Yanakos, C., Aplts. v. UPMC

[J-83-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
CHRISTOPHER G. YANAKOS, SUSAN : No. 10 WAP 2018
KAY YANAKOS AND WILLIAM RONALD :
YANAKOS, HER HUSBAND, : Appeal from the Order of the Superior
: Court entered July 26, 2017 at No.
Appellants : 1331 WDA 2016, affirming the Order
: of the Court of Common Pleas of
: Allegheny County entered August 29,
v. : 2016 at No. GD-15-022333.
:
: ARGUED: October 24, 2018
UPMC, UNIVERSITY OF PITTSBURGH :
PHYSICIANS, AMADEO MARCOS, M.D. :
AND THOMAS SHAW-STIFFEL, M.D., :
:
Appellees :
DISSENTING OPINION
JUSTICE WECHT DECIDED: OCTOBER 31, 2019
A majority of the Court concludes that the General Assembly’s application of a
seven-year statute of repose to most medical professional liability claims violates Article
I, Section 11 of the Pennsylvania Constitution, which provides that every person who
suffers an injury “shall have remedy by due course of law[.]”1 I am unable to agree. Both
the lead Opinion and the Concurring and Dissenting Opinion flout the General Assembly’s
policymaking authority by constitutionalizing and imposing a standard that neither the text
nor the history of our Constitution supports. Because existing jurisprudence supplies a
different standard, and because it is not this Court’s role to upend duly enacted legislation
1 PA. CONST. art. 1, § 11.
simply because we might sometimes deem it imperfect or unwise, I must respectfully
dissent.
Article I, Section 11, which is part of our Constitution’s Declaration of Rights and
has remained essentially unchanged since its introduction in the Constitution of 1790,
provides that:
All courts shall be open; and every man for an injury done him in his lands,
goods, person or reputation shall have remedy by due course of law, and
right and justice administered without sale, denial or delay. Suits may be
brought against the Commonwealth in such manner, in such courts and in
such cases as the Legislature may by law direct.
PA. CONST. art. 1, § 11.
At issue is the right to a “remedy by due course of law” language. This wording is
found in the constitutions of at least thirty-nine states, but has no counterpart in the federal
constitution. Ieropoli v. AC&S Corp., 842 A.2d 919, 925 (Pa. 2004). Such provisions,
commonly referred to as remedies clauses, derive from Magna Carta and Sir Edward
Coke’s seventeenth century commentary on the Great Charter, which influenced the
drafters of many early American state constitutions.2 JENNIFER FRIESEN, STATE
CONSTITUTIONAL LAW : LITIGATING INDIVIDUAL RIGHTS, CLAIMS, AND DEFENSES § 6-2(a) (3d
ed. 2000).
Some state supreme courts have concluded that various statutes of limitations and
statutes of repose violate their constitutions’ Remedies Clauses.3 Yet considerable
2 Magna Carta included the following promise from King John aimed at curtailing the
selling of court writs: “To no one will we sell, to no one will we refuse or delay, right or
justice.” In his commentary on this article, Lord Coke wrote that “every Subject of this
Realm, for injury done to him in [goods, lands, or person], . . . may take his remedy by the
course of the Law.” JENNIFER FRIESEN, STATE CONSTITUTIONAL LAW : LITIGATING INDIVIDUAL
RIGHTS, CLAIMS, AND DEFENSES § 6-2(a) (3d ed. 2000).
3 Reynolds v. Porter, 760 P.2d 816 (Okla. 1988) (invalidating a three-year limitations
period without discovery rule in medical malpractice suits); Hanson v. Williams Cty., 389
N.W.2d 319 (N.D. 1986) (invalidating ten-year date-of-use statute of repose for products-
[J-83-2018] - 2
disagreement persists among state courts over the correct interpretation of Open Courts
provisions and Remedies Clauses. For every decision striking down a statutory restriction
on a common law cause of action, one could find another decision (likely in a state with
an identical Open Courts provision) upholding a similar restriction. See Hon. Thomas R.
Phillips, The Constitutional Right to A Remedy, 78 N.Y.U. L. REV. 1309, 1314-15 (2003)
(“In each section of the country, whether the constitution is old or new, the judges elected
or appointed, or the political culture traditional or progressive, some state courts defer
unhesitatingly to legislative choices, while others routinely strike down any statutes that
impede access to the courts or impair recovery under traditional theories.”).
To complicate matters further, the ordinary challenges of constitutional
interpretation are magnified because the historical record does not reveal what led the
framers of early state constitutions to embrace Open Courts provisions. 4 Those few
documents that survive from Pennsylvania’s 1790 constitutional convention do not
describe any debates about the Open Courts provision generally, nor the Remedies
Clause specifically. So it is not clear what the drafters meant when they guaranteed a
remedy “by due course of law” for every injury. Perhaps they understood “due course of
law” to mean “the law of the land,” in which case Article I, Section 11 merely guarantees
liability claims); Strahler v. St. Luke’s Hosp., 706 S.W.2d 7 (Mo. 1986) (finding statute of
limitations in medical malpractice case unconstitutional as applied to minors); Kenyon v.
Hammer, 688 P.2d 961 (Ariz. 1984) (invalidating absolute limitations bar on medical
malpractice claims three years from date of injury); Jackson v. Mannesmann Demag
Corp., 435 So.2d 725 (Ala. 1983) (invalidating a seven-year statute of repose for claims
against architects, contractors, and builders).
4 See KEN GORMLEY ET AL., THE PENNSYLVANIA CONSTITUTION: A TREATISE ON RIGHTS
AND LIBERTIES, at 470 (2004) (explaining that notes from Pennsylvania’s 1790
constitutional convention do not clarify the thinking behind the Open Courts provision);
Note, Constitutional Guarantees of a Certain Remedy, 49 IOWA L. REV. 1202, 1203-1204
(1964) (“[R]ecords of the constitutional conventions which adopted certain-remedy
clauses are virtually devoid of any clues as to the intentions of the framers.”).
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a right to “whatever remedy the law allows.” See Meech v. Hillhaven West, Inc., 776 P.2d
488, 493 (Mont. 1989) (explaining that Montana’s Open Courts provision is “a section
dealing with the administration of justice,” and is “addressed to securing the right to set
the machinery of the law in motion”); Harrison v. Schrader, 569 S.W.2d 822, 827 (Tenn.
1978) (“The constitutional guaranty providing for open courts and insuring a remedy for
injuries does not guaranty a remedy for every species of injury, but applies only to such
injuries as constitute violations of established law of which the courts can properly take
cognizance.”). Or maybe the drafters intended to constitutionalize then-existing common
law remedies, thus shielding those remedies from legislative modification or abolition
absent a constitutional amendment. We don’t know.
Faced with this lack of authoritative guidance, Pennsylvania courts—along with
many other state courts—have struggled for well over a century to define what, if any,
limits the Remedies Clause imposes on the legislature’s authority to modify or abolish
common law causes of action. Indeed, significant disagreement persists among judges
and scholars as to whether the “by due course of law” language found in most Open
Courts provisions presupposes that the legislature has the authority to decide what
“course of law” is “due” in any given circumstance. Some have questioned why the
promise of a remedy for every “injury” necessarily should preclude the legislature from
defining what constitutes a “legal injury” in the first instance. See Carroll, 437 A.2d at 399
(Larsen, J., dissenting).
Though these substantial difficulties have resulted in divergent interpretations
among and between different courts, the lead Opinion barely mentions them. Instead,
the lead Opinion simply takes for granted that intermediate scrutiny “must apply” given
the right to a remedy’s “historical significance” and its “explicit inclusion in our
constitution.” Lead Opinion at 11. The matter is not so simple. As I explain in more detail
[J-83-2018] - 4
below, the “intermediate scrutiny” standard that the lead Opinion adopts is inconsistent
with our existing Remedies Clause jurisprudence, and derives from neither the text nor
the history of our Constitution.
Although the framers’ intent in drafting Pennsylvania’s original Open Courts
provision is somewhat opaque, the circumstances that precipitated the 1790
constitutional convention are well understood. When Pennsylvania’s first Constitution
was ratified in 1776, “the legislative branch was seen as the people’s servant and
salvation,” while “the executive branch was distrusted.” GORMLEY ET AL., supra, at 471.
The Pennsylvania Constitution of 1776 reflected this underlying political philosophy. It
created a “unitary government in which legislative power, and supervisory power over
both the executive and the judiciary, were concentrated in a single annually elected
Assembly.” Matthew J. Herrington, Popular Sovereignty in Pennsylvania 1776-1791, 67
TEMP. L. REV. 575, 588 (1994). Those limited executive powers that did exist were vested
in an elected Supreme Executive Council, which consisted of twelve members. Id. The
document did not provide for an independent judiciary. Instead, judges were treated as
“creatures of the political branches.” Id.
In the ensuing decades, the citizens of Pennsylvania “became disillusioned with
legislative supremacy” following many well-documented abuses of that power. GORMLEY
ET AL., supra, at 471 (quoting ROSALIND L. BRANNING, A HISTORY OF PENNSYLVANIA
CONSTITUTIONS, REFERENCE MANUAL NO. 3, at 5 (1968)). Throughout this era, the
legislature all too often exceeded its constitutional authority, obstructed legitimate
exercises of executive power, ignored judicial decisions, and disregarded individual
liberties. Id. (citing Gordon S. Wood, Foreword: State Constitution-Making in the
American Revolution, 24 RUTGERS L.J. 911, 922 (1993)). “By the mid-1780s, there was
general agreement that ‘many of the existing ills could be traced to an impotent judiciary,’”
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and that Pennsylvania’s constitutional system lacked essential safeguards on unchecked
legislative power. Id. (quoting BRANNING, supra, at 4).
In 1789, a substantial majority of the legislature agreed that revisions to the
Pennsylvania Constitution were necessary. The product of the ensuing convention—the
Constitution of 1790—reflected a dramatic shift in the structure of our state government.
Unlike its predecessor, this new Constitution vested executive power in a unitary
executive with veto and appointment powers, PA. CONST. of 1790 art. II, created a
bicameral legislature consisting of a house and senate, PA. CONST. of 1790 art. I, provided
for an independent judiciary, PA. CONST. of 1790 art. V, and explicitly prohibited the
legislature from infringing upon any of the individual rights enumerated in the Declaration
of Rights. PA. CONST. of 1790 art. IX, § 26.
Given this historical context surrounding the introduction of the Remedies Clause
in the Constitution of 1790, I am persuaded by the Yanakoses’ argument that Article I,
Section 11 should be understood to impose some outer limit on the General Assembly’s
power to enact legislation that curtails or eliminates a common law cause of action. See
Scarnati v. Wolf, 173 A.3d 1110, 1118 (Pa. 2017) (explaining that, when interpreting a
provision of the Pennsylvania Constitution, we should “consider the circumstances
attending its formation and the construction probably placed upon it by the people”).
While the precept that the Superior Court relied upon below—that “no one has a vested
right in the continued existence of an immutable body of negligence law” 5—is an accurate
statement of the law, this Court has never held that the General Assembly possesses
unlimited power to alter, limit, or abolish common law remedies. See Ieropoli, 842 A.2d
at 925 (remarking that Article I, Section 11 is both an “imperative limitatio[n] on legislative
5 See Freezer Storage, Inc. v. Armstrong Cork Co., 382 A.2d 715, 720 (Pa. 1978)
(internal quotation marks omitted).
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authority” and an “imperative imposition[n] of judicial duty”).6 Indeed, the earliest
decisions on the subject seemed to take for granted that the Remedies Clause to some
extent restricts the General Assembly’s authority to extinguish existing causes of action.
In Central R.R. Co. of N.J. v. Cook, 1 W. N. C. 319 (Pa. 1875), for example, the
Court affirmed a decision striking down a statute that capped the maximum damages
recoverable from a railroad corporation at $3,000. In declining to overturn that decision
five years later, the Court explained that:
we are not convinced that [Central R.R. Co. of N.J.] should be overruled.
Its authority is in conservation of the reserved right to every man, that for an
injury done him in his person, he shall have a remedy by due course of law.
The people have withheld power from the legislature and the courts to
deprive them of that remedy, or to circumscribe it so that a jury can only
give a pitiful fraction of the damage sustained. Nothing less than the full
amount of pecuniary damage which a man suffers from an injury to him in
his lands, goods or person, fills the measure secured to him in the
Declaration of Rights. . . . A limitation of recovery to a sum less than the
actual damage, is palpably in conflict with the right to remedy by the due
course of law.
Thirteenth & Fifteenth St. Passenger Ry. v. Boudrou, 92 Pa. 475, 481-82 (Pa. 1880).7
6 In this regard, I observe that, in the medical malpractice context, some state courts
have struck down laws that limit noneconomic damage awards and laws that require
claims to be screened by medical experts before they can be filed in court. Kentucky v.
Claycomb, 566 S.W.3d 202 (Ky. 2018) (invalidating a statute requiring submission of
certain medical malpractice claims to a review panel before filing a civil action in court);
Lucas v. United States, 757 S.W.2d 687 (Tex. 1988) (invalidating a $500,000 cap on non-
economic damages in medical malpractice cases); State ex rel. Cardinal Glennon Mem’l
Hosp. for Children v. Gaertner, 583 S.W.2d 107 (Mo. 1979) (invalidating a statute
requiring submission of claims to a review board before filing a civil action in court). No
such provision is before us today, and I express no opinion as to the constitutionality of
any such measure.
7 Accord THOMAS R. W HITE, COMMENTARIES ON THE CONSTITUTION OF PENNSYLVANIA
160 (1907) (explaining that the Remedies Clause “stands . . . as a barrier to any action
by the Legislature tending to interfere with a man’s right to sue and recover for an injury
which he has suffered”).
[J-83-2018] - 7
Together with the history of the Remedies Clause and this Court’s precedent, the
text and structure of the Constitution also support the conclusion that laws infringing the
right to a remedy should be subject to some form of heightened judicial scrutiny. The
preamble to Article I of the Constitution makes clear that the rights enumerated in the
Declaration of Rights are “essential principles of liberty and free government” and must
be protected from legislative encroachment. PA. CONST. art. 1, pmbl. Similarly, Article I,
Section 25 reveals the framers’ intent to prohibit all branches of government—including
the legislature—from interfering with the exercise of the rights enumerated in the
Declaration of Rights. PA. CONST. art. 1, § 25 (“To guard against transgressions of the
high powers which we have delegated, we declare that everything in this article is
excepted out of the general powers of government and shall forever remain inviolate.”).
For all of these reasons, I am willing to accept that laws which modify traditional
common law remedies should be subject to some form of heightened judicial scrutiny.8 I
disagree, however, with the lead Opinion’s conclusion that intermediate scrutiny should
apply. Contrary to our precedent,9 the lead Opinion’s chosen standard “encroach[es]
8 See text accompanying n.11. In arguing that “a heightened level of scrutiny”
should apply to laws which alter or abolish traditional common law remedies, the
Yanakoses contend that the lower courts erred in reviewing “the issues in this case under
the rational basis test[.]” Brief for the Yanakoses at 17-18. The Yanakoses ask this Court
instead to apply either intermediate or strict scrutiny, id. at 18-22, but they also cite
approvingly to legal standards adopted by other state courts, which do not perfectly track
the familiar due process standards of rational basis, intermediate scrutiny, and strict
scrutiny. See id. at 46-50 (discussing decisions from the Utah and Alabama supreme
courts).
9 Unable to marshal any precedent to support today’s holding applying intermediate
scrutiny, the lead Opinion invokes James v. Southeastern Pennsylvania Transportation
Authority, 477 A.2d 1302 (Pa. 1984) and Smith v. City of Philadelphia, 516 A.2d 306 (Pa.
1986), neither of which are Remedies Clause decisions. Rather, Smith and James
involved Fourteenth Amendment Equal Protection Clause challenges, which is why it is
unsurprising that those Courts applied intermediate scrutiny. To make matters worse, the
lead Opinion fails to recognize that the portion of the Smith decision that applied “an
intermediate standard of review” did not garner support from a majority of the Court. In
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upon the Legislature’s ability to guide the development of the law” and “place[s] certain
rules of the ‘common law’ and certain non-constitutional decisions of courts above all
change except by constitutional amendment.” Freezer Storage, 382 A.2d at 721. As this
Court has cautioned in prior cases, “societal conditions occasionally require the law to
change in a way that denies a plaintiff a cause of action available in an earlier day[.]” Id.
at 720 (citing Jackman v. Rosenbaum Co., 106 A. 238, 244 (Pa. 1919)). While it is not
often that the legislature decides that a common law theory of recovery has outlived its
useful life, neither is it unprecedented. See, e.g., 23 Pa.C.S. § 1902 (“All causes of action
for breach of contract to marry are abolished.”); 23 Pa.C.S. § 1901 (“All civil causes of
action for alienation of affections of husband or wife are abolished.”). This Court itself
has not hesitated to abrogate common law anachronisms. Consider, for example, the
tort of criminal conversation—an action that could be brought against a third party who
“engaged in at least a single act of sexual intercourse” with the plaintiff’s spouse. See
Fadgen v. Lenkner, 365 A.2d 147, 149 (Pa. 1976).
These concerns evince the principle that a legislature, like a court, may from time
to time recognize that life and experience have consigned a common law rule to
obsolescence, leaving that rule subject both to judicial modification and to statutory
revision. Our own expressions throughout our Article I, Section 11 case law have, for at
least a century, harmonized consistently with this perspective.10 It follows that the
fact, Justice Flaherty’s Equal Protection Clause analysis in Smith was joined only by a
single justice, who himself wrote separately to clarify that “not all legislative restrictions
which impact upon access to the courts” will require the application of intermediate
scrutiny. Smith 516 A.2d at 312 (Nix, C.J., concurring). In other words, there is no support
for the lead Opinion’s holding that intermediate scrutiny applies for purposes of the
Remedies Clause; indeed, our relevant decisions suggest quite the opposite. See, e.g.,
Freezer Storage, 382 A.2d at 720 (upholding a twelve year statute of repose).
10 See, e.g., Carroll v. York Cty., 437 A.2d 394, 397 (Pa. 1981); Freezer Storage, 382
A.2d at 720; Singer v. Sheppard, 346 A.2d 897, 903 (Pa. 1975); Jackman v. Rosenbaum
Co., 106 A. 238, 244 (Pa. 1919).
[J-83-2018] - 9
intermediate scrutiny standard fails to afford the legislature sufficient latitude to modify
traditional common law remedies. In other words, today’s decision impedes and flouts
the General Assembly’s policymaking authority, thus countenancing the very “stagnation
of the law in the face of changing societal conditions” that this Court has warned our
Constitution does not mandate. Freezer Storage, 382 A.2d at 720 (quoting Singer v.
Sheppard, 346 A.2d 897, 903 (Pa. 1975)). Rather than embrace a test that is manifestly
incompatible with our existing Remedies Clause jurisprudence, I would follow the lead of
the many courts which have held that the legislature may abrogate or modify a common
law cause of action in response to a clear social or economic need, so long as the
challenged legislation bears a rational and non-arbitrary connection to that need.11 This
standard strikes the appropriate balance between the two primary concerns expressed in
our prior cases: (1) guarding the constitutional right to a remedy; and (2) affording the
people’s representatives necessary and proper latitude to shape public policy.
Applying this standard, I would conclude that the General Assembly’s imposition
of a seven-year statue of repose on most medical malpractice claims bears a rational and
non-arbitrary connection to a clear economic need. As an initial matter, the Yanakoses
appear to concede the economic need for the MCARE Act’s reforms. The Yanakoses do
not dispute that the General Assembly imposed the seven-year statute of repose to
11 See, e.g., Robinson v. Charleston Area Med. Ctr., Inc., 414 S.E.2d 877, 884
(W.Va. 1991) (explaining that legislation implicating the Remedies Clause of the West
Virginia Constitution will be upheld if “the purpose of the alteration or repeal of the existing
cause of action or remedy is to eliminate or curtail a clear social or economic problem,
and the alteration or repeal of the existing cause of action or remedy is a reasonable
method of achieving such purpose”); Berry v. Beech Aircraft Corp., 717 P.2d 670, 680-81
(Utah 1985) (explaining that abrogation of a remedy or cause of action is constitutionally
justified if “there is a clear social or economic evil to be eliminated and the elimination of
an existing legal remedy is not an arbitrary or unreasonable means for achieving the
objective”); Lankford v. Sullivan, Long & Hagerty, 416 So.2d 996, 1000 (Ala. 1982)
(holding that legislation which abolishes or alters a common law cause of action is
unconstitutional unless it “eradicates or ameliorates a perceived social evil”).
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preclude the filing of aged lawsuits, which increase the cost of medical professional
liability insurance in the Commonwealth, which, in turn, increases the overall cost of
health care services. See Brief for the Yanakoses at 25; see also 40 P.S. § 1303.102(3)
(“To maintain [a comprehensive and high-quality health care] system, medical
professional liability insurance has to be obtainable at an affordable and reasonable cost
in every geographic region of this Commonwealth.”). Thus, there can be no real dispute
that the General Assembly has an important interest in ensuring both that Pennsylvania
physicians have access to affordable malpractice insurance and that Pennsylvania
citizens have access to affordable medical care. Nor could anyone dispute that there is
a “clear social or economic need” for an affordable and well-regulated health care system.
Rather than challenge the economic necessity of the MCARE Act, the Yanakoses
argue that the statute of repose is unconstitutional because it creates arbitrary distinctions
between classes of medical malpractice victims. In this regard, the Yanakoses stress
that the statute of repose does not apply to injuries caused by a foreign object that has
been negligently left inside a patient’s body. See 40 P.S. § 1303.513(b). According to
the Yanakoses, this exception to the statute of repose “arbitrarily protects the right of
certain victims of malpractice to seek a remedy while closing the courthouse doors to
other victims who are similarly situated.” Brief for the Yanakoses at 28.
The foreign-object exception to the statute of repose does not render the statute
arbitrary or irrational. There are persuasive and wholly non-arbitrary reasons for the
MCARE Act’s unique treatment of foreign object cases. First, cases that fall within the
foreign-object exception are almost certainly rare. See Fessenden v. Robert Packer
Hosp., 97 A.3d 1225, 1233 (Pa. Super. 2014) (noting that “sponge left behind” cases are
uncommon in Pennsylvania). Second, it is conceivable that a foreign object concealed in
a patient’s body would be more likely than other manifestations of medical negligence to
[J-83-2018] - 11
go unnoticed for many years. Finally, foreign object cases, unlike other cases of medical
negligence, generally will not involve difficult problems of proof, since the discovery of the
foreign object is itself compelling evidence of some earlier negligent act. See Toogood
v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1140, 1147 (Pa. 2003) (discussing the
application of res ipsa loquitur in “‘sponge left in the patient’ cases”). This means that,
while the mere passage of time can make non-foreign object cases difficult (and
expensive) to defend against, foreign object cases are less likely to be compromised by
changing standards of care, waning memories of witnesses, or the unavailability of
relevant documents. Given these significant differences, the General Assembly’s
decision to exempt foreign object cases from the statute of repose was neither arbitrary
nor irrational.12
Furthermore, even if I agreed with the lead Opinion’s invocation of intermediate
scrutiny, I would still uphold the MCARE Act’s statute of repose. As the lead Opinion
explains, to pass intermediate scrutiny, the law in question must be substantially related
to an important governmental objective. Lead Opinion at 12; see United States v. Virginia,
518 U.S. 515, 533 (1996). As explained above, the Yanakoses do not dispute (nor could
they, really) that ensuring access to affordable liability insurance for medical
professionals, thus ensuring access to affordable medical services for patients, is an
important governmental objective. The only question, then, is whether the MCARE Act’s
statute of repose is substantially related to the objective of reducing the cost of medical
12 The exception to the statute of repose for malpractice claims brought by or on
behalf of minors, 40 P.S. § 1303.513(c), is similarly a rational and non-arbitrary means to
address a clear social and economic predicament. The General Assembly undoubtedly
recognized that minors, who cannot assert medical negligence claims on their own behalf,
should be given a fair opportunity to bring their claims after reaching the age of majority.
Indeed, the Yanakoses acknowledge that this exception is “narrowly tailored,” and that its
“application fully encompasses its purpose.” Brief for the Yanakoses at 29.
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professional liability insurance. It is. One need not be an expert in the economics of the
insurance industry to understand that the cost of insurance coverage corresponds
generally with the insurer’s own costs, which will decrease when fewer aged claims are
filed.13 Because the statute of repose advances the underlying objective of reducing the
cost of malpractice insurance, it withstands intermediate scrutiny.
In support of its holding, the lead Opinion advances a novel suggestion: to wit, that
the intermediate scrutiny standard requires “evidence in the legislative history” explaining
“how the General Assembly arrived at a seven-year statute of repose with exceptions for
foreign objects cases and minors.” Lead Opinion at 18. This is startling. With this test in
hand, lawyers are now charged with the duty of mining house and senate journals and
committee reports in an effort to satisfy judges that lawmakers have been, in effect,
‘reasonable enough.’ The lead Opinion’s new legislative-history-inspection-standard
resembles a homework assignment for the General Assembly, an assignment this Court
is not authorized to give. As a matter of law, the General Assembly need not “cite . . .
statistics” (see id.) so as to anticipate and satisfy a prospective reviewing court that a
shorter statute of repose would have been inadequate to achieve the legislature’s goal of
reducing medical malpractice insurance premiums. Citation of supporting statistics on
the house or senate floor is not a judicial approval checklist item to be prescribed by this
13 See generally U.S. Gen. Accounting Office, Medical Malpractice Insurance:
Multiple Factors Have Contributed to Increased Premium Rates, 16 (June 2003),
available at https://www.gao.gov/new.items/d03702.pdf (“Incurred losses are the largest
component of medical malpractice insurers’ costs. For the 15 largest medical malpractice
insurers in 2001—whose combined market share nationally was approximately 64.3
percent—incurred losses (including both payments to plaintiffs to resolve claims and the
costs associated with defending claims) comprised, on average, around 78 percent of the
insurers’ total expenses. Because insurers base their premium rates on their expected
costs, their anticipated losses will therefore be the primary determinant of premium
rates.”).
[J-83-2018] - 13
or any other court. This is an exacting, even imperial, standard that ignores the manner
in which judicial review works.
In essence, the lead Opinion concludes that the seven-year statute of repose is
both overinclusive (because a longer repose period might have reduced medical
malpractice insurance premiums just as well as a shorter one) and underinclusive
(because minors and foreign-objects plaintiffs are exempt from the statute of repose). Id.
at 18-19. But the intermediate scrutiny inquiry that the lead Opinion itself adopts does
not require that the General Assembly choose the least restrictive means available to
achieve its objective. See Fisher v. Univ. of Tex. at Austin, 570 U.S. 297, 311 (2013)
(discussing the narrow tailoring requirement associated with strict scrutiny). Intermediate
scrutiny requires only a substantial relation between a legislature’s goal and the means
that it selected to achieve that goal. Whether a different law also might have achieved
the legislature’s goal is not a question for this Court. The standard of scrutiny that the
lead Opinion adopts is intermediate in name only. In substance, today’s decision simply
invites judges to substitute their own public policy views in the place of arguably imperfect,
but duly enacted, legislation. Nothing in the text or history of Article I, Section 11
sanctions this judicial second-guessing of the General Assembly’s policy decisions.
There is of course no end to such a court-as-supervisor enterprise.
In sum, I would hold that statutes which modify or abolish common law causes of
action violate Article I, Section 11 of the Pennsylvania Constitution unless the challenged
legislation is supported by a clear social or economic need for reform. If a law is not
supported by such a need, or if the means chosen to address the social or economic
problem are arbitrary or irrational, then the law is unconstitutional. Because I would find
that the MCARE Act’s statute of repose satisfies this benchmark, I would affirm the
decision of the Superior Court.
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Chief Justice Saylor and Justice Baer join this dissenting opinion.
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