Pennsylvania Supreme Court Rules Medical Malpractice Wrongful Death Lawsuit Filed Too Late

Wrongful Death Lawsuit Filed Too Late: The Supreme Court of Pennsylvania Middle District (“Pennsylvania Supreme Court”) held in its decision dated December 12, 2022 in a medical malpractice wrongful death case in which the medical records of the decedent obscured the reason for her death, “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.”

The Underlying Facts

Decedent Mary Ann Whitman (“Whitman”) consulted with Dr. Patrick D. Conaboy (“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. 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 did not dispute that Whitman’s death certificate correctly identified the rupture as her cause of death.

The plaintiff’s Pennsylvania medical malpractice wrongful death lawsuit alleged that Dr. Barax had misread Whitman’s CT scan, failing to recognize the urgency of her condition. The plaintiff alleged 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 lawsuit.

The plaintiff 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 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. He “further testified that he conveyed to Dr. Conaboy his concerns of a potential rupture.” Based upon this testimony, but over a year after the deposition, on March 1, 2016, the plaintiff filed a new wrongful death and survival action against Dr. Conaboy and his associated practice, which the trial court consolidated with the Dr. Barax action. The new lawsuit was premised upon Dr. Conaboy’s alleged failure to act in light of more detailed information he received in conversation with Dr. Barax.

The Medical Care Availability and Reduction of Error Act (“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. In the medical malpractice wrongful death case the Pennsylvania Supreme Court was deciding, the plaintiff undisputedly brought her claims against defendant Patrick Conaboy, M.D. after the two-year period had run, and the death certificate undisputedly and correctly noted the medical cause of the 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 considerations associated with the manner of death (i.e., legal cause). The Pennsylvania Supreme Court held: “MCARE’s tolling provision cannot bear the breadth of that reading.”

Source Reibenstein, v. Barax, M.D., J-86-2022.

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