                [J-10A-2017 and J-10B-2017] [MO: Mundy, J.]
               IN THE SUPREME COURT OF PENNSYLVANIA
                            EASTERN DISTRICT


ROBERT DUBOSE, ADMINISTRATOR         :   No. 21 EAP 2016
OF THE ESTATE OF ELISE DUBOSE,       :
DECEASED                             :   Appeal from the judgment of Superior
                                     :   Court entered 10/23/2015 at No. 2752
                                     :   EDA 2013 (reargument denied
          v.                         :   12/23/2015) affirming the judgment
                                     :   entered August 21, 2013, in the Court of
                                     :   Common Pleas, Philadelphia County,
MARK QUINLAN, DONNA BROWN,           :   Civil Division, at No. 0846, September
RNC, BSN, ALBERT EINSTEIN MEDICAL    :   Term 2009.
CENTER D/B/A WILLOWCREST,            :
WILLOWCREST AND JEFFERSON            :
HEALTH SYSTEM                        :
                                     :
                                     :
APPEAL OF: WILLOWCREST NURSING       :
HOME, ALBERT EINSTEIN                :
HEALTHCARE NETWORK, ALBERT           :
EINSTEIN MEDICAL CENTER D/B/A        :
WILLOWCREST AND WILLOWCREST          :   ARGUED: March 7, 2017

ROBERT DUBOSE, ADMINISTRATOR         :   No. 22 EAP 2016
OF THE ESTATE OF ELISE DUBOSE,       :
DECEASED,                            :   Appeal from the judgment of the
                                     :   Superior Court entered 10/23/2015 at
                Appellee             :   No. 2753 EDA 2013 (reargument denied
                                     :   12/23/2015) affirming the judgment
                                     :   entered August 21, 2013, in the Court of
          v.                         :   Common Pleas, Philadelphia County,
                                     :   Civil Division, at No. 1603 August
                                     :   Term, 2009.
WILLOWCREST NURSING HOME, AND        :
ALBERT EINSTEIN HEALTHCARE           :
NETWORK,                             :
                                     :
                Appellants           :   ARGUED: March 7, 2017


                CONCURRING AND DISSENTING OPINION

JUSTICE BAER                                   DECIDED: November 22, 2017
       I respectfully but vigorously dissent from the majority’s radical departure from this

Commonwealth’s well-established jurisprudence providing that the statute of limitations

for a medical professional negligence action commences when the cause of action

accrued (i.e., when the plaintiff was injured by the professional negligence). According

to the majority, where such an action is pursued by the deceased plaintiff’s personal

representative, the statute of limitations is extended, potentially for several years, until

two years after the plaintiff’s death, thereby granting the personal representative far

more rights than the plaintiff would have possessed while alive. Consistent with Chief

Justice Saylor’s dissenting opinion, I find no support for this proposition in Section

513(d) of the Medical Care Availability and Reduction of Error Act (“MCARE Act”), 40

P.S. § 1303.513(d). In my view, the majority’s strained interpretation of Section 513(d)

flies in the face of this Court’s settled case law regarding the nature of a survival action

and is contrary to both the purpose behind the MCARE Act and the express legislative

designation of Section 513 as a statute of repose.

       Notwithstanding my strong opposition to the majority’s interpretation of Section

513(d), I agree with the majority that the present action was filed timely based on the

trial court’s alternative holding that the statute of limitations was tolled by the discovery

rule until the decedent’s death.        Accordingly, I would affirm the Superior Court’s

decision, finding the action timely, on this alternative basis.

       As the majority acknowledges, Section 513 of the MCARE Act, 40 P.S. §

1303.513, entitled “Statute of repose,” provides, in relevant part:


       (a) GENERAL RULE.-- Except as provided in subsection (b) [relating to
       injuries caused by a foreign object left in the body] or (c) [relating to
       injuries of minors], no cause of action asserting a medical professional
       liability claim may be commenced after seven years from the date of the
       alleged tort or breach of contract.
              *                     *                     *


                    [J-10A-2017 and J-10B-2017] [MO: Mundy, J.] - 2
       (d) DEATH OR SURVIVAL ACTIONS.-- If the claim is brought under 42
       Pa.C.S. § 8301 (relating to [a wrongful] death action) or 8302 (relating to
       survival action), the action must be commenced within two years after the
       death in the absence of affirmative misrepresentation or fraudulent
       concealment of the cause of death.

40 P.S. § 1303.513.

       Consistent with the General Assembly’s express designation of Section 513 as a

statute of repose, the majority holds that subsection (a) is a statute of repose that

precludes medical professional liability causes of action from being commenced more

than seven years after the alleged tort, with exceptions not applicable here.            See

Majority Opinion at 21, 22 (providing that “Section 513(a) sets forth a seven-year statute

of repose for medical professional liability claims;” “Section 513(a) bars the plaintiff’s

ability to sue regardless of whether the cause of action accrued, whether the injury

occurred, or whether it was discovered.”). In construing the meaning of subsection (d),

however, the majority divorces that provision from its legislative designation as a statute

of repose.    Moreover, notwithstanding that the statutory text does not reference

“accrual” or “statute of limitations,” the majority interprets Section 513(d) as a statute of

limitations that alters profoundly the traditional time of accrual of a surviving professional

medical liability claim. I find this interpretation untenable.

       Critical to determining the import of Section 513(d) is an understanding of the

nature of a “survival action.” The Survival Act provides that “all causes of action or

proceedings, real or personal, shall survive the death of the plaintiff. . . .” 42 Pa.C.S.

§ 8302. As acknowledged by the majority, this Court has consistently held that the

survival statute does not create a new independent cause of action, but merely permits

a personal representative to enforce a cause of action that has already accrued to the

plaintiff before death. Pastierik v. Duquesne Light Co., 526 A.2d 323, 326 (Pa. 1987);

Anthony v. Koppers Co., 436 A.2d 181, 185 (Pa. 1981) (plurality); Pezzulli v.



                    [J-10A-2017 and J-10B-2017] [MO: Mundy, J.] - 3
D’Ambrosia, 26 A.2d 659, 661 (Pa. 1942). Thus, a personal representative pursuing the

tort action of a deceased plaintiff is bound by the two-year statute of limitations for

personal injury actions, 42 Pa.C.S. § 5524(2), which, by legislative mandate,

commences “from the time the cause of action accrued.” 42 Pa.C.S. § 5502(a).

       This Court has definitively declared when accrual occurs. We have held that

because a surviving tort action brought by the personal representative of a deceased

plaintiff is based upon the deceased plaintiff’s injuries, the cause of action accrues (and

the statute of limitations begins to run) when the plaintiff reasonably should have

discovered his or her injuries; if the plaintiff could not have reasonably discovered the

injuries while alive, the cause of action accrues, at the latest, at the time of plaintiff’s

death. Pastierik, 526 A.2d at 326; Anthony, 436 A.2d at 183. Naturally, the personal

representative’s claim mirrors the claim that the plaintiff would have pursued if alive, no

more and no less.

       In one fell swoop, the majority has eradicated this jurisprudence and holds that,

pursuant to Section 513(d) of the MCARE Act (entitled “Statute of repose”), the statute

of limitations for a medical professional liability claim brought by the deceased plaintiff’s

personal representative is no longer tied to when the plaintiff’s cause of action accrued

and no longer begins to run at the time the plaintiff reasonably should have discovered

the alleged injury, but, instead begins to run at the time of plaintiff’s death.        The

application of this holding to a fact pattern disparate from the one presented herein

illustrates its absurdity.   Assume that a physician negligently failed to diagnose a

patient’s cancer in 2010.     Assume further that later in that same year, the patient

became aware of the cancer and the physician’s failure to diagnose the condition. It

appears undisputed that under 42 Pa.C.S. § 5524(2), the patient’s statute of limitations

for this personal injury action would expire in 2012, two years after the injury was




                    [J-10A-2017 and J-10B-2017] [MO: Mundy, J.] - 4
discovered and the professional medical liability cause of action accrued. Under the

majority’s labored construction, however, if patient dies of the same cancer in 2015, the

patient’s cause of action that expired in 2012 is miraculously resurrected and,

remarkably, the patient’s personal representative has until 2017, i.e., two years from

patient’s death, to commence the action.1 Thus, the majority’s interpretation of Section

513(d), contained within a statute of repose, through nothing short of sleight of hand,

extends the statute of limitations from two to seven years, granting to the personal

representative an independent cause of action that the deceased plaintiff could not have

pursued personally in his own right had he remained alive.

      By any stretch of the imagination, this could not be what the General Assembly

intended when it enacted Section 513(d) of the MCARE Act. There is no language in

Section 513(d) suggesting that the General Assembly intended to alter fundamentally

the existing substantive law by creating an independent cause of action of the plaintiff’s

personal representative, which is unmoored to the plaintiff’s injuries and is, instead,

tethered only to the time of the plaintiff’s death. The majority, in essence, has taken a

legislative restriction on the filing of a cause of action, as demonstrated by the General

Assembly’s designation of the provision as a statute of repose, and, as revealed by the

posed hypothetical, transformed it into an expansion of the time for filing the cause

action by potentially more than threefold.     The majority accomplished this task by

interpreting language in the MCARE Act, which was enacted in response to perceived

spiraling costs of medical malpractice claims. Pa. Med. Soc’y v. Dep’t of Pub. Welfare,

39 A.3d 267, 271 (Pa. 2012); see also 40 P.S. § 1303.102(1) & (3) (providing that the


1
 We note that the personal representative’s action commenced in 2017 was filed within
Section 513(a)’s seven-year statute of repose, which the majority recognizes as the only
valid statute of repose set forth in Section 513.



                   [J-10A-2017 and J-10B-2017] [MO: Mundy, J.] - 5
purpose of the MCARE Act is to ensure that high quality health care is available in this

Commonwealth and that medical professional liability insurance is obtainable at an

affordable and reasonable cost). 2 I cannot join this undisciplined judicial expansion of

the law.

       Considering, as we must, the language of subsection (d) in the context in which it

appears in Section 513 (“Statute of repose”) and in connection with the statutory

scheme of the MCARE Act as a whole, it becomes clear that Section 513(d)’s language

that the surviving medical professional liability claim “must be commenced within two

years after the death” merely codifies existing law. See Saylor, J., dissenting, at 3

(opining that “Section 513(d) does nothing more than codify aspects of the decisional

law pertaining to the outside limits of accrual and tolling relative to survival actions”).

Section 513(d) reiterates the long-established link between the plaintiff’s cause of action

and the personal representative’s cause of action as it applies to the statute of repose,

such that the personal representative’s time constraints are commensurate with those of

the plaintiff. Had the Legislature intended to lengthen significantly the time period in

which surviving medical professional liability claims could be filed and thereby effectuate

the dramatic transformation of the law that the majority purports, it would have done so

expressly, and it would not have done so within a statute of repose.

       Notwithstanding my fundamental disagreement with the majority’s interpretation

of Section 513(d), I agree that, in this case, the action was filed timely. As noted, I rely

upon the trial court’s alternative holding that the statute of limitations was tolled by the

discovery rule until the decedent’s death, given the ongoing and cumulative nature of

2
  The majority’s interpretation of Section 513(d) also creates an unnecessary distinction
between the accrual of different types of survival claims, whereby survival claims based
upon professional medical negligence accrue at the time of death, while other survival
claims, such as those alleging a defective product, accrue at the time of injury.



                    [J-10A-2017 and J-10B-2017] [MO: Mundy, J.] - 6
the decedent’s disabling injuries which ultimately resulted in her death. See Trial Court

Opinion, June 27, 2014, at 11-12 (holding that, ‘[a]lternatively, [Appellee] would have

two years under the discovery rule to bring a survival action for pain and suffering,

especially where the decedent was comatose”).

       In summary, I would interpret Section 513(d) as a statute of repose, setting forth

the maximum allotted time in which a personal representative of a deceased plaintiff

may file a medical professional liability claim, i.e., within two years from death. As the

two-year statute of limitations began to run when the decedent reasonably should have

discovered her injuries and the record supports the trial court’s conclusion that the

decedent’s condition rendered her unable to discover her injuries while alive, the

decedent’s personal representative had two years from the date of her death to file the

instant action. Having filed the action within such two-year period, I agree with the

majority’s mandate to affirm the lower court’s determination that decedent’s survival

action was filed timely.




                    [J-10A-2017 and J-10B-2017] [MO: Mundy, J.] - 7
