Imagine two scenarios. In the first scenario, an individual develops a painful and reddened skin bulge in their abdomen near an old surgical scar. The scar was from surgery performed ten-years in the past. After undergoing an X-ray, the individual learns the painful bulge is a surgical sponge mistakenly left behind during that operation. The sponge is starting to emerge and the patient needs another surgery to remove the sponge completely.
In the second scenario, a hospital fails to do proper testing in a man who donated a liver for transplant into his mother. Proper testing would have revealed the son carried the same rare genetic variance that caused the disease his mother’s doctors were trying to cure with the transplant. Ten years after the transplant, the mother is once again diagnosed with the same rare genetic disease. The disease was passed to her through her son’s donated liver.
Both patients suffered unfortunate injuries as a result of medical malpractice. Assume neither patient knew or suspected their injuries were caused by medical negligence until at least ten years after the occurrence of the negligence at issue.
Statute Of Repose Overturned
Until last Thursday, these two individuals did not enjoy the same right of access to the courts to seek monetary damages for their injuries. Under a law called the Statute of Repose, the mother who underwent transplant with a lobe of liver carrying a genetic defect would be barred from filing a lawsuit because the failure to properly test her son occurred more than seven years before the she discovered she still had the rare genetic disease. On the other hand, the patient in the first scenario would benefit from an exception to the statute of repose for injuries caused by foreign objects left inside a patient’s body. Under that exception, the patient in the first scenario would have two-years to file a lawsuit from the date he discovered the injury, regardless of how many years passed since the sponge was left inside his body.
Both patients faced a situation where it was impossible to know they were injured until more than seven years from the date of the negligent act or omission. Yet, only the patient injured by the surgical sponge left behind can recover compensation for the harm caused by this typically inexcusable mistake. If you think it is unfair for access to justice to depend on whether or not a person’s injury was caused by a foreign object, you are not alone.
Yanakos v. UPMC
On October 31, 2019, the Pennsylvania Supreme Court handed down its opinion in Yanakos v. UPMC and declared Pennsylvania’s statute of repose unconstitutional. The facts in Yanakos are very similar to those in second scenario described in the beginning of this article. In September 2003, Susan Yanakos underwent a liver transplant to cure a genetic condition called Alpha-1 Antitrypsin Deficiency (AATD). Susan’s son, Christopher, volunteered to donate a lobe of his liver to his mother. However, laboratory tests showed Christopher had the same genetic condition as his mother and was not a candidate to donate his liver. Nevertheless, a surgeon went forward with the operation and transplanted a portion of Christopher’s liver into his mother Susan.
Eleven years after the transplant additional testing showed Susan still had AATD, in spite of the donation that should have eliminated the genetic disease from her body.
Before the Court, UPMC argued the statute of response complied with Article I, Section 11 of the Pennsylvania Constitution. The relevant portion of Article I, Section 11 states “[a]ll courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law.”
In order to determine whether the statute of repose was constitutional, the Yanakos court was required to determine the level of scrutiny it should apply to the question. The level of scrutiny is basically the lens through which the Court must assess the constitutionality of a law. The level of scrutiny depends in large part on the nature of the right at issue. Rights the courts determine are “fundamental” are subject to a higher standard of scrutiny to assure those rights are not infringed upon by government action. After analyzing the nature of the right to a remedy at law secured by Article I, Section II, the Yanakos Court decided the right conferred by Article 1, Section 11 was “important” and subject to the intermediate scrutiny test. Under that test, UPMC had the burden to prove to the Court that the statute of repose was “substantially related to achieving an important government interest.”
The Court found UPMC proved the statute of repose was related to the important government’s interest of controlling the rising costs associated with medical insurance and medical care. However, UPMC failed to produce evidence of how the statute of repose actually achieved this government interest. For instance, UPMC argued a statute of repose would provide certainty in the actuarial process of calculating malpractice premiums. Yet, there was no evidence as to how setting the limit of seven years would produce such actuarial certainty. Likewise, there was no evidence any specific time period would have an effect on controlling malpractice insurance costs. In fact, the Court reasoned the statute of repose as written already injected unpredictability into the matter of controlling malpractice insurance rates by reason of its exceptions for foreign objects and actions on behalf of minors. In other words, the exceptions to the statute of repose created uncertainty. The exceptions defeated the very purpose for why the rule was passed.
At the end of the day, the impact of the Yanakos decision on Pennsylvania medical malpractice claims or medical malpractice insurance premiums will likely be more symbolic than anything else. An injury which remains latent and undetectable for more than seven years from the careless or negligent conduct that caused the injury is incredibly rare. Nevertheless, the Pennsylvania Supreme Court rightly recognized the statute of repose would deprive injured people like Susan Yanakos of their constitutional rights to justice without legal justification.
The majority opinion of the Court is available to read by clicking here. A concurring and two dissenting opinions are available to download by visiting the website for the Unified Judicial System of Pennsylvania here.