In 2002, in an effort to affect tort reform, the Pennsylvania legislature enacted the Medical Care Availability and Reduction of Error (MCARE) Act. One of the features of this legislation is the inclusion of a statute of repose that applies to medical malpractice cases. While most people are familiar with statutes of limitations, many are unfamiliar with statutes of repose.
A statute of repose is like a statute of limitations in that both provide a time frame by which a lawsuit must be filed. However, a statute of repose is more rigid in that once a statute of repose expires, the legal cause of action terminates and ceases to exist.
The provisions of the MCARE Act’s statute of repose provide that:
“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.”
Of course, there are exceptions to the statute of repose. Specifically, there are two exceptions within the statute of repose’s general rule that address foreign objects inside an individual’s body and medical malpractice claims on behalf of minors.
In these cases, If the injury is or was caused by a foreign object unintentionally left in the individual’s body, the above limitation does not apply. As to minors, no claim for medical malpractice on behalf of a minor may be filed after seven (7) years from the date of the alleged negligence or after the minor reaches 20 years of age, whichever is later.
If the claim is brought under 42 Pa.C.S. § 8301 or 8302, which relate to death and survival actions respectively, 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.
Thus, the MCARE Act’s Statute of Repose prohibits claims from being brought more than seven years after the injury’s occurrence. This prohibition is separate and unrelated to Pennsylvania’s various statutes of limitations which impose different time deadlines and are subject to distinct exceptions.
The effect of a statute of repose is that even if an injury or its cause is not discovered for a long period after the action or omission initially causing the injury, the time available to assert a claim is limited to seven years from the date of the action or omission.
The MCARE Act’s Statute of Repose is rarely applicable to a legal case but still must always be considered when making any legal analysis of an illness or condition that may have been caused by an incident of professional malpractice occurring in the past.
If you or a loved one has suffered an injury resulting from any type of medical error, contact Powell Law at (570) 961-0777. Our decades of experience make us the clear and obvious choice for all types of legal representation in the Scranton/Wilkes-Barre and surrounding areas. The consultation is FREE, and you don’t pay anything unless we win. Our attorneys, past and present, have represented motor vehicle accident victims for 113 years. Call today!