When Must a Medical Malpractice Claim be Brought by in Pennsylvania?

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Many people are aware that most states, including Pennsylvania, set a time limit on when your medical malpractice action must be brought by. This is known as a statute of limitations. A statute of limitations encourages the timely settling of claims which increases certainty regarding liability for businesses and individuals. However, a statute of limitations is not the only legal gatekeeping device.  Pennsylvania’s legislature has also enacted a statute of repose that can foreclose your right to an action for recovery due to medical malpractice, personal injury, or other reasons. However, while the effect of a statute of repose can be substantially similar to that of a statute of limitations, it functions in a different manner. This post will explore how a statute of repose and a statute of limitations differ and how they interact.

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What is the Statute of Limitations for Medical Malpractice in Pennsylvania?

In Pennsylvania, a medical malpractice suit must be filed within 2 years after the cause of action has accrued. 42 Pa. C.S. § 5524(2). This is the general rule for Pennsylvania’s statute of limitations. However, emancipated minors are typically exempt from this requirement as their statute of limitations period is tolled, or ineffective, until their 18th birthday. W. Penn Allegheny Health Sys. v. Medical Care Availability & Reduction of Error Fund, 11 A.3d 598, 602 (Pa. Commw. Ct. 2010) (citing, 42 Pa. C.S. § 5533(b)(1)). Additional expectations to the statute of limitations can apply, however, these expectations are typically based on the Discovery Rule.

How is the Limit for a Statute of Limitation Calculated?

In Pennsylvania, an injured individual’s cause of action comes into existence at the time he or she could first have brought that action successfully. Kapil v. Association of Pa. State College and Univ. Faculties, 504 Pa. 92, 470 A.2d 482, 485 (1983). This is known as the discovery rule. What this means is that the statute of limitation does not run until the potential plaintiff knows, or has reason to know about, his or her injury or condition.

Therefore, the statute of limitations can be said to begin to run at that exact moment where the injury and cause of action become apparent. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80 (1983); Ayers v. Morgan, 397 Pa. 282 (1959). If an action has accrued and could be brought successfully, but the potential plaintiff has failed to bring it within the statutorily defined time frame, the right to action is lost and the party is barred from bringing a claim. Pocono International, 468 A.2d at 471.

What Limitations Does the Statute of Repose Place on Medical Malpractice Actions in Pennsylvania?

Pennsylvania’s statute of repose is found in the legislation that authorized and created the Medical Care Availability & Reduction of Error Fund (MCARE). The statute reads: “General rule.–Except as provided in subsection (b) or(c), 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.” 40 P.S. § 1303.513. What this provision does is, in most cases, it bars any commencement of a lawsuit if more than 7 years have elapsed since the date of the alleged malpractice. In a sense, the statute of repose limits the application of the discovery rule and extends a firm time limitation of 7 years.  This rule can be particularly harsh because it can apply even when the injury is not discovered until later regardless of the existence of the discovery rule.

How does the Statue of Limitation Differ from the Statute of Repose

Although both statutes can have the same impact of barring your medical malpractice claim, this effect is accomplished through differing legal justifications. A statute of limitations is a procedural device that limits the time period where a viable cause of action that has already accrued can be brought. Therefore, a statute of limitation can bar you from bringing a claim that you know has accrued or that you should know has accrued. In contrast, a statue of repose sets the time period in which an action may accrue. Thus, a statute of repose can foreclose the right to bring an action despite the fact that it may accrue at a later time. Losing the right to a cause of action that you could not have conceivably been aware of is a much harsher result than losing a right to action that you should have been aware of. Thus, exceptions have been carved out by the Pennsylvania legislature to limit the harshness of this doctrine.

When Does the Statute of Repose Not Apply?

The first instance where the statute of repose does not apply is for foreign objects that were mistakenly left behind in the patient’s body. 40 P.S. § 1303.513(b). This exception would apply in situations where a surgical tool, like surgical scissors or sponges, is accidentally left behind in the patient’s body. The statute of repose would not apply in a situation like this. Furthermore, it is likely that the statute of limitations would be tolled as per the discovery rule due to the concealed foreign object.

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Similarly to the statute of limitations, there is also an exception for minors in regards to the statute of repose. 40 P.S. § 1303.513(c). This section reads, “No cause of action asserting a medical professional liability claim may be commenced by or on behalf of a minor after seven years from the date of the alleged tort or breach of contract or after the minor attains the age of 20 years, whichever is later.” Id. However, for the purposes of this chapter,  a minor is defined as, “an individual who has not yet attained the age of 18 years.” 40 P.S. § 1303.513(f). Thus, for this exception to apply, the alleged instance of medical malpractice must occur prior to the potential plaintiff’s 18th birthday. Ignoring the statute of limitations entirely for a moment, if the alleged malpractice occurred prior to the individual reaching age 18, the statute of repose would not bar an action until the later of the potential plaintiff’s 20th birthday or seven years since the injury has elapsed. So, if a 17-year-old were to allegedly suffer an injury due to medical malpractice, he or she would have 7 years to bring the action since the elapsing of 7 years would occur after the individuals 20th birthday. In contrast, if a 10-year-old child was injured by alleged medical malpractice, he or she would have until their 20th birthday to bring a lawsuit.

The final exception to the statute of repose’s 7-year limit is for actions brought under Pennsylvania’s wrongful death or survival action statutes. For actions of these types, they must generally be brought within 2 years of the individual’s death. However, where there is an affirmative misrepresentation or fraudulent concealment, this 2-year limit does not apply.

Contact The Reiff Law Firm if you have a personal injury, medical malpractice or failure to diagnose lawsuit today.

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