J-A12021-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHRISTOPHER G. YANAKOS, SUSAN : IN THE SUPERIOR COURT OF
KAY YANAKOS AND WILLIAM : PENNSYLVANIA
RONALD YANAKOS, HER HUSBAND :
:
Appellants :
:
:
v. :
: No. 1331 WDA 2016
:
UPMC, UNIVERSITY OF PITTSBURGH :
PHYSICIANS, AMADEO MARCOS, :
M.D. AND THOMAS SHAW-STIFFEL, :
M.D.
Appeal from the Order August 29, 2016
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-15-022333
BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED JULY 26, 2017
Christopher G. Yanakos, Susan Kay Yanakos, and William Ronald
Yanaoks (collectively “Appellants”) appeal from the August 29, 20161 order
entered in favor of Appellees, UPMC, University of Pittsburgh Physicians,
Amadeo Marcos, M.D., and Thomas Shaw-Stiffel, M.D. (collectively
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1
There appears to be an error on the lower court docket, which suggests
that the order granting judgement on the pleadings was filed on July 15,
2016. The order was dated August 29, 2016. Although no Pa.R.C.P. 236
notice was entered on the docket, the September 7, 2016 notice of appeal
may be considered timely. See Pa.R.A.P. 903(a) (providing that notice of
appeal shall be filed within 30 days after entry on the docket of the order
from which appeal is taken); Pa.R.A.P. 108(b) (providing that date of entry
of the order shall be the day on which the clerk makes the notation on the
docket that notice of the entry of the order has been given).
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“Appellees”), following a grant of judgment on the pleadings. After careful
review of the parties’ briefs and the record below, we are constrained to
affirm.
We adopt the following statement of relevant facts and procedure
garnered from the trial court’s opinion, which in turn is supported by the
record.
This matter concerns medical treatment that was
performed in September [] 2003. At said time, [Appellant]
Christopher Yanakos [(“Christopher”)] volunteered to donate a
lobe of his liver to his mother, [Appellant] Susan Yanakos
[(“Susan”)], as she was experiencing problems with her liver
[due to Alpha-1 Antitrypsin Deficiency (“AATD”)][2] and in need
of a donation. [Prior to the surgery, Appellant Christopher
advised Appellee Thomas Shaw-Stiffel, M.D. (“Appellee Shaw-
Stiffel”) that other members of his family had AATD, although
Christopher was unsure whether he too had the disorder. In a
letter of August 2003, Appellee Shaw-Stiffel wrote to Appellee
Amadeo Marcos, M.D., documenting the family history of the
disorder and advising to await additional laboratory test results
before moving forward.] [] [Appellant] Christopher underwent
various evaluations to determine whether his liver would be a
suitable replacement.
[] [Appellants] allege that [days after Appellee Shaw-
Stiffel’s letter in August 2003,] [Appellant]-son Christopher
tested positive for AATD [], establishing that his liver was not
functioning properly. [] [Appellants] further allege that the
existence of AATD disqualified Christopher as a potential donor
and that the liver donation should have never proceeded with
Christopher as the donor.
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2
Alpha-1 Antitrypsin Deficiency (“AATD”) is a genetic disorder, which occurs
when the liver fails to produce sufficient Alpha-1 Antitrypsin, a protein that
protects the lungs from an enzyme which, left unchecked, can attack healthy
lung tissue. Complaint, 12/17/15 at 2-3. This can cause emphysema. Id.
AATD can also cause cirrhosis or liver failure. Id.
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[Appellants] assert that it was not until June [] 2014 when
[Susan again experienced problems with her liver that] they first
discovered that [Appellant]-son Christopher had tested positive
for AATD in the pre-surgery testing in August [] 2003.
[Appellants] further assert that [] [Appellees] maintained this
information in the [Appellant]-son’s file since the testing of
August [] 2003. [] [Appellants’] complaint points to the
aforesaid finding with Christopher’s test results to charge []
[Appellees] with allegations of negligence and lack of informed
consent.
[] [Appellees] vigorously deny the allegations advanced by
[] [Appellants]; denying that [Appellant]-son was not a suitable
donor. Additionally, [] [Appellees] raise the affirmative defense
of the statute of limitations, asserting that any perceived
negligence occurred during 2003, well over the two[-]year
statute of limitations available to [] [Appellants] for their claim
of negligence.
[] [Appellees] recognize the statute of repose and []
[Appellant’s] claim to an extended period of seven [] years to file
suit, but find the effective date applicable in the case sub judice
as March 20, 2002. [] [Appellees] maintain that [] [Appellants]
failed to meet their seven[-]year filing period by more than six []
years. [] [Appellants] filed suit on December 17, 2015, well past
an extended date under the statute of repose of March 20, 2009,
and even more than seven [] years past the date [Appellants]
claim of August 2003.
[In December 2015, Appellants filed a complaint against
Appellees for damages arising out of the incident described
above. In the complaint, Appellants Christopher and Susan both
alleged that their injuries, including decreased pulmonary
functionality, were a result of Appellees’ medical malpractice and
lack of informed consent. Also in the complaint, Susan’s
husband, William Ronald Yanakos, alleged that the Appellees’
negligence resulted in a lack of consortium.] [] [Appellants] filed
their certificates of merit as to the individual doctors and UPMC
[in December 2015]. [] UPMC filed an answer and new matters
[in March 2016], for each individual [Appellee, and Appellants
filed a reply to new matter in May 2016].
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[In July 2016], the [Appellees] filed a motion for judgment
on the pleadings and brief in support. [Appellants filed a
memorandum of law in opposition to Appellees’ motion on the
pleadings and therein argued that (1) the foreign object
exception to the MCARE Act statute of repose creates an
unconstitutional classification of plaintiffs in violation of the equal
protection and due process clauses of the Pennsylvania and
United States Constitutions, (2) the statute of repose
unconstitutionally violates Pennsylvania’s open courts guarantee,
and (3) Appellees owed Appellants a continuing duty of care.]
Following review of the parties’ briefs and [] argument [in
August 2016], [the trial court] granted [] [Appellees’] motion for
judgment on the pleadings.
Trial Court Opinion, 11/3/2016, at 1-3 (unnecessary capitalization omitted).
Appellants timely filed the instant appeal and filed a court-ordered
Pa.R.A.P. 1925(b) statement. The court issued a responsive opinion.
Appellants present the following issues for our review:
1. The MCARE statute of repose violates equal protection
because it makes arbitrary and capricious distinctions between
similarly situated plaintiffs based only on the nature of the
defendant physician’s negligence.
2. The arbitrary nature of the foreign object exception
deprives potential plaintiffs of their right to seek redress for their
injuries in violation of the due process protections of the United
States and Pennsylvania Constitutions.
3. The statute of repose violates the open courts provision of
the Pennsylvania Constitution.
4. The Appellees had a continuing duty to inform Appellants of
the test results. As such, the repose period did not begin until
Appellants discovered the results.
Appellant’s Brief at 4-5 (unnecessary capitalization omitted).
This Court’s standard of review when considering the grant of a motion
for judgment on the pleadings is as follows:
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Entry of judgment on the pleadings is permitted under
[Pennsylvania Rule of Civil Procedure 1034] which provides for
such judgment after the pleadings are closed, but within such
time as not to delay trial. A motion for judgment on the
pleadings is similar to a demurrer. It may be entered where
there are no disputed issues of fact and the moving party is
entitled to judgment as a matter of law. In determining if there
is a dispute as to facts, the court must confine its consideration
to the pleadings and relevant documents. The scope of review
on an appeal from the grant of judgment on the pleadings is
plenary. We must determine if the action of the court below was
based on a clear error of law or whether there were facts
disclosed by the pleadings which should properly go to the jury.
Booher v. Olczak, 797 A.2d 342, 345 (Pa. Super. 2002) (citing Kelaco v.
Davis & McKean, 743 A.2d 525, 528 (Pa. Super. 1999)). “The grant of a
motion for judgment on the pleadings will be affirmed by an appellate court
only when the moving party's right to succeed is certain and the case is so
free from doubt that a trial would clearly be a fruitless exercise.” Swift v.
Milner, 538 A.2d 28, 31 (Pa. Super. 1988) (citation omitted).
Appellants’ first three issues challenge the statute of repose included
in the Medical Care Availability and Reduction of Error Act (“the MCARE
Act”), effective March 20, 2002, which states, in relevant part:
§ 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.
40 P.S. § 1303.513.
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Our Supreme Court has explained the significance of statutes of
repose as follows:
A statute of repose ... limits the time within which an action may
be brought and is not related to the accrual of any cause of
action; the injury need not have occurred, much less have been
discovered. Unlike an ordinary statute of limitations which
begins running upon accrual of the claim, the period contained in
a statute of repose begins when a specific event occurs,
regardless of whether a cause of action has accrued or whether
any injury has resulted.
Abrams v. Pneumo Abex Corp., 981 A.2d 198, 211 (Pa. 2009) (citing City
of McKeesport v. Workers' Compensation Appeal Board (Miletti), 746
A.2d 87, 91 (Pa. 2000) (citations and emphasis omitted)).
Subsection 1303.513(a) of the MCARE Act statute of repose sets forth
a maximum allowable period of time (seven years) to file medical
professional liability claims, and this time period commences on the date of
the act of alleged negligence. Matharu v. Muir, 86 A.3d 250, 263 (Pa.
Super. 2014). Subsection 1303.513(b) of the statute permits the filing of
medical malpractice claims beyond seven years after the date of the alleged
negligence in the case of a foreign object left in a patient’s body. Id. at
265. If the MCARE Act statute of repose is applicable and a claimant does
not meet this exception, all claims pursuant to the alleged negligent action
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are time-barred pursuant to 1303.513(a). Bulebosh v. Flannery, 91 A.3d
1241, 1243 (Pa. Super. 2014).3
In the instant case, the MCARE statute of repose is applicable as the
alleged negligent action, the surgery, occurred in September 2003.
Complaint, 12/17/15, at 5. Appellants filed their complaint in December
2015, over twelve years after the surgery. Accordingly, Appellants’ claims
are time-barred. Nevertheless, Appellants present a series of arguments
challenging the constitutionality of this exception.4
As an initial matter, we note that legislative enactments, such as the
MCARE Act statute of repose, enjoy a strong presumption of
constitutionality. Edmonds by James v. W. Pennsylvania Hosp.
Radiology Assocs. of W. Pennsylvania P.C., 607 A.2d 1083, 1087 (Pa.
Super. 1992). A “party raising a constitutional challenge has a heavy
burden of rebutting the presumption of constitutionality and demonstrating
that the statute clearly, plainly, and palpably violates constitutional
precepts.” Dranzo v. Winterhalter, 577 A.2d 1349 (Pa. Super. 1990).
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3
Subsection 1303.513(c) of the MCARE Act statute of repose also permits
the filing of medical malpractice claims beyond seven years after the date of
the alleged negligence in the case of minor patients. 40 P.S. § 1303.513(c).
4
Appellants asserted before the trial court that the MCARE statute of repose
was inapplicable but have abandoned that argument on appeal. See
Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Judgment on
the Pleadings, 8/22/12016, at 2-13.
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Appellants’ assert in their first claim that the MCARE Act statute of
repose violates the equal protection guarantees of the United States and
Pennsylvania Constitutions, as the foreign object exception, which permits
certain plaintiffs to seek remedy in the courts beyond the normal repose
period, creates a classification that is under-inclusive and prevents similarly
situated plaintiffs from seeking relief. Appellants’ Brief at 17-33. Appellants
do not suggest that any of the liver tissue in the underlying surgeries of
Appellant Susan or Appellant Christopher is akin to foreign objects. Rather,
Appellants’ argue that the exception exists to protect plaintiffs who typically
cannot learn of a negligent act in seven years of diligence. Similarly,
according to Appellants, plaintiffs whose test results are undisclosed cannot
discern negligence within the statute’s outlined timeframe. Id. at 21, 25.
The Fourteenth Amendment to the United States Constitution provides
that no state shall "deny to any person within its jurisdiction the equal
protection of the laws." U.S. Const. amend XIV, § 1. “The equal protection
provisions of the Pennsylvania Constitution[5] are analyzed [] under the
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5
Article 1, § of the Pennsylvania Constitution provides: “All men are born
equally free and independent, and have certain inherent and indefeasible
rights, among which are those of enjoying and defending life and liberty, of
acquiring, possessing and protecting property and reputation, and of
pursuing their own happiness.
Article 1, § 26 provides: “Neither the Commonwealth nor any political
subdivision thereof shall deny to any person the enjoyment of any civil right,
nor discriminate against any person in the exercise of any civil right.”
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same standards used by the United States Supreme Court when reviewing
equal protection claims under the Fourteenth Amendment to the United
States Constitution.” Love v. Borough of Stroudsburg, 597 A.2d 1137,
1139 (Pa. 1991) (citing James v. Southeastern Pennsylvania
Transportation Authority, 477 A.2d 1302 (Pa. 1984)).
We begin an equal protection analysis by determining the type of
interest at issue.
Under a typical fourteenth amendment analysis of governmental
classifications, there are three different types of classifications
calling for three different standards of judicial review. The first
type - classifications implicating neither suspect classes nor
fundamental rights - will be sustained if it meets a “rational
basis” test. In the second type of cases, where a suspect
classification has been made or a fundamental right has been
burdened, another standard of review is applied: that of strict
scrutiny. Finally, in the third type of cases, if “important,”
though not fundamental rights are affected by the classification,
or if “sensitive” classifications have been made, the United
States Supreme Court has employed what may be called an
intermediate standard of review, or a heightened standard of
review.
Southeastern Pennsylvania Transportation Authority, 477 A.2d at
1305-1306 (citations omitted) (some formatting modified).
The MCARE Act statute of repose restricts access to courts. As such,
Appellants argue that strict scrutiny should be applied because access to
courts is a fundamental right. Appellant’s Brief at 20. However, “an
unconditional right of access exists for civil cases only when denial of a
judicial forum would implicate a fundamental human interest—such as the
termination of parental rights or the ability to obtain a divorce.” Abdul-
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Akbar v. McKelvie, 239 F.3d 307, 317 (3d Cir. 2001) (citing M.L.B. v.
S.L.J., 117 S.Ct. 555 (1996); Boddie v. Connecticut, 91 S.Ct. 780
(1971)). “[E]ntitlement to monetary damages for negligence … has never
been held to be a fundamental right under the United States Constitution.”
Kranson v. Valley Crest Nursing Home, 755 F.2d 46, 52 (3d Cir. 1985).
Here, potential victims of medical malpractice such as Appellants who are in
a delayed discovery situation do not represent a suspect class and no
fundamental human interests are at stake.6
Accordingly, the trial court correctly concluded that the appropriate
standard to be applied is the “rational basis” test. A two-step analysis is
required when applying the rational basis test:
First, we must determine whether the challenged statute seeks
to promote any legitimate state interest or public value. If so,
we must next determine whether the classification adopted in
the legislation is reasonably related to accomplishing that
articulated state interest or interests.
Commonwealth v. Albert, 758 A.2d 1149, 1152 (Pa. 2000).
Classifications will be upheld as constitutional if directed towards a legitimate
governmental interest, “in a manner which is not arbitrary or unreasonable.”
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6
Appellants provide no legal support for their alternate contention that
intermediate scrutiny is more appropriate here than a rational basis analysis.
Appellants’ Brief a 21. We note that intermediate scrutiny has generally
been applied to discriminatory classifications based on sex or illegitimacy,
and therefore is inappropriate. See Commonwealth v. Scarborough, 89
A.3d 679, 686 (Pa. Super. 2014) (citing Clark v. Jeter, 108 S.Ct. 1910
(1988)).
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Fischer v. Dep’t of Public Welfare, 502 A.2d 114, 123 (Pa. 1985). “A
classification, though discriminatory, is not arbitrary or in violation of the
equal protection clause if any state of facts reasonably can be conceived to
sustain that classification. Commonwealth v. Albert, 758 A.2d 1149,
1151–52 (Pa. 2000) (citing Federal Communications Commission v.
Beach Communications, Inc., 113 S.Ct. 2096, (1993)).
The Legislature explained that its purpose in enacting the MCARE Act
was “to ensure that medical care is available in this Commonwealth through
a … high-quality health care system,” and to maintain the system through
ensuring that “medical professional liability insurance” was “obtainable at an
affordable and reasonable cost[.]” 40 P.S. § 1303.102(1)-(3). The
declaration of policy also noted the importance of prompt determinations
and fair compensation for individuals injured or killed as a result of medical
malpractice and the need “to reduce and eliminate medical errors” and
“implement solutions to promote patient safety.” Id. at (4)-(5).
The government has a legitimate interest in prompt determinations of
medical negligence and fair compensation to its victims. In the instance
where a foreign object is left in a patient, it is conceivable that commencing
an action may take more time than the seven years generally allotted. The
foreign object exception recognizes and clearly defines a group of patients
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where negligence is implied res ipsa loquitur7, and the passage of time does
little to diminish the evidence underlying the claim. Although Appellants
align themselves with patients in the foreign object classification, the same
observation of the durability of evidence cannot be made in other delayed
discovery cases. Specifically, in foreign object cases, the evidence of the
negligence is nestled within the victim until eventual discovery, whereas, in
other varieties of delayed discovery cases, the passage of time can erode
the credibility of eye-witness testimony, causal relationships, and the
availability of documentation.
The ability to sue in delayed discovery of potential negligence cases
outside of the foreign object classification would expose health care
providers to further liability, undermining the equally legitimate government
interest of keeping medical professional liability insurance affordable for the
benefit of citizens of this Commonwealth, and would do so in a manner that
would likely involve stale evidence:
Statutes of limitations, which are found and approved in all
systems of enlightened jurisprudence, represent a pervasive
legislative judgment that it is unjust to fail to put the adversary
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7
See Fessenden v. Robert Packer Hosp., 97 A.3d 1225, 1232 (Pa.
Super. 2014) (noting Pennsylvania “courts long have cited the proverbial
‘sponge left behind’ case as a prototypical application of res ipsa loquitur”
(citing Jones v. Harrisburg Polyclinic Hosp., 437 A.2d 1134, 1138, n.1
(Pa. 1981) (“[T]here are other kinds of medical malpractice, as where a
sponge is left in the plaintiff's abdomen after an operation, where no expert
is needed to tell the jury that such events do not usually occur in the
absence of negligence.”).
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on notice to defend within a specified period of time and that the
right to be free of stale claims in time comes to prevail over the
right to prosecute them. These enactments are statutes of
repose; and although affording plaintiffs what the legislature
deems a reasonable time to present their claims, they protect
defendants and the courts from having to deal with cases in
which the search for truth may be seriously impaired by the loss
of evidence, whether by death or disappearance of witnesses,
fading memories, disappearance of documents, or otherwise.
U. S. v. Kubrick, 100 S.Ct. 352, 356-57 (1979) (internal citations omitted).
Appellants further assert that the foreign object exception in the
MCARE Act statute of repose is arbitrary and capricious; we disagree. While
this exception may not represent the only scenario in which a potential
medical malpractice victim would experience a delay in the discovery of
negligence, our General Assembly provides a mechanism for fair
compensation to patients who almost presumptively experienced negligence.
Thus, the exception afforded the foreign object class is reasonably related to
the legitimate purpose of ensuring that injuries resulting from medical
negligence are determined promptly and that injured individuals are
compensated fairly. To the extent Appellants argue other exceptions to the
MCARE Act statute of repose should be recognized, that is not for our Court
to decide. Accordingly, we discern no error in the trial court’s conclusion
that the MCARE Act statute of repose does not violate the equal protection
clause.
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Appellants assert in their second claim that the MCARE Act statute of
repose violates the due process protections of the United States and
Pennsylvania Constitutions.8 Appellant’s Brief at 34-40. No relief is due.
The guarantees associated with the due process clause of the federal
constitution are analyzed the same as and are coextensive with those under
the Pennsylvania Constitution. Pennsylvania Game Commission v.
Marich, 666 A.2d 253 (Pa. 1995). Where laws restrict rights protected under
Article 1, § 1, which are not fundamental, Pennsylvania courts apply a rational
basis test. Nixon v. Commonwealth, 839 A.2d 277, 287 (Pa. 2003). To pass
a rational basis test, the law at issue “must not be unreasonable, unduly
oppressive or patently beyond the necessities of the case, and the means which
it employs must have a real and substantial relation to the objects sought to be
attained.” Gambone v. Commonwealth, 101 A.2d 634, 636-37 (Pa. 1954).
Additionally, a statute of repose does not violate due process if the limitation
period is otherwise reasonable. Ciccarelli v. Carey Canadian Mines, Ltd.,
757 F.2d 548, 555 (3d Cir. 1985).
As noted previously, the right of access to courts is not fundamental.
Kranson, 755 F.2d at 52. Further, Appellants’ due process claim must fail
because here the period is reasonable. The seven-year limitations period
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8
The due process clause of the Fourteenth Amendment of the United States
Constitution prohibits a state from depriving an individual of “life, liberty or
property without due process of law.” U.S. Const. amend XIV, § 1.
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balances the Legislature’s initiative to provide affordable, high-quality
healthcare with providing fair compensation to victims of negligence. The
MCARE statute of repose limits the exposure of medical providers; however, in
creating specific exceptions for negligence foreseeably difficult to discover, the
General Assembly promotes fair compensation for negligence victims.
Accordingly, Appellants’ due process rights were not offended.
Appellants also contend that the MCARE Act statute of repose violates
Article I, § 11 of the Pennsylvania Constitution, which guarantees “open
courts” and provides that individuals “shall have remedy by due course of
law, and right and justice administered without sale, denial or delay” for
injuries suffered. Appellants’ Brief at 40-45; see Pa. Const. art. I, § 11.
Our Supreme Court has previously rejected an open courts argument in the
context of statutes of repose, as Section 11 does not prohibit the Legislature
from abolishing a common law right of action without enacting a substitute
means of redress. Freezer Storage, Inc. v. Armstrong Cork Co., 382
A.2d 715, 720 (Pa. 1978); see also Columbia Gas of Pennsylvania, Inc.
v. Carl E. Baker, Inc., 667 A.2d 404, 410 (Pa. Super. 1995). As such, the
trial court properly concluded that the MCARE Act statute of repose was
constitutional.
Lastly, Appellants’ entreat this Court to hold that a physician has a
continuing duty to inform a patient of test results and that the MCARE Act
repose period should begin only upon discovery of the results. Appellant’s
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Brief at 45. We decline to do so. Appellants concede that there is no
precedent in this Commonwealth for the proposed finding but argue that
health care providers undertaking a course of treatment should be obligated
to complete it at the risk of incentivizing failures to disclose. Id. at 45-51.
The cases cited by Appellants in support of this proposition are inapposite,
as they are predicated on a theory of “continuous treatment.” Even if
applicable, this doctrine, unrecognized in Pennsylvania, would be unavailable
to Appellants as they did not assert a continuing relationship with Appellees.
See, e.g., McCullogh v. World Wrestling Entertainment, Inc., 172
F.Supp. 3.d 528, 551 (D. Conn. 2016); Harlfinger v. Martin, 754 N.E.2d
63, 75 (Mass. Supp. Ct. 2001). No relief is due.
Accordingly, Appellants’ arguments failed to circumvent the applicable
MCARE Act statute of repose, where it was undisputed that the alleged
negligence occurred in September 2003, twelve years prior to Appellants’
complaint in December 2015. We discern no error in the trial court’s
decision to enter judgment on the pleadings to Appellees, as a trial would
clearly be a fruitless exercise. Milner, 538 A.2d at 31; Olczak, 797 A.2d at
345.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2017
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Yanakos, C. v. UPMC, University of Pittsburgh
Combined Opinion