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

[J-86-2022] [MO: Wecht, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
LINDA REIBENSTEIN, AS THE : No. 32 MAP 2021
ADMINISTRATRIX OF THE ESTATE OF :
MARY : Appeal from the Order of the
ANN WHITMAN, DECEASED : Superior Court at No. 1624 MDA
: 2019 dated July 30, 2020,
: reconsideration denied October
v. : 5, 2020, Vacating the Order of
: the Lackawanna County Court of
: Common Pleas, Civil Division, at
CHARLES BARAX, M.D.; AND MERCY : No. 2016-01716 dated August
HOSPITAL, SCRANTON : 29, 2019 and Remanding.
______________________________________ :
: ARGUED: October 26, 2021
LINDA REIBENSTEIN, AS THE :
ADMINISTRATRIX OF THE ESTATE OF : RESUBMITTED: November 15,
MARY : 2022
ANN WHITMAN, DECEASED :
:
:
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.
CONCURRING AND DISSENTING OPINION
JUSTICE MUNDY DECIDED: December 12, 2022
I agree that the trial court’s grant of summary judgment should be reinstated.
However, I dissent from the majority’s conclusion that the term “cause of death” as used
in Section 513(d) of MCARE is unambiguous. Section 513 of MCARE provides as follows:
§ 1303.513. Statute of repose
(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.
(b) Injuries caused by foreign object.--If the injury is or was
caused by a foreign object unintentionally left in the
individual’s body, the limitation in subsection (a) shall not
apply.
(c) Injuries of minors.--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.
(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.
(e) Applicability.--No cause of action barred prior to the
effective date of this section shall be revived by reason of the
enactment of this section.
(f) Definition.--For purposes of this section, a “minor” is an
individual who has not yet attained the age of 18 years.
40 P.S. § 1303.513.
Section 513(d) of MCARE establishes a two-year statute of limitations for medical
professional liability claims brought under Pennsylvania’s wrongful death and survival
statutes. See Dubose v. Quinlan, 173 A.3d 634, 648 (Pa. 2017). It also includes a
provision that equitably tolls the statute of limitations in cases of the “affirmative
misrepresentation or fraudulent concealment of the cause of death.” 40 P.S.
§ 1303.513(d). The General Assembly did not define “cause of death,” and the parties
and the lower courts offered reasonable, competing interpretations of the phrase.
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Therefore, in my view, the phrase “cause of death,” in the context of MCARE’s equitable
tolling provision, is ambiguous as it could reasonably (1) refer to solely the medical cause
of death as included on a death certificate or (2) more broadly encompass all the conduct
causing death. See A.S. v. Pa. State Police, 143 A.3d 896, 905-906 (Pa. 2016) (“A statute
is ambiguous when there are at least two reasonable interpretations of the text.”).
The majority’s decision that the phrase means solely the medical cause of death
is based on the phrase’s use in the Pennsylvania Vital Statistics Law and on dictionary
definitions of the phrase. However, the issue in this case is whether the phrase as used
in the context of MCARE’s statute of limitation with an equitable tolling exception carries
the same meaning. As the United States Supreme Court has recognized:
Whether a statutory term is unambiguous, however, does not
turn solely on dictionary definitions of its component words.
Rather, “[t]he plainness or ambiguity of statutory language is
determined [not only] by reference to the language itself, [but
as well by] the specific context in which that language is used,
and the broader context of the statute as a whole.” Robinson
v. Shell Oil Co., 519 U.S. 337, 341 (1997). Ordinarily, a word’s
usage accords with its dictionary definition. In law as in life,
however, the same words, placed in different contexts,
sometimes mean different things.
Yates v. United States, 574 U.S. 528, 537 (2015) (brackets in original) (citations omitted);
accord Roethlein v. Portnoff Law Assocs., Ltd., 81 A.3d 816, 822 (Pa. 2013) (stating “we
should not interpret statutory words in isolation, but must read them with reference to the
context in which they appear.”).
Because courts take a contextual approach to determining the plainness or
ambiguity of statutory language, the majority’s invocation of the Vital Statistics Law’s use
of “cause of death” is not dispositive. The Vital Statistics Law is aimed at defining the
duties of medical professionals, whereas MCARE defines, inter alia, the scope of medical
professional liability and a plaintiff’s ability to bring medical professional liability claims.
[J-86-2022] [MO: Wecht, J.] - 3
Thus, the context for the phrase “cause of death” is different, and the meaning of the
phrase in the Vital Statistics Law does not control its meaning as used in MCARE. See
1 Pa.C.S. § 1932(a) (providing “[s]tatutes or parts of statutes are in pari materia when
they relate to the same persons or things or to the same class of persons or things.”).
Viewing the phrase in the context of MCARE Section 513, I agree with the Superior Court
that “cause of death” as used in Section 513(d) could reasonably mean either the medical
cause of death that appears on a death certificate or the conduct contributing to death.
The statutory text of Section 513(d) refers to and cites 42 Pa.C.S. § 8301, which provides
for wrongful death actions “to recover damages for the death of an individual caused by
the wrongful act or neglect or unlawful violence or neglect of another. . . .” 42 Pa.C.S.
§ 8301(a). From this context, the purpose of a wrongful death action is to provide
compensation to the survivors of an individual who dies because of negligence, and it is
reasonable that the legislature would provide for equitable tolling of the statute of
limitations in cases where the proximate or legal cause of death was affirmatively
misrepresented or fraudulently concealed. Additionally, Section 8301 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.
Further, Brenneman v. St. Paul Fire and Marine Insurance Co., 192 A.2d 745 (Pa.
1963), the case upon which the majority relies for its assertion that “[w]e have long
recognized a material distinction between cause and manner of death,” Maj. Op. at 1,
illustrates the ambiguity the term “cause of death” may carry when it is used in legal
disputes, as opposed to the medical field. Brenneman involved an insurance coverage
dispute in which the insured died in an automobile accident and the insurance company
refused to provide accident coverage based on its conclusion that an underlying health
[J-86-2022] [MO: Wecht, J.] - 4
condition was also a cause of her death. An autopsy of the decedent concluded that she
“died of a hemorrhage in the upper cervical canal and cerebelle fossi, caused by physical
violence to the neck and head.” Brenneman, 192 A.2d at 746. Despite the determination
of the physiological, medical cause of death, the jury in Brenneman was instructed to
determine “whether this accidental bodily injury resulted in the death of [the insured]
independent of other causes, or whether there was a condition of her health which was a
concurrent cause of her death.” Id. Further, the Brenneman Court noted the issue
“[w]hether the bodily disablement or death, which is the subject of inquiry, was caused by
the accident or disease is a matter of weighing the facts which preceded the injury or
death.” Id. at 747. While this may be an imprecise use of the terms “cause of her death”
and “caused by” when the parties were actually disputing the “manner of death,” it
illustrates that the term “cause of death” is susceptible to a broader meaning, particularly
in the legal context.
Because I conclude the phrase “cause of death” in MCARE Section 513(d) is
ambiguous, I proceed to consider the factors outlined in Section 1921(c) of the Statutory
Construction Act to ascertain the General Assembly’s intent:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(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.
[J-86-2022] [MO: Wecht, J.] - 5
(8) Legislative and administrative interpretations of such
statute.
1 Pa.C.S. § 1921(c).
The General Assembly stated the following “occasion and necessity” for the
MCARE chapter, 40 P.S. §§ 1303.501-516, relating to medical professional liability:
§ 1303.502. Declaration of policy
The General Assembly finds and declares that it is the
purpose of this chapter to ensure a fair legal process and
reasonable compensation for persons injured due to medical
negligence in this Commonwealth. Ensuring the future
availability of and access to quality health care is a
fundamental responsibility that the General Assembly must
fulfill as a promise to our children, our parents[,] and our
grandparents.
40 P.S. § 1303.502; accord 40 P.S. § 1303.102 (stating the policies of the MCARE Act).
In this section, the legislature provided it was balancing the purposes of protecting
medical malpractice victims’ rights to a fair legal process and reasonable compensation
with maintaining a system of high-quality health care by controlling the costs of medical
professional liability insurance. Section 513 of MCARE illustrates this balancing by
promulgating a seven-year statute of repose for medical professional liability claims (to
ostensibly control malpractice insurance costs), with exceptions for foreign objects cases
and injuries to minors (to protect certain classes of victims). See Yanakos v. UPMC, 218
A.3d 1214, 1226-27 (Pa. 2019) (invalidating the Section 513(a) statute of repose).
Similarly, Section 513(d) contains a similar balancing, providing a two-year statute of
limitations for wrongful death and survival actions with an exception for cases where the
“cause of death” is affirmatively misrepresented or fraudulently concealed. 40 P.S.
§ 1303.513(d).
By including the doctrine of fraudulent concealment as a means to toll Section
513(d)’s statute of limitations, the General Assembly sought to remedy the mischief of
[J-86-2022] [MO: Wecht, J.] - 6
medical providers whose conduct would prevent reasonably diligent medical malpractice
victims from discovering the cause of death within the statute of limitations period.
The doctrine [of fraudulent concealment] is based on a theory
of estoppel, and provides that the defendant may not invoke
the statute of limitations, if through fraud or concealment, he
causes the plaintiff to relax his vigilance or deviate from his
right of inquiry into the facts. The doctrine 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. The plaintiff has the
burden of proving fraudulent concealment by clear, precise,
and convincing evidence. While it is for the court to determine
whether an estoppel results from established facts, it is for the
jury to say whether the remarks that are alleged to constitute
the fraud or concealment were made.
Fine v. Checcio, 870 A.2d 850, 860 (Pa. 2005) (citations omitted). Additionally, a plaintiff
invoking the doctrine of fraudulent concealment retains the responsibility “to be
reasonably diligent in informing himself of the facts upon which his recovery may be
based.” Id. at 861. This means “a statute of limitations that is tolled by virtue of fraudulent
concealment begins to run when the injured party knows or reasonably should know of
his injury and its cause.” Id.; accord Rice v. Diocese of Altoona-Johnstown, 255 A.3d
237, 253 (Pa. 2021) (stating “[u]nder our jurisprudence, before a plaintiff may invoke the
principles of fraudulent concealment, the plaintiff must use reasonable diligence to
investigate her claims[,]” and finding the statute of limitations accrued when the plaintiff
knew she was injured).
Limiting the equitable tolling of the statute of limitations based on a defendant’s
fraudulent concealment or affirmative misrepresentation to only those cases in which a
defendant conceals the medical cause of death would leave unprotected medical
malpractice victims who exercise reasonable diligence in investigating the cause of death
but cannot discover the malpractice resulting in death because the medical professional’s
conduct interferes with the survivor’s investigation. See 1 Pa.C.S. § 1921(c)(6) (directing
[J-86-2022] [MO: Wecht, J.] - 7
us to consider the “consequences of a particular interpretation”). Even though death is a
definite event that puts survivors on inquiry notice, when a medical professional obstructs
a reasonably diligent survivor’s subsequent inquiry into the cause of death, the legislature
intended that the statute of limitations be tolled to protect the victims of medical
malpractice. See Pastierik, 526 A.2d at 326-27 (reasoning death is a unique injury that
immediately puts survivors on inquiry notice). Most concerning, limiting “cause of death”
to the constrained definition of medical cause of death as listed on a death certificate,
undermines the statute’s inclusion of the remedies of affirmative misrepresentation and
fraudulent concealment. Under the reasoning of the Majority, a decedent who dies from
a cardiorespiratory failure and whose death certificate states cardiorespiratory failure as
the medical cause of death would be precluded from utilizing affirmative
misrepresentation or fraudulent concealment when the cardiorespiratory failure was
caused by inappropriate care rendered by a medical professional. For instance, survivors
of a decedent whose identified medical cause of death was medically accurate would be
precluded from invoking affirmative misrepresentation or fraudulent concealment if they
later discovered that the death was the result of negligent treatment instead of the natural
progression of the decedent’s condition. By including affirmative misrepresentation and
fraudulent concealment in Section 513(d) as means to equitably toll the statute of
limitations, I believe the legislature intended to give plaintiffs a remedy in cases where the
medical cause of death was accurately reported on the death certificate, but the legal
cause of death was affirmatively misrepresented or fraudulently concealed. In this case,
the lack of affirmative misrepresentation or fraudulent concealment makes the issue more
difficult to conceptualize, but when that conduct is present, the Majority eliminates the
remedy of equitable tolling.
[J-86-2022] [MO: Wecht, J.] - 8
Also, limiting “cause of death” to the medical cause of death does not further the
purpose of controlling malpractice insurance costs. A two-year statute of limitations with
an equitable tolling exception for a concealment or misrepresentation introduces an
element of actuarial uncertainty into medical malpractice insurance premium costs,
regardless of how we interpret “cause of death.” Therefore, in my opinion the legislature
included the equitable tolling provision to protect the rights of plaintiffs in wrongful death
and survival actions arising from medical malpractice. Consonant with this purpose, the
statute of limitations should be tolled when a defendant’s conduct interferes with a
reasonably diligent survivor’s investigation into the cause of death by affirmatively
misrepresenting or fraudulently concealing either the medical cause of death or the
conduct the survivor alleges led to the decedent’s death.
Because I would find “cause of death” as used in Section 513(d) of MCARE is
ambiguous and I interpret it as including the conduct leading to death, as well as the
medical cause of death, I agree with that portion of the Superior Court’s decision.
However, I disagree with the Superior Court that this case should be remanded to the trial
court. As set forth above, the doctrine of fraudulent concealment holds that a defendant
is estopped from invoking the statute of limitations when the defendant’s conduct causes
the plaintiff to deviate from conducting a factual inquiry. Fine, 870 A.2d at 860. To invoke
the doctrine, the plaintiff has the burden of proving fraudulent concealment and must also
exercise reasonable diligence in investigating the facts before turning to the doctrine. Id.;
Rice, 255 A.3d at 253. Ultimately, the question of whether fraudulent concealment arises
from the facts is a question of law for the court. Fine, 870 A.2d at 860 (stating “[w]hile it
is for the court to determine whether an estoppel results from established facts, it is for
the jury to say whether the remarks that are alleged to constitute the fraud or concealment
were made.”).
[J-86-2022] [MO: Wecht, J.] - 9
Based on the record in this case, it is clear Reibenstein failed to exercise
reasonable diligence and none of the conduct of Conaboy or Barax caused her to deviate
from her inquiry into the facts. Significantly, Reibenstein admitted that her decision to not
pursue claims against Conaboy was based on her inability to obtain a certificate of merit
after her experts examined the Decedent’s medical records. Reibenstein’s Brief at 6.
Those medical records included the April 23, 2010 radiology report, which showed the
presence of a “poorly visualized” abdominal aortic aneurysm and stated that “Dr. Conaboy
was contacted with this study [and] was read with the findings.” Radiology Report of
Decedent, 4/23/10, at 2. This radiology report put Reibenstein on notice of Dr. Conaboy’s
involvement in the treatment that led to Decedent’s death, and Reibenstein has not
established how the report itself was fraudulently concealed or otherwise contained
affirmative misrepresentations. As Reibenstein does not point to any actions she took to
investigate Conaboy’s role, she cannot meet the reasonable diligence component of the
fraudulent concealment doctrine and a remand would be inappropriate. Where a plaintiff
fails to diligently pursue a potential claim, she is precluded from equitably tolling the
applicable statute of limitations through the doctrines of fraudulent concealment or
affirmative misrepresentation. See Rice, 255 A.3d at 244.
For these reasons, I concur in the result only and dissent as to the majority’s
interpretation of Section 513(d).
Justice Dougherty joins this concurring and dissenting opinion.
[J-86-2022] [MO: Wecht, J.] - 10