Reibenstein, L. v. Barax M.D. Apl of: Conaboy

[J-86-2022]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
LINDA REIBENSTEIN, AS THE : No. 32 MAP 2021
ADMINISTRATRIX OF THE ESTATE OF MARY :
ANN WHITMAN, DECEASED : Appeal from the Order of the
: Superior Court at No. 1624 MDA
: 2019 dated July 30, 2020,
v. : reconsideration denied October
: 5, 2020, Vacating the Order of
: the Lackawanna County Court of
CHARLES BARAX, M.D.; AND MERCY : Common Pleas, Civil Division, at
HOSPITAL, SCRANTON : No. 2016-01716 dated August
: 29, 2019 and Remanding.
______________________________________ :
LINDA REIBENSTEIN, AS THE : ARGUED: October 26, 2021
ADMINISTRATRIX OF THE ESTATE OF MARY :
ANN WHITMAN, DECEASED : RESUBMITTED: November 15,
: 2022
v. :
:
:
PATRICK D. CONABOY, M.D.; AND COGNETTI :
& CONABOY FAMILY PRACTICE, P.C. :
:
:
APPEAL OF: PATRICK D. CONABOY, M.D. :
AND COGNETTI & CONABOY FAMILY :
PRACTICE, P.C. :
:
:
:
OPINION
JUSTICE WECHT DECIDED: December 12, 2022
We have long recognized a material distinction between cause and manner of
death, with the former referring to the immediate physiological processes that precipitate
the death of an individual and the latter speaking to the broader context of the surrounding
circumstances and events that preceded and contributed to those fatal physiological
processes.1 Here, we consider a similar distinction in a new context—counterposed as
medical cause and legal cause—specifically concerning the operation of the statute of
limitations for wrongful death and survival actions2 under the Medical Care Availability
and Reduction of Error Act (“MCARE”).3
MCARE § 513(d) provides that its two-year limitations period on death actions,
which commences upon death, will be tolled when there is an affirmative
misrepresentation or fraudulent concealment of the cause of death.4 Appellee Linda
Reibenstein undisputedly brought her claims against Appellant Patrick Conaboy, M.D.,
after the two-year period had run, and the death certificate undisputedly and correctly
noted the medical cause of Reibenstein’s decedent’s death. The trial court ruled that the
phrase “cause of death” refers specifically and only to the direct medical cause of death.
Accordingly, it granted summary judgment to Dr. Conaboy under Section 513(d). The
Superior Court reversed, interpreting “cause of death” more broadly to encompass
1 See Brenneman v. St. Paul, 192 A.2d 745, 748-50 (Pa. 1963) (distinguishing the
traumatic cause of a fatal injury from the events leading to the traumatic event to
determine whether the terms of a life insurance policy had been satisfied).
2 We primarily refer to these collectively as “death actions.”
3 Act of March 20, 2002, P.L. 154, No. 13, codified as amended at 40 P.S.
§§ 1303.101-1303.910.
4 Section 513(d) limits wrongful death and survival actions as follows: “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) (emphasis added); see 42 Pa.C.S. §§ 8301 (wrongful death
action), 8302 (survival action).
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considerations associated with the manner of death (i.e., legal cause) in the sense alluded
to above.5 We hold that MCARE’s tolling provision cannot bear the breadth of that
reading. Accordingly, we reverse.
Decedent Mary Ann Whitman consulted with Dr. Conaboy on April 12, 2010,
complaining of a persistent cough, fever, and lower back pain. Dr. Conaboy ordered an
aortic duplex ultrasound scan and a CT scan of Whitman’s abdominal area, both of which
were performed on April 23, 2010. Charles Barax, M.D., a radiologist, reviewed the
scans, identifying what he characterized as a poorly visualized aortic aneurysm.
Dr. Barax’s report indicated that “Dr. Conaboy was contacted with this study [and] was
read [sic] with the findings” and that the report was provided to Dr. Conaboy.6 Dr.
Conaboy scheduled Whitman to meet with a vascular surgeon on May 10, 2010, but
Whitman died when the aneurysm ruptured on April 28, 2010. The parties do not dispute
that Whitman’s death certificate correctly identified the rupture as her cause of death.
On April 15, 2011, Reibenstein, administratrix of Whitman’s estate, brought a
wrongful death and survival action against Dr. Barax and Mercy Hospital Scranton
(collectively, “Dr. Barax”). The thrust of the suit was that Dr. Barax had misread
Whitman’s CT scan, failing to recognize the urgency of her condition. As well,
Reibenstein contends that she sought unsuccessfully to obtain the certificate of merit that
would enable her to name Dr. Conaboy alongside Dr. Barax as a defendant in her original
5 Reibenstein v. Barax, 236 A.3d 1162 (Pa. Super. 2020).
6 Whitman Radiology Report, 4/23/2010, at 2 (attached to Reibenstein’s Br. in Opp.
to Summ. J., 5/24/2018, Ex. D at 2).
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action.7 For his part, Dr. Barax filed an answer with new matter, as well as a cross-claim
against Mercy Hospital. However, he made no effort to plead Dr. Conaboy into the
litigation.
Discovery progressed, but in fits and starts over several years. The substance and
timing of Dr. Barax’s deposition is central to this case. The trial court indicated that
Reibenstein “made several unsuccessful attempts to schedule Dr. Barax’s deposition,”
and that the deposition was taken only after the court intervened.8 Dr. Conaboy observes
that Reibenstein did not “officially notice” Dr. Barax’s deposition until May 22, 2013, well
after Section 513(b)’s two-year time limit had run as to Dr. Conaboy.9 Three notices
followed, with court intervention evidently sought only later in this period, over a year after
the first notice was rebuffed. For her part, Reibenstein observes that she filed requests
for written discovery “[i]mmediately after” filing her complaint against Dr. Barax; that it
took motions to compel and for sanctions before Dr. Barax responded; and that, “[t]hrough
no fault of Ms. Reibenstein, during the course of Dr. Barax’s months of obstructionist
actions,” the statute of limitations expired as to Dr. Conaboy.10
Reibenstein finally deposed Dr. Barax nearly five years after Whitman’s death,
almost four years after filing suit against him. During that February 2015 deposition,
Dr. Barax indicated that he spoke personally with Dr. Conaboy on the day that the CT
scan was performed on Whitman. In that conversation, according to Dr. Barax, he
7 See Reibenstein’s Br. at 6.
8 Trial Court Opinion Granting Summary Judgment, 10/23/2019, at 2 (“T.C.O.”).
9 Conaboy’s Br. at 7.
10 Reibenstein’s Br. at 8.
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specifically informed Dr. Conaboy both of the presence of an abdominal aortic aneurysm
and, importantly, explained that the poor quality of the visualization prevented him from
determining whether the aneurysm was rupturing or bleeding.11 He “further testified that
he conveyed to Dr. Conaboy his concerns of a potential rupture.”12
Based upon this testimony, but over a year after the deposition, on March 1, 2016,
Reibenstein filed a new wrongful death and survival action against Dr. Conaboy and his
associated practice (collectively, “Dr. Conaboy”), which the trial court consolidated with
the Dr. Barax action.13 This second suit was premised upon Dr. Conaboy’s alleged failure
to act in light of more detailed information he received in conversation with Dr. Barax, the
full substance of which, in Reibenstein’s view, was not fully explained in Dr. Conaboy’s
response to written discovery. Dr. Conaboy ultimately sought summary judgment on the
basis that MCARE’s statute of limitations for wrongful death and survival actions had long-
since run on or about April 28, 2013, almost three years before Reibenstein sued
Dr. Conaboy. The trial court heard argument and denied summary judgment, citing
Nicolaou v. Martin,14 a case that involved application of the discovery rule 15 to a non-
11 T.C.O. at 2.
12 Trial Court Opinion Denying Summary Judgment, 11/15/2018, at 2. As explained
herein, the trial court first denied Dr. Conaboy’s motion for summary judgment only to
grant it upon reconsideration—hence the existence of two trial court opinions.
13 Dr. Barax is not a participant in this appeal.
14 195 A.3d 880 (Pa. 2018).
15 “In certain cases involving latent injury, and/or instances in which the causal
connection between an injury and another’s conduct is not apparent, the discovery rule
may operate to toll the statute of limitations until the plaintiff discovers, or reasonably
should discover, that she has been injured and that her injury has been caused by another
party’s conduct.” Wilson v. El-Daief, 964 A.2d 354, 361-62 (Pa. 2009); see Fine v.
Checcio, 870 A.2d 850, 858 (Pa. 2005) (“[T]he salient point giving rise to [the discovery
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death-related claim. In effect, the trial court determined that there were disputed issues
of material fact affecting whether the discovery rule rendered Reibenstein’s claim against
Dr. Conaboy timely. But upon considering Dr. Conaboy’s motion for reconsideration,
which called particular attention to Section 513(d)’s MCARE-specific statute of limitations
for death and survival claims and that section’s tolling provision, the court granted
summary judgment for Dr. Conaboy. In doing so, the court deemed it “clear” that there
“is no evidence of ‘affirmative misrepresentation or fraudulent concealment of the cause
of death.’”16
Reibenstein appealed, and the Superior Court rejected the trial court’s reasoning.
Section 513, “Statute of repose,” provides, in relevant part:
(a) 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.
****
(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.17
rule’s] application is the inability of the injured, despite the exercise of reasonable
diligence, to know that he is injured and by what cause.”).
16 T.C.O. at 4 (citing Molineaux v. Reed, 532 A.2d 792 (Pa. 1987); Pastierik v.
Duquesne Light Co., 526 A.2d 323 (Pa. 1987)).
17 40 P.S. § 1303.513 (emphasis added). Notwithstanding its titular reference to
“repose,” we have held that Section 513(d) operates as a statute of limitations. See
Dubose v. Quinlan, 173 A.3d 634, 647 (Pa. 2017) (“Section 513(d) is a statute of
limitations for medical professional liability death cases that sets the date of accrual at the
date of decedent’s death.”).
[J-86-2022] - 6
The Superior Court noted that MCARE’s stated purpose “is to ensure . . . that high
quality health care is available in the Commonwealth and [to] provide a person who has
sustained injury as a result of medical negligence by a health care provider with fair
compensation, while controlling the costs of medical malpractice insurance rates.”18 In
determining the effect of Section 513(d), the court observed that MCARE itself offered no
definition of “cause of death.”19 Dr. Conaboy maintained that the term referred strictly to
medical cause of death, i.e., to the direct physical failure or processes that precipitated
the patient’s death. Reibenstein contended that the phrase should be read also to
incorporate the legal cause of death, capturing not only the medical cause of death but
also the acts, omissions, or events having some causative connection with the death.
Finding both interpretations reasonable, the court determined that the legislature’s
chosen language was ambiguous.20 The court turned to the factors employed in
interpreting an ambiguous statute.21 The court deemed it “clear” that Section 513(d)’s
18 Reibenstein, 236 A.3d at 1166. Compare “Declaration of Policy,” 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.”) with id.
§ 1303.102(4) (“A person who has sustained injury or death as a result of medical
negligence by a health care provider must be afforded a prompt determination and fair
compensation.”).
19 Reibenstein, 236 A.3d. at 1165.
20 “When the parties read a statute in two different ways and the statutory language
is reasonably capable of either construction, the language is ambiguous.”
Commonwealth v. Giulian, 141 A.3d 1262, 1268 (Pa. 2016).
21 See Reibenstein, 236 A.3d at 1165-66. The factors include, but are not limited to:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
[J-86-2022] - 7
tolling provision was intended “to protect patients who have pursued their rights, and
despite this, ‘extraordinary circumstance prevents them from bringing a timely action.’”22
Where that is the case, the court ventured, the limitations period does not “further the
statute’s purpose.”23 In the court’s opinion, the legislature’s choice to include a tolling
provision signaled its recognition 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.24
Confronted with the competing goals of ensuring fair compensation while working to
minimize frivolous litigation and associated increases in insurance premiums, the court
determined that the tolling provision should be read as serving the legislature’s stated
(3) The mischief to be remedied.
(4) The object to be attained.
(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. § 1921(c).
22 Reibenstein, 236 A.3d at 1166 (quoting Dubose, 173 A.3d at 645).
23 Id. (quoting Dubose, 173 A.3d at 645).
24 Id. (emphasis in original).
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intention to ensure fair compensation. Thus, the “‘affirmative misrepresentation or
fraudulent concealment of the cause of death’” tolling provision applied not only to
obscurantist conduct in connection with the medical cause of death, but also to
“affirmative misrepresentations about or fraudulent concealment of conduct the plaintiff
alleges led to the decedent’s death.”25
The Superior Court concluded that the trial court erred when it entered summary
judgment on the basis that Whitman’s death certificate correctly recorded her medical
cause of death. Thus, the appellate court vacated the entry of summary judgment and
remanded to the trial court to consider whether “there was a fraudulent concealment or
affirmative misrepresentation of an act by Dr. Conaboy related to Mrs. Whitman’s
death.”26
We granted Dr. Conaboy’s Petition for Allowance of Appeal in order to determine
the scope and meaning of the phrase “cause of death” as used in Section 513(d).27
25 Id. Relatedly, this Court has held that fraudulent concealment “does not require
fraud in the strictest sense encompassing an intent to deceive, but rather, fraud in the
broadest sense, which includes an unintentional deception.” Fine, 870 A.2d at 860.
However, “[t]he plaintiff has the burden of proving fraudulent concealment by clear,
precise, and convincing evidence.” Id.
26 Reibenstein, 236 A.3d at 1166-67.
27 Specifically, we granted review of the following questions:
(1) Whether this Court should rule that “cause of death,” as it appears in
MCARE’s statute of limitation, refers to medical cause of death, and not
“conduct leading to death” (or legal cause of death)?
(2) Whether the statute of limitations on a wrongful death or survival act
claim may only be tolled under section 513(d) of MCARE where a plaintiff
proves that the defendant against whom the claims are asserted (and not a
third party) affirmatively misrepresented or fraudulently concealed
decedent’s cause of death?
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Because this is a question of law, we conduct our review de novo, and the scope of our
review is plenary.28
[O]ur interpretive function requires us to identify the intent of the legislature,
and we begin with the presumption that unambiguous statutory language
embodies that intent, requiring no further investigation. We may not
disregard the Act’s unambiguous language in service of what we believe to
be the spirit of the law. Furthermore, while we must consider the statutory
language in its full context before we assess ambiguity, we must not
overlabor to detect or manufacture ambiguity where the language reveals
none.29
“[W]e should not interpret statutory words in isolation but must read them with reference
to the context in which they appear.”30
The parties’ respective arguments run in two tracks. First, each maintains that the
other’s proposed definition adds language to the statute. We can no more interpret a
statute in a way that adds language than we can read it in a way that renders any statutory
language ineffective.31 In the second line of argument, each party proposes that highly
unfavorable results that are antithetical to MCARE’s purpose and design will follow from
ruling in favor of the adversary. We address these arguments in turn.
Reibenstein v. Barax, 253 A.3d 209 (Pa. 2021) (per curiam) (simplified for clarity). Our
resolution of the first issue obviates the need to resolve the second.
28 Allstate Life Ins. Co. v. Commonwealth, 52 A.3d 1077, 1080 (Pa. 2012).
29 Sivick v. State Ethics Comm’n, 238 A.3d 1250, 1263-64 (Pa. 2020) (footnotes
omitted); see 1 Pa.C.S. § 1921(b).
30 A.S. v. Pa. State Police, 143 A.3d 896, 906 (Pa. 2016); see King v. Burwell,
576 U.S. 473, 486 (2015) (“[W]hen deciding whether the language is plain, we must read
the words in their context and with a view to their place in the overall statutory scheme.
Our duty, after all, is to construe statutes, not isolated provisions.”) (cleaned up).
31 See Commonwealth v. Rieck Inv. Corp., 213 A.2d 277, 282 (Pa. 1965)) (“[I]t is not
for the courts to add, by interpretation, to a statute, a requirement which the legislature
did not see fit to include.”).
[J-86-2022] - 10
Dr. Conaboy argues that, in interpreting the statute broadly, the Superior Court
effectively added language expanding the scope of the narrow phrase “cause of death”:
The Superior Court both added and removed words from the statute, as
shown in brackets and delineation below: “[i]f 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 [conduct leading to] cause of death.”32
Reibenstein disagrees, arguing that—far from adding or removing language—the
Superior Court merely interpreted it. But she also suggests that the adding/subtracting
language argument is a double-edged sword. “[Dr. Conaboy is] asking this court to find
that ‘cause of death’ means ‘medical cause of death as identified on a death certificate.’” 33
Thus, she contends, Dr. Conaboy’s account no less entails the addition of material
language to a statute in a way that alters its apparent meaning.
The lack of definition naturally complicates a plain-language analysis, but it hardly
precludes one. Among other sources, we may seek common understanding in
dictionaries, which furnish insight into shared meaning.34 And, as we noted in Sivick, a
contextualized view of a statute also may reveal its meaning without the convenient but
unnecessary resort to ambiguity analysis.35 Such is the case here. The language of
Section 513(d) and its statutory context compel the conclusion that “cause of death”
should be understood narrowly to encompass only the accuracy of the medical cause of
death noted on the certificate of death.
32 Conaboy’s Br. at 18.
33 Reibenstein’s Br. at 33.
34 See In re Beyer, 115 A.3d 835, 839 (Pa. 2015).
35 See Sivick, 238 A.3d at 1264.
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Precisely because MCARE encompasses a panoply of interrelated topics,
including both tort and quality of care, the most sensible places to seek the meaning of
the term “cause of death” are medical contexts in which the General Assembly has used
this language—that is, in the Vital Statistics Law and the various County Codes, where
cause and manner of death (and their cadences of medical and legal causation) are
treated as distinct—especially where those uses unambiguously evoke the medical
dictionary definition. For example, Section 507 of the Vital Statistics Law of 195336 details
circumstances in which a “professional nurse” may pronounce a patient’s death, notify a
coroner, or release the decedent’s body to a funeral director. But that limited authority “in
no way authorizes a professional nurse to determine the cause of death. The
responsibility for determining the cause of death remains with the physician, certified
registered nurse practitioner or the coroner.”37 The reason for this limitation on a
professional nurse’s authority, informed by the class of professionals who are not so
restricted, is clear: the physician, certified registered nurse practitioner, and coroner—
and no one else—are the persons qualified by training and by law to determine the
medical cause of death. But notably, neither the statute nor common sense suggests
that (with the exception of a coroner) they are qualified to speak to the legal cause of
death.38
36 See 35 P.S. §§ 450.101-450-1003.
37 Id. § 450.507(d) (emphasis added).
38 Providers’ lack of legal qualifications underscores the risk of broadening the
expectations for what physicians must know about the law and share with survivors and
investigating counsel in order to retain the benefit of the Section 513(d) statute of
limitations. As mentioned supra n.26, fraudulent concealment in this context requires no
wrongful intent as such. And as the facts of this case suggest, a plaintiff may argue that
[J-86-2022] - 12
Further support for a narrow interpretation of the phrase that distinguishes medical
from legal cause of death—much as the law has distinguished cause of death from
manner of death—appears in provisions of Pennsylvania’s County Code that detail the
duties of county coroners, which include investigating “the cause and manner of death”
for purposes of determining criminal responsibility “by act or neglect.” 39 It is the coroner,
rather than a health care provider, whose investigative authority and duties extend
beyond the mere physiological mechanism by which death occurred and into the realm
of legal causation.40
To ensure that references to cause and manner of death are individually effective
rather than redundant, we must assume that the legislature intended to impart to them
a mere omission by a deponent physician of a detail that a clinician might reasonably
think immaterial to a given deposition question is sufficient to trigger tolling under
Section 513(d). Justice Mundy would obligate a well-intentioned physician who
participated in a given patient’s care to record, and later to scour his or her records and
memory, not only for what might be relevant in the clinical sense but also what might
appear relevant to someone with legal training. Nothing in MCARE suggests that the
legislature intended to saddle providers with such a burden.
39 16 P.S. § 1219-B(a) (“Autopsy.—If, after investigation, the coroner is unable to
determine the cause and manner of death, the coroner shall perform or order an autopsy
on the body.” (emphasis added)); id. § 1219-B(b) (“Inquest.—If the coroner is unable to
determine the cause and manner of death following an autopsy, the coroner may conduct
an inquest,” at which “the coroner’s duty shall be to: (1) Ascertain the cause of death.
(2) Determine whether an individual other than the deceased was criminally responsible
by act or neglect . . . .”); cf. 16 P.S. § 9521 (“Coroner to investigate facts in deaths under
suspicious circumstances”). Section 1219 is found in the County Code, but materially
identical coroner-related provisions are found as well in the Second Class County Code.
See 16 P.S. §§ 4237-38. Moreover, overarching provisions pertinent to all counties point
the same way.
40 See, e.g., 20 Pa.C.S. § 8657(a) (the Estates Code) (“This section shall apply in all
cases when the coroner or medical examiner must determine the cause of death and
whether the death may have resulted from criminal acts or criminal neglect.”).
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distinct meanings.41 The only way to do so in the County Code without favoring Dr.
Conaboy’s argument for a narrow interpretation of “cause of death” in MCARE would be
to assume that the legislature intended the term to mean significantly different things in
each of those statutes. Certainly, one can hypothesize contexts in which the legislature
so intends. But we will not presume that to be the case without some quantum of
evidence to suggest such intent. No such evidence appears in this case.42
As we observed above, we also may seek guidance in dictionaries. Dictionaries,
too, recognize a cause/manner distinction. Black’s Law Dictionary, for example, defines
cause of death as “[t]he happening, occurrence, or condition that makes a person die; the
41 See 1 Pa.C.S. § 1921(a) (“Every statute shall be construed, if possible, to give
effect to all its provisions.”); Ind. Oil & Gas Assn. v. Bd. of Assessment, 814 A.2d 180,
183 (Pa. 2002) (“Because the legislature is presumed to have intended to avoid mere
surplusage, every word, sentence, and provision of a statute must be given effect.”).
42 With little clarity as to why, Justice Mundy rejects our treatment of the Vital
Statistics Law (and, ostensibly, the various county codes, which she does not address)
as “context” for interpretive purposes. Instead, she offers 42 Pa.C.S. § 8301, governing
wrongful death actions, one of two provisions cross-referenced in MCARE § 513(d),
which, she argues, “shows that the concept of ‘cause of death’ in wrongful death cases
may carry a broader meaning than the immediate physiological processes that precipitate
death and may include wrongful acts or neglect that caused death.” Conc. & Diss. Op.
at 4 (Mundy, J.). This is a dubious twist on Section 8301’s language, which describes a
right of action “for the death of an individual caused by the wrongful act or neglect or
unlawful violence or negligence of another.” 42 Pa.C.S. § 8301. While this alludes to the
cause of death, the full internal context of Section 8301 expressly describes elements of
legal causation. Unlike Section 8301, Section 513(d) does not codify a death action, it
confines it. And that Section 8301 includes language clearly describing legal causation
underscores that Section 513(d) does not. In our view, other statutory uses of “cause of
death” are more informative than Section 8301’s use of similar phrasing, which is modified
by a clear description of legal causation absent from Section 513(d). That Section 513(d)
cross-references Section 8301 does nothing more than identify the scope of
Section 513(d)’s application.
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injury, disease, or medical complication that results directly in someone’s demise.”43 In
isolation, “happening, occurrence, or condition” might hint at a broader inquiry than
medical cause, but only in isolation. The more limited reference to “injury, disease, or
medical complication”—with its suggestive use of the word “directly,” which implies “but-
for” causation—critically narrows the scope of the definition. Dorland’s Medical Dictionary
offers an equally strict definition of cause of death as “the injury or disease responsible
for death.”44 And our constrained reading of “cause of death” in harmony with these
dictionaries finds more support in the same dictionaries’ respective definitions of manner
of death. Black’s, for example, defines manner of death as “[t]he circumstances under
which the cause of death arose,”45 which jibes perfectly with Dorland’s definition: “the
circumstances under which a death occurs, e.g., suicide or accident.”46
In sum then, the available textual evidence, especially viewed in light of broader
statutory context and the common usage reflected in reliable reference resources, favors
Dr. Conaboy’s narrower construction.47 The analysis also supports his contention that to
43 Cause of death, BLACK’S LAW DICTIONARY (10th ed. 2014).
44 Cause of death, DORLAND’S MEDICAL DICTIONARY ONLINE, available at
https://www.dorlandsonline.com/dorland/definition?id=63759.
45 Manner of death, BLACK’S LAW DICTIONARY (10th ed. 2014).
46 Manner of death, DORLAND’S MEDICAL DICTIONARY ONLINE, available at
https://www.dorlandsonline.com/dorland/definition?id=87900.
47 Presumably, physicians and certified registered nurse practitioners do not consult
legal dictionaries in order to discern their professional functions and responsibilities. They
may not consult medical dictionaries, either. But if these medical personnel were to look
anywhere, medical references, as well as statutes imposing parameters upon their
responsibilities when a patient dies, would be more likely destinations than a dictionary
of legal terms. And so a medical dictionary is an appropriate resource in the search for a
contextually common understanding of the terms here at issue.
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read “cause of death” as encompassing legal causation or manner of death would entail
inserting language into the statute, an enterprise in which we are not free to engage.48
The foregoing analysis, sufficient in itself to compel our conclusion, also
harmonizes with our pre-MCARE decision in Pastierik. In that case, the decedent died of
lung carcinoma, and, over three years later, the plaintiff filed two complaints against
defendants alleging that the decedent’s cancer was caused by workplace exposure to
asbestos—the first against decedent’s employer, and the second against an alleged
supplier of the asbestos. Although decedent died in April 1978, the plaintiff contended
that she did not know until March 1981 that asbestos exposure caused her husband’s
death, hence the discovery rule applied to render her suits timely even though they were
filed more than two years after the decedent’s death. The trial court found both of the
plaintiff’s suits barred on the basis that the statute of limitations began to run upon death.
The Superior Court reversed, holding that the discovery rule applied.
On appeal, this Court rejected the Superior Court’s application of the discovery
rule to a death action. The Pastierik Court recognized that the typical circumstances that
call for resort to the discovery rule do not, indeed cannot, apply to death actions,
explaining:
Statutory references to the occurrence of an “injury” or the accrual of a
“cause of action” are subject to judicial interpretation as to the degree of
knowledge a plaintiff must possess before the statute will start to run. In
contrast, the requirement that a wrongful death action be brought within a
48 See Rieck Inv. Corp., 213 A.2d at 282 (“[I]t is not for the courts to add, by
interpretation, to a statute, a requirement which the legislature did not see fit to include.”).
[J-86-2022] - 16
specified number of years after a definitely established event,—“death”—
leaves no room for construction.49
The discovery rule applies when critical information about an injury eludes detection
through no lack of diligence on the plaintiff’s part, and the “discovery” of that information
accordingly dictates when a claim accrues and the limitations period begins to run. But
when potential malpractice leads to death, there is no question that injury has occurred—
death alone is a signal event, a sufficient impetus to investigate the prospect of
malpractice diligently.50
Even before MCARE’s enactment, that principle was subject to an equitable
exception. Then (under the common law) as now (under MCARE), where “cause of
49 Pastierik, 526 A.2d at 325 (quoting Anthony v. Koppers Co., 436 A.2d 181, 184
(Pa. 1981)) (Pastierik’s emphasis; cleaned up). In Wilson, 964 A.2d 354, this Court
conducted a thorough survey of how Pennsylvania courts and courts in other jurisdictions
have interpreted claim accrual in discovery rule situations, which run the gamut from the
point at which the plaintiff knew or should have known that she was injured all the way to
when the plaintiff knew or should have known that she was injured, and knew that a claim
might lie, and knew something about who caused the harm. We made clear in Wilson
that our history was consistent with “the narrower of the two overarching approaches to
determining accrual for limitations purposes.” 964 A.2d at 364. We further observed that
the 2005 edition of Pennsylvania’s Suggested Standard Civil Jury Instructions found
accrual occurred when “the plaintiff could have first reasonably discovered [his or her]
injuries and that it [sic] was caused by the conduct of another person”—but not, notably,
a specific person. Id. at 365 (citation omitted).
50 At times, the Pastierik Court seemed to question whether “accrual,” as such, is a
relevant concept in death actions: “[W]hile the concept of accrual may have usefulness in
delaying the point at which the statute of limitations begins to run with respect to
injuries, . . . because injuries are of a nature that they may be inflicted without immediate
symptoms or immediately determinable causes, causes of action for death must be
regarded in a different light since they are not similarly shrouded by indefinite factors.”
526 A.2d at 326. But later, in Dubose, this Court applied the concept of accrual to death
actions: “Section 513(d) is a statute of limitations for medical professional liability death
cases that sets the date of accrual at the date of decedent’s death.” 173 A.3d at 647
(emphasis added).
[J-86-2022] - 17
death” was obscure to a potential plaintiff due to an act or omission, estoppel principles
compelled tolling the two-year statute of limitations. But the tolling remedy for death
claims was more limited than the broader discovery rule for precisely the same reason—
death invites immediate investigation.51
To be sure, the discovery rule and equitable tolling are conceptually distinct. In
discovery-rule cases, claims accrue only upon discovery of the injury and its cause, while
the equivalent of accrual in death cases happens upon death as a matter of course. But
the statute of limitations will be tolled when the cause of death is obscured by some
affirmative act or omission that lulled the plaintiff into neglecting his or her duty to
investigate to determine whether there was an actionable claim in malpractice.52
That distinction, though, lacks a difference when it comes to the concerns
implicated by the question that this case presents. The discovery rule begins to run upon
the discovery of injury and the prospect that it was caused by malpractice (if not, as
explained immediately above, necessarily whose malpractice). But once the claim
accrues, the clock ticks inexorably, no matter how difficult it may be to trace that injury
back to a tortious act. Even on the broadest available reading of our discovery-rule
jurisprudence, the statute of limitations begins to run—at the latest—once one discovers
an injury, its cause, and an agent of the harm. And there is no assurance that some
51 Pastierik, 526 A.2d at 325-26; see 42 Pa.C.S. § 5502 (relating to the method of
computing limitations periods).
52 See Molineaux, 532 A.2d at 794 (“Where, through fraud or concealment, the
defendant causes the plaintiff to relax his vigilance or deviate from his right of inquiry, the
defendant is estopped from invoking the bar of the statute of limitations.” (cleaned up)).
[J-86-2022] - 18
additional reprieve from the passage of that time will apply where, during the course of
litigation, a second potentially liable party enters the picture.
In death actions, death itself is the watershed event, analogous to satisfying the
discovery-of-injury and tortious-causation requirements relative to the discovery rule. So
it is upon death that any potential claim accrues, triggering a would-be plaintiff’s duty of
inquiry. What follows in either case may be a frustrating, uncertain investigation, which
may yield insufficient evidence of malpractice even where it has occurred. And as noted
in one form above, one of the problems that Reibenstein claims in this case—that
identifying a responsible party may not occur in the discovery process until after the
statute of limitations has run against that responsible party53—may occur in a non-death
case. The fact remains, though, that the triggering event for the discovery rule is the
discovery of injury and the prospect that it was caused by malpractice itself, not the certain
discovery of all responsible parties. Naturally, the average injured party or survivor may
not be equipped to assess quality of care, the presence of treatment alternatives, or other
considerations relevant to the presence or absence of a viable malpractice claim. But the
critical consideration is “inquiry notice” and the duty of diligent inquiry that follows: in most
cases, it is uncertainty or specific concerns, based perhaps on a review of medical records
or the content of interactions with treating health care providers, that will raise a potential
plaintiff’s suspicions. Beyond that, it is likely that further appraisals will require the
involvement of an attorney and/or outside expert review. 54
53 See Reibenstein’s Br. at 9, 35.
54 Justice Mundy maintains that, “[w]hen [concealment or misrepresentation
regarding a legal cause of death] is present, the Majority eliminates the remedy of
equitable tolling.” See Conc. & Diss. Op. at 8 (Mundy, J.). While Justice Mundy is correct
[J-86-2022] - 19
What matters is the point in time at which the injured party or survivor has sufficient
information to recognize that the matter warrants further pursuit. The aim is to ensure
that a veil of total ignorance impenetrable by mere diligent effort does not result in the
loss of a meritorious claim.55 It is not to guarantee that all of the information necessary
to sustain a claim will be gathered in the limitations period that commences upon that
discovery. At some point the clock must run out, lest health care providers remain subject
to liability exposure indefinitely, with the prospect of a trial marred by the death or
diminished memory of material witnesses or the loss of critical evidence. 56 And this
regarding the consequence of this ruling, she imputes responsibility to this Court when it
properly lies with the General Assembly, which chose the language that we interpret. To
the extent that Justice Mundy implies that we eliminate the intended benefit of equitable
tolling, we have no trouble identifying scenarios in which such tolling (and its benefits)
would apply. For example, a provider might misrepresent a medical cause of death to
align with a decedent’s pre-existing medical condition, leading a survivor (or, at least as
importantly, a lawyer or expert reviewing the decedent’s file) to conclude that the death
reflected a natural progression of that known condition. Where that assessment obscures
a true medical cause of death that is less readily reconciled with the decedent’s condition
and presentation at the time of treatment, the misidentification may undermine a
survivor’s inclination to investigate whether negligence contributed to the decedent’s
death, or may lead reviewing professionals to overlook evidence of negligence. Simply
put, the intended benefit of equitable tolling is not rendered illusory merely because the
domain of the remedy is limited.
55 See Pastierik, 526 A.2d at 326 (“Upon the death of an individual, survivors are put
on clear notice thereof, and they have the opportunity to proceed with scientific
examinations aimed at determining the exact cause of death so that a wrongful death
action, if warranted, can be filed without additional delay.”)
56 See, e.g., Johnson v. Stuenzi, 696 A.2d 237, 242 (Pa. Super. 1997) (“The
limitations of actions period represents a balancing of interests between an allegedly
aggrieved party and the alleged wrongdoer. Fairness requires that an individual who
believes he has been wronged have a sufficient period of time to recover from his injury,
if any, investigate the circumstances surrounding a potential claim and decide whether
legal action is warranted. On the other side of the equation, it is recognized that
individuals should not be subjected to claims so remote in time that defending against
them will be greatly hampered and, further, that people should be free to live their lives
[J-86-2022] - 20
increased uncertainty will be priced into malpractice insurance premiums, precisely the
circumstance MCARE was designed to mitigate.57
Reibenstein warns that the narrower account of “cause of death” would encourage
conspiratorial conduct on the part of physicians aiming to conceal their culpability for a
patient death while the clock runs out. This, she argues, would invite plaintiffs
prospectively to sue indiscriminately any physician who treated the decedent in any way
that might be connected to the events leading to death, in direct contravention of the
legislature’s intention to discourage frivolous or overbroad malpractice suits.
For his part, Dr. Conaboy suggests that the Superior Court’s view leads to an
untenable, indefinite extension of the time during which any number of physicians and
their insurers will dangle in limbo regarding their potential liability exposure, owing not
only to the prospect of delay but to questions pertaining to how attenuated the medical
chain of causation might grow.58 Long-delayed suits would remain available indefinitely
without worrying that they will be summoned into court and possibly subjected to civil
liability for events occurring some time ago.”).
57 Justice Mundy’s observation that an equitable tolling exception creates actuarial
uncertainty, regardless of how we interpret the statute, is true as far as it goes. See Conc.
& Diss. Op. at 8 (Mundy, J.). The very idea of pooling risk that animates the insurance
industry makes no sense absent uncertainty. But to observe that no interpretation will
eliminate uncertainty entirely tells us nothing about the degree or duration of such
uncertainty. Our view of the statute decreases the number and duration of lingering
malpractice claims while imposing nothing more upon survivors than the time-honored
duty of diligent inquiry.
58 MCARE was enacted with a seven-year statute of repose that, presumably, was
intended to preclude such suits after seven years, regardless of when the injury or the
concealment of the cause of death was discovered. See 40 P.S. § 1303.513(a). This
Court deemed the statute of repose unconstitutional in Yanakos v. UPMC, 218 A.3d 1214(Pa. 2019), and the General Assembly has yet to enact a substitute provision. Thus, there
remains no statutory limit of any kind upon delayed suits.
[J-86-2022] - 21
to any plaintiff who contends, however tenuously, that a treating physician concealed a
potential legal cause of death such that a duly diligent plaintiff—through no fault of his or
her own—remained unable to identify an available claim or promising line of inquiry. This
path would require only the bare showing necessary to establish a disputed issue of fact,
the low bar for which is evident in the Superior Court’s decision to remand this case for
further examination of the tolling claims based upon Reibenstein’s conclusory allegations
of misconduct, allegations that the trial court roundly rejected for want of supporting
evidence.59 This necessarily enmeshes physicians in a quagmire that agglomerates
determination of medical cause of death, unquestionably their province, with identification
of potential legal causes of death, which is more properly entrusted to the legal system.60
We do not reject entirely the salience of Reibenstein’s claim that limiting the tolling
provision to medical causation will force plaintiffs to cast their nets more widely in
determining whom to sue. But while a plaintiff may at least begin suit against a bevy of
health care providers with writs of summons, the certificate of merit requirement will nip
unsubstantiated threats in the bud, as it evidently did in this case, when Reibenstein was
unable to obtain a certificate of merit against Dr. Conaboy early in this litigation. Plaintiffs
will have an opportunity to conduct timely, rigorous investigations of potential malpractice
actions arising from fatal events, in keeping with MCARE’s objective.
59 See T.C.O. at 4.
60 See Conaboy’s Br. at 17 (“[T]he Superior Court discarded the established medical
procedures for stating what caused death in the death certificate—i.e., the medical
explanation of the order, type, and association of physiological events resulting in death—
and substituted an examination of who caused [Decedent’s] accidental death.”)
(emphasis in original).
[J-86-2022] - 22
Reibenstein also does not account for the availability of pre-complaint discovery.
Since 2007, the Pennsylvania Rules of Civil Procedure have provided for discovery in
furtherance of preparing a complaint, a mechanism that Reibenstein apparently did not
explore in this case. Pursuant to Rule 4003.8, which was adopted in the wake of our
decision in McNeil v. Jordan,61 “[a] plaintiff may obtain pre-complaint discovery where the
information sought is material and necessary to the filing of the complaint and the
discovery will not cause unreasonable annoyance, embarrassment, oppression, burden
or expense to any person or party.”62 This general rule is bolstered by companion
provisions in Pennsylvania Rules of Civil Procedure 4001(c), 4005(a), and 4007(c), which
collectively provide for pre-complaint interrogatories and depositions. Reibenstein could
not have ruled out the prospect that the trial court in its discretion would allow her to seek
such discovery.63 It would be unreasonable to deny Dr. Conaboy the benefit of MCARE’s
statute of limitations merely because Reibenstein failed to investigate Dr. Conaboy’s
putative role in Decedent’s death more diligently.
Reibenstein would have us believe that she never had any chance of identifying
Dr. Conaboy as a proper defendant in this action within the limitations period. But the
facts and circumstances of this case suggest otherwise. Reibenstein’s own complaint
indicates that, in the days before Decedent’s death, at least three physicians, including
61 894 A.2d 1260 (Pa. 2006).
62 Pa.R.C.P. 4003.8(a).
63 Reibenstein herself concedes that “one of the purposes of the well-established
Writ of Summons is to afford litigants the opportunity to properly investigate a case even
after the statute of limitations has passed.” Reibenstein’s Br. at 35.
[J-86-2022] - 23
Dr. Conaboy, examined Decedent.64 Reibenstein clearly was conscious of the possibility
of malpractice, and had no reason at the outset to exclude any of the treating physicians
from her preliminary investigations. Indeed, she “obtained expert review and opinion
regarding the medical care and treatment provided by all health care professionals
identified in [her medical] records.”65 It is true, as Reibenstein emphasizes, that she could
not file a complaint against Dr. Conaboy (or any provider) without first securing a
certificate of merit, and Reibenstein asserts that she sought one unsuccessfully. But this
tells us nothing about the quantum and quality of the information and guidance that she
gave her chosen expert, and, in any event, disregards the alternative course of filing a
writ of summons and seeking pre-complaint discovery.66
Collectively, these considerations leave unclear the reason for the slow progress
of Reibenstein’s investigation; indeed, they highlight what perhaps should have been
perceived as urgency.67 Among other things, we do not know why so much time passed
64 See Complaint at 2-5.
65 Reibenstein’s Br. at 5 (citing 231 Pa. Code Rule 1042.3 (setting forth MCARE’s
certificate of merit requirement)) (emphasis in original).
66 It also confounds the persistent undertone of Reibenstein’s argument that she
lacked cause to investigate Dr. Conaboy until she took Dr. Barax’s deposition.
67 We highlight these concerns to rebut the overarching theme of Reibenstein’s
argument that this case exemplifies the sort of putative injustice that will follow from a
narrow understanding of the term “cause of death.” While the exceptions that the statute
affords to the two-year limitations period are explicitly narrow, and the burden of
establishing those exceptions is weighty, the effect is by no means draconian, especially
when evaluated in light of the competing interest in finality. See Fine, 870 A.2d at 860
(“The plaintiff has the burden of proving fraudulent concealment by clear, precise, and
convincing evidence.”). What is more, the “fraudulent concealment” exception is not
limited to affirmative conduct, inasmuch as “defendant’s conduct need not rise to fraud or
concealment in the strictest sense, that is, with an intent to deceive; unintentional fraud
[J-86-2022] - 24
between the filing of the complaint against Dr. Barax and the conclusion of discovery.
However resistant Dr. Barax may have been, the passage of time was substantial, which
may suggest relative inaction and delay, given what Reibenstein alleges was a flagrant
pattern of obstruction of discovery. One would expect a zealous attorney to seek judicial
intercession when confronted with persistent obduracy, and our law requires nothing
less.68 It is incongruous at best that Reibenstein humored delay in scheduling the
deposition for years before seeking court intervention, especially after she had filed a
or concealment is sufficient.” Molineaux, 532 A.2d at 794 (citing Walters v. Ditzler,
227 A.2d 833 (Pa. 1967); Nesbitt v. Erie Coach Co., 204 A.2d 473 (Pa. 1964)).
68 See Fine, 870 A.2d at 860-61. Instead of addressing her evidently years-long
inaction except in the vaguest of ways, Reibenstein alleges fraudulent and conspiratorial
concealment and misrepresentation by either or both of Dr. Conaboy and Dr. Barax. But
she supports these accusations with, at best, highly attenuated circumstantial evidence.
The trial court expressly rejected Reibenstein’s aspersions as unsubstantiated, a
conclusion that we have no cause to question and that we need not review. See T.C.O.
at 4 (quoting 40 Pa.C.S. § 1303.513(d))(“Applying the law to the facts it is clear there is
no evidence of affirmative misrepresentation or fraudulent concealment of the cause of
death.”). Reibenstein, undeterred, continues to level these accusations before this Court,
commencing oral argument before this Court not with legal analysis but by attacking
Dr. Conaboy’s and Dr. Barax’s integrity:
One thing is clear beyond a reasonable doubt on this record before you: A
physician licensed to practice medicine in the state of Pennsylvania raised
his right hand and lied under oath in an attempt to avoid the consequences
of killing one of their patients. . . . [A] second doctor also lied and/or
conspired with that first doctor to also hide the malpractice that had
occurred.
Oral Argument, Reibenstein v. Barax, 10/26/2021, at 36:50, available at
https://www.youtube.com/watch?v=hkCzYtvSU2U; cf. id. at 47:25 (“I’m not convinced
there wasn’t a conspiracy here.”). It is by no means clear whether the late discovery of
the information upon which Reibenstein would rely in seeking to hold Dr. Conaboy liable
was the product of deliberate individual or concerted actions by Dr. Barax or Dr. Conaboy
or something else entirely. The mere fact of inconsistent sworn testimony does not prove
prevarication. More importantly, this Court is not the venue in which to litigate such
matters.
[J-86-2022] - 25
motion to compel at a much earlier stage upon encountering similar resistance in
response to her written discovery requests.69
Ultimately, the statute requires what it requires. The phrase “cause of death” as
used in MCARE Section 513(d) refers specifically to the medical cause of death. Only an
affirmative misrepresentation or fraudulent concealment of such medical cause of death
will toll the two-year statute of limitations that MCARE prescribes for medical malpractice
claims sounding in survival or wrongful death.70
69 Notably, in Molineaux, supra, this Court declined to find sufficient concealment to
toll the statute of limitations where the defendant hospital’s delay in divulging important
records was a consequence of an error of form in counsel’s request.
70 Justice Dougherty’s Concurring and Dissenting Opinion comprises almost
exclusively observations establishing the uncontroversial proposition—acknowledged
above at length—that the Section 513(d) statute of limitation for death cases, which is
tolled only in the event of fraudulent concealment, differs from the discovery rule, which
tolls the limitations period for negligence cases involving non-fatal injuries. See Conc. &
Diss. Op. at 2-6 (Dougherty, J.). As we explain above, death and non-death cases differ
only in two ways, neither of which precludes drawing a useful analogy between them.
See generally supra at 17-20. The first way they differ is that, in wrongful death cases,
death itself has been deemed sufficient to put a would-be plaintiff on inquiry notice of the
prospect of wrongdoing and to commence the running of the statute of limitations. In non-
death cases, by contrast, inquiry notice and the running of the statute of limitations occurs
when an injury was or could have been discovered by the plaintiff after diligent
investigation. The second distinction, which follows from the qualitative difference
between death and injury that underlies the first, arises because the discovery rule must
address a wider array of obscuring circumstances that might, in the interests of fairness,
reasonably warrant its application, while the limitations period in death cases warrants
tolling only when fraudulent concealment or affirmative misrepresentation obscures the
cause of death and leads a would-be plaintiff to rest rather than investigate the
circumstances of the death—or perhaps prompt an expert or attorney to decline a case
that he or she might examined more closely if the medical cause of death had been
accurately recorded, Our point is that the respective doctrines serve the same core
purpose, for the same general reasons, and do so by the same mechanism—the tolling
of the statute of limitations, whether for equitable or statutory reasons. Both, that is to
say, reflect the judgment that when even diligent inquiry is confounded, relief from the
statute of limitations is due. This analogy between the case law that preceded MCARE
§ 513’s enactment, as informed both by discovery rule and death cases that addressed
tolling, arguably supports the narrow construction of “cause of death” that the statutory
[J-86-2022] - 26
We reverse the Superior Court’s contrary ruling, and we remand for restoration of
the trial court’s grant of summary judgment in Dr. Conaboy’s favor.
Chief Justice Todd and Justice Brobson join the opinion.
Justice Dougherty files a concurring and dissenting opinion.
Justice Mundy files a concurring and dissenting opinion in which Justice Dougherty
joins.
Justice Donohue did not participate in the consideration or decision of this matter.
language itself requires. Notably, Justice Dougherty does not confront the point upon
which we disagree directly: why, strictly as a matter of statutory interpretation, MCARE’s
use of the phrase “cause of death” necessarily incorporates both medical and legal cause
of death. In this regard, he merely reiterates Justice Mundy’s observation that the
narrower view will result in fewer plaintiffs benefitting from equitable tolling, which is likely
correct. See Conc. & Diss. Op. at 7 (Dougherty, J.); Conc. & Diss. Op. at 7-8 (Mundy,
J.). Be that as it may, this consequence reveals nothing more than a policy preference
that the legislature implied in drafting Section 513(d), a preference that is not ours to
displace.
[J-86-2022] - 27