. Why? The patient just discovered the negligence, so he is within the statute of limitations. Plus, the suit is filed before four years from surgery have elapsed.
A different example from the same state – with the statute of limitations being two years and the statute of repose being 4 years:
(a) if a patient discovers the negligence 5 years after surgery, and files suit the next week; or
(b) if a patient discovers the negligence 2 years after surgery, then waits for 5 years after surgery to file suit –
the legal system delivers the same outcome. The suit is barred by the statute of repose. The defendant prevails.
Back to Pennsylvania.
In 2003, Christopher Yanakos donated a portion of his liver to his mother, Susan Yanakos. Susan suffered from alpha-1 antitrypsin deficiency (AATD). According to the lawsuit, UPMC doctors supposedly tested Christopher for alpha-1 antitrypsin deficiency, but never informed him of the results. He donated a portion of his liver to his mom.
In 2014, Susan learned she still had alpha-1 antitrypsin deficiency. This was discovered after a routine blood test. Christopher had a similar test and learned he also had alpha-1 antitrypsin deficiency. Both Christopher and Susan are still alive.
Christopher may need a liver transplant in the future, though the procedure may be more difficult because his liver was surgically altered during the lobe donation, according to Cavanaugh.
“The family assumed that if the liver transplant went forward, the doctors would use a healthy liver,” Cavanaugh said. “It was a safe assumption by the family that Christopher didn’t have AATD, but in fact he did. There’s no way the plaintiffs could have found all that out within seven years.”
the statute of repose unconstitutionally violates the right of access to the courts and lacks any substantial relationship to the legislative goal of controlling malpractice insurance costs and premiums.
Apparently six other states have also have had statutes of repose struck down – Alabama, Indiana, Kentucky, New Hampshire, Rhode Island, and Utah.
The import is that a med mal case may have a long shelf life well after the medical event transpired. This may have the same effect on premiums for many specialties that the long effective statute of limitations has for ob-gyn physicians. If an infant is injured, they have years to file a claim.
What can be done? Hard to say. One option is binding arbitration under the Federal Arbitration Act (FAA). The FAA is a federal law enacted decades ago. The FAA has withstood the test of time. The US Supreme Court has stated on several occasions it (federal law) trumps state law if the state tries to place restrictions on using arbitration for resolving disputes in health care. The state can still place reasonable restrictions on the formation of the arbitration contract. For example, if the patient is asked to sign an arbitration agreement while on the gurney and propofol is ready to be infused for anesthesia, that would be considered unconscionable and struck down. But, if the patient is given time to review the agreement; it is written in plain language and not buried in 25 other documents; and any restrictions are mutual and not onerous, the arbitration agreement would likely be enforceable.
Could an arbitration agreement be used to bring back a reasonable statute of repose? Possibly. If state courts have ruled that 7 years may be too short and you want 7 years to be the hard cap, the arbitration agreement should “give” the patient something in return; for example, the defendant doctor would pay the first $3k in arbitration fees. Or some other “give.” You would give to get. That is the essence of any bargained-for agreement.
It will be interesting to see if this ruling moves the needle on Pennsylvania professional liability premiums. Rates are already starting to climb. I would not be surprised if the effect is a sharp swing up. If this materializes, then the courts will soon have precisely the information they said argued missing in this case:
“The statute of repose lacks any substantial relationship to the legislative goal of controlling malpractice insurance costs and premiums.”
This development reinforces a point we express to our member physicians every day. In the medico-legal space, you must expect the unexpected. And you can be certain aggressive plaintiff attorneys will use this legislation to resurrect meritless claims long thought dead.
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What do you think about the Supreme Court’s decision? Click here to join the conversation below.
Jeffrey Segal, MD, JD
Chief Executive Officer and Founder
Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.
Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.
In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.
Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. With decades of combined experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.
Seems that making a change like this violates ex post facto, no? The courts could announce up front that this will be joe they’re going to play going forward, bad idea that it is, but to change liability after the fact is wrong on plenty levels.
Not really ex-post-facto, Joseph — as harsh as it may seem to the professional to be. The court is not making a new law — rather, it is striking down the constitutionality of a prior law. The court is saying: because this law is unconstitutional, we declare now that it in truth never really existed. There may be more complication in the field of criminal law — but for civil, this is probably the best way to conceptualize it.
Whatever, the legal eagles think, this is ridiculous to be allowed to sue because of something that happened in 2003, then you can sue in 2014 or thereafter. People want no personal accountability for their individual health care, including reviewing their own labs and asking questions. They want endless periods in which to sue for any mistake or misadventure that might have occurred. In that case, I want to sue the urologist (also, the hospital, his estate and heirs) that did a procedure on me in 1975 without my consent, because I was ahead of my time and capable to manage my own health care at age 5! These ridiculous court rulings are one reason I am actively looking to leave medicine ASAP, and I no longer recommend it as a profession to enter. Physicians that are smart will move out of those states which have such ridiculous statutes of limitations or repose.
I suspect it would have made no difference in the decision to donate the liver part to his mother…really!
The other challenge with prosecuting cases years later is that information goes stale. In many states, physicians are allowed to destroy medical records after X number of years after the patient was last seen. If the records are gone, it’s harder to defend. Likewise, people move, get sick, and die. These people could be witnesses. And memories fade over time.
My point…while I understand why judges are cautious in denying plaintiffs a remedy, at some arbitrary number of years after an event, fairness dictates that we close the door.