J-A07035-20


                               2020 PA Super 179

 LINDA REIBENSTEIN, AS THE                         : IN THE SUPERIOR COURT
 ADMINISTRATRIX OF THE ESTATE OF                   : OF PENNSYLVANIA
 MARY ANN WHITMAN, DECEASED                        :
                                                   :
                   Appellant                       :
                                                   :
                                                   :
              v.                                   :
                                                   :  No. 1624 MDA 2019
                                                   :
 CHARLES BARAX, M.D.; AND                          :
 MERCY HOSPITAL, SCRANTON                          :
 __________________________________                :
 LINDA REIBENSTEIN, AS THE                         :
 ADMINISTRATRIX OF THE ESTATE                      :
 OF MARY ANN WHITMAN, DECEASED                     :
                                                   :
                   Appellant                       :
                                                   :
                                                   :
              v.                                   :
                                                   :
                                                   :
 PATRICK D. CONABOY, M.D.; AND                     :
 COGNETTI & CONABOY FAMILY PRACTICE,               :
 P.C.                                              :
                                                   :
                   Appellees                       :


             Appeal from the Order Entered August 29, 2019
   In the Court of Common Pleas of Lackawanna County Civil Division at
                          No(s): 2016-01716


BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.

OPINION BY McLAUGHLIN, J.:                            FILED JULY 30, 2020

     The Medical Care Availability and Reduction of Error Act (“MCARE”)

provides a statute of limitations that requires a claimant to commence a
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wrongful death or a survival action asserting medical professional liability

claim within two years after the death. See 40 P.S. § 1303.513(d). However,

that statute of limitations is subject to equitable tolling for “affirmative

misrepresentation or fraudulent concealment of the cause of death.” Dubose

v. Quinlan, 173 A.3d 634, 647 (Pa. 2017) (quoting 40 P.S. § 1303.513(d)).

     Here, the trial court granted summary judgment in favor of Patrick D.

Conaboy, M.D., and Cognetti and Conaboy Family Practice, P.C. (collectively,

“the Conaboy Defendants”), concluding that this action was commenced more

than two years after the death and there was “no evidence of ‘affirmative

misrepresentation or fraudulent concealment of the cause of death.’” See Trial

Court Opinion, 10/23/19, at 4. We disagree that there was “no evidence” to

support the   application of subsection 1303.513(d)’s equitable         tolling

provision. We therefore vacate the summary judgment order.

     We derive the factual and procedural history in this matter from the trial

court’s October 23, 2019 opinion and our review of the certified record.

Because we are reviewing an order granting summary judgment, we “take all

facts of record and reasonable inferences therefrom in a light most favorable

to the non-moving party,” which here means in the light most favorable to

Appellee. See Nicolaou v. Martin, 195 A.3d 880, 891 (Pa. 2018).

     Mary Ann Whitman died on April 28, 2010, as a result of a ruptured

abdominal aortic aneurysm. Five days before her death, at the request of her

primary care physician, Dr. Conaboy, Mrs. Whitman underwent a CT scan,

which Dr. Charles Barax reviewed. After reviewing the scan, Dr. Barax drafted

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a radiology report that stated that Mrs. Whitman had an abdominal aortic

aneurysm that was “poorly visualized” on the study. His report did not

document an aneurysm rupture, or any concern of a possible rupture. The

report states, “Dr. Conaboy was contacted with this study was [sic] read -with

the findings.” See Radiology Report, April 23, 2010, at 2, R.R. 100a.

      Approximately one year after Mrs. Whitman’s death, in April 2011, the

administratrix of Mrs. Whitman’s estate, Linda Reibenstein, commenced this

suit and filed a complaint against Dr. Barax and his employer, Mercy Hospital,

Scranton, asserting causes of action under the Wrongful Death Act and the

Survival Act. As discovery proceeded, Reibenstein made several unsuccessful

attempts to schedule Dr. Barax’s deposition. She obtained the trial court’s

intervention and she finally deposed Dr. Barax in February 2015. Dr. Barax

testified during this deposition that he spoke with Dr. Conaboy, explained to

him that the CT scan showed a previously undocumented abdominal aortic

aneurysm, but because he could not visualize the aneurysm very well, he

could not confirm that it was not bleeding or rupturing.

      Based on Dr. Barax’s deposition testimony, Reibenstein initiated a

separate action against the Conaboy Defendants in March 2016, asserting

both wrongful death and survival causes of action. See Complaint, 6/03/16.

The trial court consolidated the two cases.

      The Conaboy Defendants ultimately sought summary judgment citing

the general two-year statute of limitations for personal injury actions, and

arguing that the discovery rule did not apply here. The trial court initially

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denied the motion, concluding that there were genuine issues of material fact.

On reconsideration, however, the court reversed course and granted summary

judgment because it found “no evidence of affirmative misrepresentation or

fraudulent concealment of the cause of death,” and granted summary

judgment in favor of the Conaboy Defendants. Trial Ct. Op., at 4. This timely

appeal followed.

      Reibenstein raises one issue on appeal:

      I.    Did the trial court err in granting summary judgment in
            favor of defendants, Patrick D. Conaboy, M.D. and Cognetti
            & Conaboy Family Practice, P.C., on the ground that,
            pursuant to 40 Pa.C.S.A[.] § 1303.513(d) of the [MCARE]
            Act, the statute of limitations governing [Reibenstein’s]
            wrongful death claim against [Dr. Conaboy] could not be
            equitably tolled because decedent’s medical cause of death
            was correctly identified on decedent’s death certificate?

Reibenstein’s Br. at 4 (unnecessary capitalization omitted).

      We review the grant of summary judgment for errors of law and abuse

of discretion. See In re Risperdal Litig., 223 A.3d 633, 639 (Pa. 2019).

      [S]ummary judgment is appropriate only in those cases where the
      record clearly demonstrates that there is no genuine issue of
      material fact and that the moving party is entitled to judgment as
      a matter of law. The trial court must take all facts of record and
      reasonable inferences therefrom in a light most favorable to the
      non-moving party. In so doing, the trial court must resolve all
      doubts as to the existence of a genuine issue of material fact
      against the moving party, and, thus, may only grant summary
      judgment where the right to such judgment is clear and free from
      all doubt. Because the issue here, namely whether there are
      genuine issues of material fact, is a question of law, our standard
      of review is de novo and our scope of review is plenary.

Id. (citations and quotation marks omitted).



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      The statutory interpretation of the equitable tolling provision in

subsection 1303.513(d) of MCARE presents a question of law. Thus, our

standard of review is de novo and our scope of review is plenary. See Bowling

v. Office of Open Records, 75 A.3d 453, 466 (Pa. 2013).

      When interpreting a statute, we are guided by the Statutory

Construction Act, which recognizes that our primary goal is “to ascertain and

effectuate the intention of the General Assembly.” 1 Pa.C.S.A. § 1921(a). To

do so, we first consider the plain meaning of the statute’s language, which, if

it is unambiguous, we must follow. See 1 Pa.C.S.A. § 1921(b). A statutory

provision is ambiguous if it is reasonably susceptible to more than one

interpretation. Burke ex rel. Burke v. Indep. Blue Cross, 103 A.3d 1267,

1273 (Pa. 2014). In determining if a provision is ambiguous, we construe its

words and phrases “according to rules of grammar and according to their

common and approved usage.” 1 Pa.C.S.A. § 1903(a).

      Hence, “if a term is clear and unambiguous, we are prohibited from

assigning a meaning to that term that differs from its common everyday usage

for the purpose of effectuating the legislature’s intent.” Commonwealth v.

Jackson, 111 A.3d 1187, 1189 (Pa.Super. 2015) (citation omitted). If we

conclude that the statutory provision at issue is ambiguous, we then apply the

Statutory Construction Act’s instructions “to ascertain and effectuate” the

General Assembly’s intent. See A Special Touch v. Com. Dep’t of Labor &

Indus., No. 30 MAP 2019, 2020 WL 1932622, at *10 (Pa. Apr. 22, 2020).




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      Section 1303.513 of MCARE establishes the statutes of repose and

statutes of limitations for medical professional liability claims. Subsection

1303.513(d) includes the tolling provision at issue here:

      (d) Death or survival actions.—If the claim is brought under
      42 Pa.C.S. § 8301 (relating to 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(d).

      Reibenstein argues that Dr. Barax’s concealment of his communications

with Dr. Conaboy concerning Mrs. Whitman’s aneurysm is directly related to

the cause of Mrs. Whitman’s death, and, therefore, based on subsection

513(d), the two-year statute of limitations should have been equitably tolled.

See Reibenstein’s Br. at 18-20. Reibenstein notes that MCARE does not define

“cause of death” or explain how a defendant must conceal the cause of death

for equitable tolling to apply. She suggests, based on the legislative intent

behind the statute, that the phrase “affirmative misrepresentation or

fraudulent concealment of the cause of death” should not be limited to a

defendant’s failing to record the correct cause of death on a death certificate.

Rather, in her view, it should also encompass those acts that were part of the

chain of causation leading to the patient’s death. See id. at 15-16. She argues

that the trial court’s interpretation of subsection 1303.513(d) is overly

restrictive and does not effectuate the intent of either subsection 1303.513(d)

or MCARE as a whole.




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     In response, Dr. Conaboy asserts that the plain language of subsection

1303.513(d) is not ambiguous. Therefore, he claims that because Mrs.

Whitman died of a ruptured abdominal aortic aneurysm, and because that is

recorded as the cause of death on her death certificate, the statute of

limitations may not be tolled. See Conaboy Br. at 10-11.

     Our review discloses that “cause of death” is not defined in this section

or any other section of MCARE. Nor have we found any controlling authority

directly addressing the pertinent question here: whether “cause of death” as

used in subsection 1303.513(d) means the immediate, medical cause of

death, such as is ordinarily listed on the decedent’s death certificate, or

includes conduct leading to the decedent’s death but that is not the

immediate, medical cause of the death.

     We conclude that both interpretations are reasonable and that

subsection 1303.513(d) is therefore ambiguous in this regard. We therefore

turn to the Statutory Construction Act to resolve the ambiguity. That Act

provides a non-exclusive list of guideposts for identifying the General

Assembly’s intent when construing an ambiguous statutory provision:

     When the words of the statute are not explicit, the intention of the
     General Assembly may be ascertained by considering, among
     other matters:

           (1) The occasion and necessity for the statute.

           (2) The circumstances under which it was enacted.

           (3) The mischief to be remedied.

           (4) The object to be attained.


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            (5) The former law, if any, including other statutes
            upon the same or similar subjects.

            (6) The consequences of a particular interpretation.

            (7) The contemporaneous legislative history.

            (8) Legislative and administrative interpretations of
            such statute.

1 Pa.C.S.A. § 1921(c).

      Here, the stated purpose of MCARE is to ensure, inter alia, that high

quality health care is available in the Commonwealth and provide a person

who has sustained injury as a result of medical negligence by a healthcare

provider with fair compensation, while controlling the costs of medical

malpractice insurance rates. See 40 P.S. § 1303.102. Subsection 1303.513(d)

of MCARE is a statute of limitations for medical professional liability wrongful

death and survival action. See Dubose, 173 A.3d at 647.

      Significantly, in drafting this statute of limitations, the General Assembly

included a provision to allow for equitable tolling of the two-year period in

cases where there has been an “affirmative misrepresentation or fraudulent

concealment of the cause of death.” 40 P.S. § 1303.513(d). Clearly, the

General Assembly included the equitable tolling provision to protect patients

who have pursued their rights, and despite this, “extraordinary circumstance

prevents [them] from bringing a timely action.” Dubose, 173 at 645 (citation

omitted). In such extraordinary circumstances, “the restriction imposed by the

statute of limitations does not further the statute’s purpose.” Id. (citation

omitted).



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         The General Assembly’s inclusion of such an exception recognizes that

wrongful death and survival actions may involve situations where the patient’s

interest in fair compensation outweighs the interest in limiting medical

malpractice insurance costs. It is in furtherance of the stated purpose of fair

compensation that we interpret “affirmative misrepresentation or fraudulent

concealment of the cause of death” to encompass those acts which caused the

patient to die. Where a medical practitioner hides an action that was directly

related to the cause of the patient’s death, the Commonwealth’s interest in

redress outweighs the interest in control of medical malpractice insurance

costs.

         Accordingly, we hold that “affirmative misrepresentation or fraudulent

concealment of the cause of death” means affirmative misrepresentations

about or fraudulent concealment of conduct the plaintiff alleges led to the

decedent’s death.

         Having so concluded, we turn again to the situation presented in the

instant case. In its order granting the Conaboy Defendants’ motion for

summary judgment, the trial court held that because Mrs. Whitman died of an

abdominal aortic aneurysm, and the death certificate lists aortic aneurysm as

the cause of death, Reibenstein was not entitled to equitable tolling of the

statute of limitations. Based on our interpretation of subsection 513(d), we

are constrained to conclude that the trial court erred in concluding that

Reibenstein’s claims were barred by the statute of limitation, and so erred in

granting summary judgment in favor of Dr. Conaboy.

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       Having found that the court erred, we do not reach Reibenstein’s claim

that there was a fraudulent concealment or affirmative misrepresentation of

an act by Dr. Conaboy related to Mrs. Whitman’s death. We leave that issue

to the trial court on remand. Therefore, we vacate the order of the trial court

that granted summary judgment in favor of Dr. Conaboy, and we remand to

the trial court.1

       Order vacated, case remanded, jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/30/2020




____________________________________________


1 On November 7, 2019, the Conaboy Defendants filed an application to quash
this appeal. They point to a “Full and Final Release” entered after the trial
court granted summary judgment in their favor. They argue that the language
of the release had the effect of discharging Reibenstein’s claims against them,
and as a result, “any appeal is a nullity and should be quashed.” Application
to Quash at 5. They cite no authority for this proposition, and the subsequent
settlement and release does not affect our jurisdiction. Accordingly, we deny
the application to quash.
      They alternatively ask us to remand to the trial court so that court may
determine whether the settlement bars this appeal. We deny this request as
well, without prejudice to the Conaboy Defendants’ ability to argue on remand
that the release discharged Reibenstein’s claims against them.

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