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The Two Year Statute Of Limitation For Wrongful Death Or Survival Commences On Date Of Death Under The MCARE Act

November 30th, 2017

In Dubose v. Quinlan, 2017 WL 5616235, (Pa., Nov. 22, 2017), the Pennsylvania Supreme Court affirmed the decision of the trial court and the Pennsylvania Superior Court, both of which had held that the statute of limitations for medical professional liability in the form of wrongful death or survival action is two years, commencing on the date of decedent’s death, as opposed to two years commencing on the date that the victim ascertained, or in the exercise of due diligence should have ascertained the fact of a cause of action.   The Supreme Court based its decision on the plain language contained in Medical Care Availability and Reduction of Error Act (MCARE), 40 P.S. Section 1903.513(d), which states:  “If the claim is brought [for wrongful death] or [survival], 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.”  The Court held that this specific statute of limitations for medical professional liability negligence that results in death prevails over the general statute of limitations for personal injuries contained in 42 Pa.C.S. Section 5524(2).

In this case, decedent developed bed sores while a resident at a nursing home.  Medical negligence claims in the form of wrongful death and survival actions were filed more than two years later, but within two years of decedent’s death.  Thus, while the action may have been time barred by the general statute of limitations, it was not barred by the specific statute of limitations contained in the MCARE Act.

Opinion by Justice Mundy.  Justices Todd and Dougherty joined the opinion.  Justice Baer filed a concurring and dissenting opinion.  Chief Justice Saylor filed a dissenting opinion.  Justices Donohue and Wecht did not participate in the consideration or decision of the case.

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