J-A01030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SCOTT R. DEBONIS, ESQUIRE, AS                   IN THE SUPERIOR COURT OF
EXECUTOR OF THE ESTATE OF FAYE M.                     PENNSYLVANIA
DAVIS, DECEASED, AND MILDRED
HARRIS,

                         Appellants

                    v.

GREGORY A. GEORGE, M.D., GREGORY
A. GEORGE, M.D., INC., JAMES
EZI-ASHI, M.D. AND SAGAR V.
VALLABH, M.D., P.C.

                         Appellees                   No. 907 WDA 2016


              Appeal from the Order Entered January 15, 2015
              In the Court of Common Pleas of Mercer County
                      Civil Division at No(s): 2011-156


BEFORE: BOWES, OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                                FILED MAY 26, 2017

      Appellants, Scott R. Debonis, Esq., executor of the estate of Faye M.

Davis (Decedent), and Mildred Harris, Decedent’s sister, appeal from the

order entered on January 15, 2015 that granted summary judgment in favor

of Appellees, Gregory A. George, M.D., Gregory A. George, M.D., Inc., James

Ezi-Ashi, M.D., and Sagar V. Vallabh, M.D., P.C. (collectively Appellees). We

affirm.

      The trial court summarized the facts in this case as follows:

      This case arises from [Decedent’s death, which occurred on]
      January 2, 2007, as a result of a ruptured abdominal aortic
      aneurysm. Decedent is survived by her sister, [] Mildred Harris.


*Retired Senior Judge assigned to the Superior Court.
J-A01030-17


     []Scott R. Debonis[,     Esq.]    was   appointed   [e]xecutor   of
     Decedent's [e]state.

     On December 12, 2003, Decedent visited Dr. Ezi-Ashi[, a
     licensed    physician  who      specializes  in   the    field  of
     gastroenterology,] for abdominal complaints.         Dr. Ezi-Ashi
     performed a physical examination that revealed "a pulsating
     mass about the region of the mid-abdomen, possibly
     [Decedent’s] abdominal aorta, possibly an aneurysm."           Dr.
     Ezi-Ashi noted that he "would like to schedule patient for a
     [computer tomography (CT)] scan of the abdomen to [rule out
     or rule in] abdominal aneurysm[.]" A copy of this record was
     sent to Decedent's primary care physician, Dr. George[, a
     licensed physician specializing in family medicine,] on December
     15, 2003.

     On December 19, 2003, Decedent underwent the CT scan that
     Dr. Ezi-Ashi ordered. The CT scan revealed a "5.1 cm abdominal
     aneurysm." Dr. Ezi-Ashi then performed an upper endoscopy and
     a colonoscopy on Decedent, and sent the biopsy results to Dr.
     George. [Appellants] allege[d] that neither Dr. Ezi-Ashi nor Dr.
     George informed Decedent of the biopsy results.

     On June 14, 2005, Decedent visited Dr. George for a follow-up
     appointment regarding her hypertension. Decedent saw Dr.
     George several more times until July 7, 2006. In October 2006,
     Decedent visited Dr. Ezi-Ashi twice for abdominal complaints.
     After her visits, Dr. Ezi-Ashi sent to Dr. George a report wherein
     he noted that a CT scan was "normal," despite the CT scan
     actually showing the presence of an abdominal aortic aneurysm.
     [Appellants] allege, again, that [Appellees never] advised
     Decedent of her abdominal aortic aneurysm nor the need to
     progressively manage her hypertension to prevent growth or
     rupture of the aneurysm.

     Decedent went to Sharon Regional Hospital on January 1, 2007
     complaining of back pain on her right side that "radiate[d] to the
     right side of her abdomen." The [h]ospital diagnosed Decedent
     with a compression fracture and discharged her with instructions
     to follow-up with Dr. George. The following morning, on January
     2, 2007, Decedent met with Dr. George[,] who again failed to
     advise her of the aneurysm or its possible association with back
     pain.



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J-A01030-17


     Later that afternoon, at 12:35 p.m., Decedent sought treatment
     at Sharon Regional Hospital. After looking at the previous day's
     imaging, a radiologist determined that "a large aortic aneurysm
     is present." Shortly after the diagnosis, Decedent's aneurysm
     ruptured in the presence of her sister. At 3:00 p.m. a code was
     called, resuscitation efforts failed, and ended at 4:05 p.m.
     Decedent passed away at 4:05 p.m. on January 2, 2007.

     [Appellants initiated legal action by filing a complaint on
     December 3, 2008 alleging professional negligence against
     Sharon Regional Health System, Emergency Care Consultants,
     Regional Imaging Associates, Kathy McNutt, and Steven
     Muehlenbein. After     discovery commenced, Appellants served
     various records requests upon] Dr. George and Dr. Ezi-Ashi, with
     which both physicians complied. [Appellants] made two records
     requests of Dr. George prior to the expiration of the statute of
     limitations. On September 11, 2008, [Appellants] requested
     medical records "from 01/01/06 through 02/01/07," which Dr.
     George sent within the month.        On November 11, 2008,
     [Appellants] requested an itemized billing statement for services
     rendered on January 2, 2007, which Dr. George sent on
     November 12, 2008.

     All other records requests of Dr. George and Dr. Ezi-Ashi were
     made after the expiration of the statute of limitations. On
     September 28, 2010, [Appellants] requested from Dr. George
     medical records for a CT scan performed sometime before
     October 2006. Dr. George made it known to [Appellants] that
     he had no such records on or around October 1, 2010.
     [Appellants] finally requested Decedent's full medical records
     from Dr. George on October 19, 2010. Originally, Dr. George's
     office manager mistakenly informed [Appellants] that the
     records had been destroyed. At Dr. George's deposition, it was
     discovered that the records were in the possession of his
     attorney, that the office manager was unaware of this and
     mistakenly assumed, and communicated to [Appellants], that
     the records were destroyed[. T]he records were later given to
     [Appellants] on February 5, 2013, pursuant to a [r]equest for
     [a]dmission.

     When [Appellants] learned that Dr. George did not have
     possession of Decedent's medical records, they requested
     Decedent's full medical records from Dr. Ezi-Ashi on October 19,
     2010. Dr. Ezi-Ashi failed to reply until [Appellants] made a

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J-A01030-17


       second request for Decedent's full medical records on November
       9, 2010.     On January 12, 2011, Dr. Ezi-Ashi [produced
       Decedent's full medical records to Appellants].

       [Appellants commenced a separate action against Appellees by
       filing a praecipe for writ of summons on January 28, 2011.
       Thereafter, Appellants] filed their complaint on February 18,
       2011 alleging, inter alia, medical negligence survival action,
       medical negligence wrongful death action, and negligent
       infliction of emotional distress claims against [] Dr. George and
       Dr. Ezi-Ashi.    [Appellants claimed that Dr. George and Dr.
       Ezi-Ashi failed to properly notify, follow, and treat Decedent for
       an abdominal aortic aneurysm from December 12, 2003 until her
       death on January 2, 2007.] Dr. George filed a [m]otion for
       [j]udgment on the [p]leadings on June 22, 2011 [and] Dr.
       Ezi-Ashi filed a [m]otion for [j]udgment on the [p]leadings on
       July 13, 2011. Both motions asserted that [Appellants’] claims
       were barred by the statute of limitations. [The trial court denied
       both motions] on September 30, 2011. On September 11,
       2014[] Dr. George filed a [m]otion for [s]ummary [j]udgment,
       and on October 17, 2014 [] Dr. Ezi-Ashi filed a [m]otion for
       [s]ummary [j]udgment.         Both motions argued, again, that
       [Appellants’] claims [were] barred by the statute of limitations.
       [On December 17, 2014, the trial court entered its order
       granting summary judgment in favor of Dr. George and Dr.
       Ezi-Ashi and against Appellants.]

Trial Court Opinion, 12/17/14, at 2-5 (footnotes omitted).1

       Appellant’s raise the following issues on appeal:
____________________________________________


1
  Although the trial court partially consolidated Appellants’ complaint against
Dr. George and Dr. Ezi-Ashi with Appellants’ complaint against Sharon
Regional Health System, Emergency Care Consultants, Regional Imaging
Associates, Kathy McNutt, and Steven Muehlenbein, the subsequent order
granting summary judgment in favor of Dr. George and Dr. Ezi-Ashi
constituted a final, appealable order. See Malanchuk v. Tsimura, 137
A.3d 1283 (Pa. 2016) (order granting summary judgment in one of two
cases consolidated for purposes of discovery and trial is appealable
immediately as a matter of right where complete consolidation had not
occurred). The trial court and the parties have complied with Pa.R.A.P.
1925(b) and the matter is now ripe for consideration on appeal.



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J-A01030-17


      Whether the [t]rial [c]ourt erred in concluding, as a matter of
      law, that [Appellants’] cause of action was barred by the
      applicable statute of limitations/statute of repose[?]

      Whether the [t]rial [c]ourt erred in interpreting the term “cause
      of death” as used in 40 P.S. § 1303.513 to mean “immediate
      cause of death” and not also “underlying cause of death” and
      therefore finding Appellees did not fraudulently conceal
      [Decedent’s] cause of death so as to toll the statute of
      limitations[?]

      Whether there are genuine issues of material fact regarding
      Appellants’ “reasonable diligence” in uncovering [Decedent’s]
      cause of death[?]

Appellants’ Brief at 9.

      Appellants challenge an order that entered summary judgment in favor

of Dr. George and Dr. Ezi-Ashi. The principles we apply in reviewing such an

order are well established:

      Our scope of review of a trial court's order granting or denying
      summary judgment is plenary, and our standard of review is
      clear: the trial court's order will be reversed only where it is
      established that the court committed an error of law or abused
      its discretion.

      The entry of summary judgment is proper whenever no genuine
      issue of any material fact exists as to a necessary element of the
      cause of action. The moving party's right to summary judgment
      must be clear and free from doubt. We examine the record,
      which consists of all pleadings, as well as any depositions,
      answers to interrogatories, admissions, affidavits, and expert
      reports, in a light most favorable to the non-moving party, and
      we resolve all doubts as to the existence of a genuine issue of
      material fact against the moving party.

Krapf v. St. Luke’s Hosp., 4 A.3d 642, 649 (Pa. Super. 2010) (internal

citations omitted), appeal denied, 34 A.3d 831 (Pa. 2011).




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J-A01030-17


       Under the Medical Care Availability and Reduction of Error Act (MCARE

Act), “wrongful death claims under 42 Pa.C.S.A. § 8301 and survival claims

under 42 Pa.C.S.A. § 8302 must be commenced within two years after the

death, unless there is fraudulent misrepresentation or concealment as to the

cause of death.” Matharu v. Muir, 86 A.3d 250, 263 (Pa. Super. 2014) (en

banc); see also 40 P.S. § 1303.513(d).2 In Matharu, this Court said that

the period within which a claim must be filed under § 1303.513(d) begins to

run when the cause of action accrues, which is the date of death.          See

Matharu, 86 A.3d at 263 (“In other words, the two-year time period under

[§ 1303.513(d)] does not begin to run until the injury (death) occurs, unless

there is fraud relating to the cause of death, in which case the two-year

period is tolled until the plaintiff knows or reasonably should have known of

the cause of death.”), citing Krapf 4 A.3d at 649.      In the present case,

Decedent died on January 2, 2007 but Appellants did not commence their

action against Appellees until January 28, 2011.       Hence, the trial court
____________________________________________


2
  Section 1303.513(d) provides a two-year limitations period for medical
professional liability claims asserted in the context of a wrongful death or
survival action. It states:

       (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).




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J-A01030-17


determined that the limitations period expired before Appellants initiated

suit.

        Appellants’ position is that the trial court erred in concluding that the

statute of limitations barred their wrongful death and survival claims.3

Specifically, Appellants assert that the term “cause of death,” as used in

§ 1303.513(d), embraces the concept of an “underlying cause of death”

which includes not just the disease, injury, or complication that directly

precedes death but also a disease or injury that ignites a sequence of events

that produces death. See Appellants’ Brief at 27. Relying on this expanded

conception of the term “cause of death,” Appellants argue that the failures of

Dr. Ezi-Ashi and Dr. George to inform, follow, and refer Decedent for

treatment of her abdominal aortic aneurism from December 2003 until

January 2, 2007 constituted fraudulent concealment of Decedent’s cause of

death which tolled the two-year limitations period in this case. Appellants

add that Appellees’ production and dissemination of documents that

characterized Decedent’s 2003 test results as “normal” served as “continued

misrepresentation” of Decedent’s condition, which further tolled the statute

of limitations.      Appellants’ contentions are inconsistent with relevant

Pennsylvania case law.


____________________________________________


3
  The issues raised in Appellants’ claims are interrelated and we shall
address them in a single discussion.



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J-A01030-17


       In Krapf, this Court considered the applicability of the fraudulent

concealment doctrine in the context of wrongful death and survival actions.

In that case, the estates of five patients filed wrongful death and survival

actions against a hospital after a former nurse confessed to killing the

patients.    The hospital previously issued death certificates to the estates

indicating causes of death consistent with the progression of the respective

diseases for which the patients had received treatment.            Thereafter, the

nurse confessed to killing the patients.         By the time the estates instituted

claims against the hospital, however, the two-year limitations period had

expired. On appeal, we affirmed the trial court’s refusal to enter summary

judgment in the hospital’s favor.4             We observed that the doctrine of

fraudulent concealment applied when a defendant, who owes a duty to

speak, commits an affirmative, independent act of concealment upon which

a plaintiff justifiably relies. Krapf, 4 A.3d at 650, citing Lange v. Burd, 800

A.2d 336, 339 (Pa. Super. 2002). Applying these principles, we concluded

that the trial court correctly determined that the hospital fraudulently

concealed the patients’ causes of death by issuing death certificates

indicating natural progression of underlying diseases, which induced the

detrimental reliance of the estates. Id. at 650.


____________________________________________


4
  The appeal in Krapf came before us by way of the hospital’s petition for
review under Pa.R.A.P. 1501 et seq.



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J-A01030-17


      We agree with the trial court’s determination that the actions of Dr.

Ezi-Ashi and Dr. George before January 2, 2007 did not constitute fraudulent

concealment of Decedent’s cause of death.           Under settled case law,

Appellants’ wrongful death and survival causes of action accrued on January

2, 2007, the date on which Decedent died, and only fraudulent concealment

of her cause of her death tolls the limitations period. See Matharu, 86 A.3d

at 263. Since Appellees could not conceal the cause of a death that had not

yet occurred, the trial court did not err in concluding that their actions prior

to January 2, 2007 were irrelevant to application of the doctrine of

fraudulent concealment.

      We also reject Appellants’ claim that alleged misstatements included

within Decedent’s medical records prepared and produced by Appellees are

akin to the inaccurate death certificates issued by the hospital in Krapf and,

therefore, constitute fraudulent misrepresentation of the cause of Decedent’s

death. In disposing of this contention, the trial court reasoned as follows:

      [Appellants] further contend that [Decedent’s medical] records
      contained a false statement similar to the incorrect statements
      at issue in Krapf. In Krapf, the decedent-victims were killed by
      a nurse administering harmful doses of certain medications.
      Krapf, supra, at 645-658. Prior to the nurse’s confession that
      he killed the patients, the hospital issued death certificates to
      the decedent-victims’ estates “indicating causes of death
      consistent with the progression of the respective diseases for
      which the patients had been receiving treatment.” Id. at 648.
      [This Court] relied on the trial court’s reasoning that the
      incorrect statement, albeit unintentional, prevented the plaintiffs
      from knowing the decedent-victims’ true cause of death. Id. at
      651.


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J-A01030-17


      The statement at issue here is that a CT scan was noted as being
      “normal” when it actually showed the presence of an abdominal
      aortic aneurysm.      Unlike the plaintiffs in Krapf, however,
      [Appellants] here knew the cause of death – a ruptured
      abdominal aortic aneurysm – on the date on which Decedent
      died. This cause of death has not changed since January 2,
      2007; nor have any of the records recovered during discovery
      indicated a different cause of death.          Additionally, since
      [Appellants] instituted this suit, on December 3, 2008, they have
      [confirmed] that the cause of death was a ruptured aortic
      aneurysm. Because [Appellants] knew the cause of death on
      January 2, 2007, the misstatement in [Decedent’s medical
      records] does not toll the statute of limitations. Rather, it put
      [Appellants] on inquiry notice to determine what the CT scan
      showed and why there was a misstatement.

Trial Court Opinion, 12/17/14, at 12. Our review of the certified record and

pertinent case law leads us to conclude that the trial court adequately and

accurately addressed this issue. Hence, we reject Appellants’ claim for the

reasons set forth by the trial court.

      In sum, we conclude that Appellees did not fraudulently conceal or

misrepresent the cause of Decedent’s death and that the two-year

limitations period barred Appellants’ wrongful death and survival claims

against Appellees. In light of these determinations, we need not pass upon

Appellants’ third issue, which asks whether Appellants exercised reasonable

diligence in discovering Appellees’ possible role in bringing about Decedent’s

death.   Accordingly, we affirm the entry of summary judgment in favor of

Appellees.

      Order affirmed.




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J-A01030-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2017




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