Annual Update of the Law

1. Presented by: Clifford A. Rieders, Esq. Annual Update of the Law Lycoming Law Association May 15, 2013 Holiday Inn, 100 Pine Street, Williamsport, PA Rieders, Travis, Humphrey, Harris, Waters, Waffenschmidt& Dohrmann 161 West Third Street Williamsport, PA 17701 Phone: 570-323-8711 Fax: 570-567-1025 Email: crieders@riederstravis.com www.riederstravis.com

2. Emotional distress By: Clifford A. Rieders, Esq.

3. Weiley v. albert einstein medical center51 A.3d 202 (Pa.super 2012)bender, j. • Son sued hospital, school and funeral home after hospital transferred his father’s body to school where the body was dissected. • Son was family member authorized to dispose of body; • hospital knew son did not want organ donation or dissection; and • hospital transferred body without obtaining son’s consent. Weiley, 51 A.3d at 213. By: Clifford A. Rieders, Esq.

4. Weiley v. albert einstein medical center51 A.3d 202 (Pa.super 2012)bender, J. • Son alleged sufficient facts to support claim for Tortious Interference with a Dead Body against hospital (but not school or funeral home). A fact finder could find as follows. • Despite knowledge that son did not want organ donation or dissection, hospital transferred body to school without contacting son or obtaining consent. • Hospital was “substantially certain” that son would “suffer serious emotional distress, sufficient for the “intentional” portion of section 868.” • “This conduct could be viewed as a wanton mistreatment of the body.”Weiley, 51 A.3d at 213. By: Clifford A. Rieders, Esq.

5. Weiley v. albert einstein medical center51 A.3d 202 (Pa.super 2012)bender, J. • Trial court erred by concluding the that Weiley failed to assert sufficient facts to support his cause of action against Hospital for interference with a dead body. • Weiley pled sufficient facts to support his claim against Hospital for wanton mistreatment and intentional transfer or operating on a body without privilege. • Weiley failed to plead any facts to establish that the School or John Doe’s conduct was wanton or intentional as would support a claim for interference with a dead body. By: Clifford A. Rieders, Esq.

6. Weiley v. albert einstein medical center51 A.3d 202 (Pa.super 2012)bender, J. • School has immunity under the Pennsylvania Anatomical Gift Act. • Funeral home did not fail to make a good faith effort to learn that this was an unauthorized transfer and had not obligation to see-out Weiley. • Weiley has not pled a claim for international infliction of emotional distress against any defendant because he was not present when the allegedly tortious conduct that caused the serious mental distress occurred. By: Clifford A. Rieders, Esq.

7. Negligence issues By: Clifford A. Rieders, Esq.

8. Keffer v. Bob Nolan’s Auto Service, Inc. 59 A.2d 621 (Pa. Super. 2012)stevens, p.j. • Van rear-ended tow truck as it turned into median strip turn-around for emergency and authorized vehicles to make a U turn. Van crossed median, struck the guardrail rolled over and trapped driver inside, sustaining serious injuries. • Coordinate jurisdiction rule did not preclude trial judge from properly deciding as a matter of law that the tow truck was authorized under the circumstances to use the median opening. Previous denial of motion for partial summary judgment did not decide issue of what constitutes an “authorized vehicle” when it evaluated whether conduct warranted punitive damages. • Tow truck driver was not negligent, his employer was not liable for negligent training of driver; auto club not vicariously liable or negligent. By: Clifford A. Rieders, Esq.

9. LONGWELL V. GIORDANO57 A.3d 163 (Pa.super 2012)STRASSBURGER, J. • Tenant sued landlord and contractor after a slip and fall on asphalt pavementwhere his shoe caught the edge of a drop-off. • Court applied Restatement (Second) of Torts § 360, Parts of Land Retained in Lessor’s Control Which Lessee is Entitled to Use. • Comment b provides in part: “the lessor remains liable to him notwithstanding his knowledge of the existence of the condition.” • Court could not say “as a matter of law that a reasonable man would regard it as foolhardy to walk along the … driveway at night knowing that the area was poorly lit and that there was a drop off,” nor that tenant failed to exercise reasonable care. • Genuine issue of material fact exists. Longwell, 57 A.3d at 168-169 By: Clifford A. Rieders, Esq.

10. LONGWELL V. GIORDANO57 A.3d 163 (Pa.super 2012)STRASSBURGER, J. • Court noted that “[t]he risk must be perceived, and the risk must be faced voluntarily.” Longwell, 57 A.3d at 170 (citation for quote omitted)(emphasis added by Court) for assumption of the risk to apply. • The doctrine did not bar recovery. Even though the tenant was aware that “the drop-off posed a threat,” “he could not see the drop-off,”” was mistaken as to where” it was and “thought he left a margin of error.” • The court concluded that the tenant “subjectively saw himself as avoiding harm.” Id. (emphasis by court) By: Clifford A. Rieders, Esq.

11. LONGWELL V. GIORDANO57 A.3d 163 (Pa.super.2012)STRASSBURGER, J. • The pavement contractor did not owe a duty to the tenant. • Under the Restatement (Second) of Torts § 385, the contractor’s work would have had to make a dangerous condition “in a manner unlikely to be discovered by the possessor[.]” • The landlord was aware of the drop-off both before and after the contractor paved the driveway. By: Clifford A. Rieders, Esq.

12. Boyle v. erie insurance exchange50 A.3d 1256 (Pa. 2012)JUSTICE eakin • An uninsured motorist negligently crashed his car during a hurricane. While responding to the scene, a volunteer firefighter drove over a bridge that collapsed, suffering severe injuries. • Rescuer used appropriate care in responding, did not act “rashly nor had he unnecessarily exposed himself to danger.” • Rescue doctrine did not impose liability on uninsured motorist for damages from bridge collapse which was superseding cause; disapproving Superior Court cases to the contrary. By: Clifford A. Rieders, Esq.

13. Boyle v. erie insurance exchange50 A.3d 1256 (Pa. 2012)JUSTICE eakin • The question in arbitration for underinsurance motorist benefits is whether the rescue doctrine allows a volunteer firefighter responding to a crash to recover his underinsured motorist benefits in spite of a finding that his injuries were the result of a superseding cause, a bridge collapse. • The rescue doctrine provides that it is not contributory negligence for a plaintiff to expose himself to danger in a reasonable effort to save a third person or the land or chattels of himself or a third person from harm. Thus the rescue doctrine permits injured rescuers to recover when their recovery would otherwise be barred by the strict application of the defense of contributory negligence. By: Clifford A. Rieders, Esq.

14. Boyle v. erie insurance exchange50 A.3d 1256 (Pa. 2012)JUSTICE eakin • The next question is whether the rescue doctrine bars application of the principal of superseding causes: that is, is a tortfeasor liable for all injuries a rescuer suffers during the rescue, even when the injuries are caused by an unforeseeable superseding cause? • We hold the rescue doctrine will not make an original tortfeasor liable for injuries attributable to a superseding cause and we disapprove of any language to the contrary in Superior Court cases. By: Clifford A. Rieders, Esq.

15. Boyle v. erie insurance exchange50 A.3d 1256 (Pa. 2012)Justice eakin • The rescue doctrine establishes a causal link between “the tortfeasor and the rescuer’s injury” because it is reasonable that a rescuer may be injured while rendering aid. • But, tortfeasor is not a guarantor of the rescuer’s safety. • “[H]arm that is not reasonably foreseeable is not the responsibility of the tortfeasor.” • Bridge collapse was superseding cause; It was “not reasonable to foresee a bridge more than three miles away, on the rescuer’s own property, would collapse and injure” the rescuer. Bole, 50 A.3d at 1260-1261. (citations omitted) By: Clifford A. Rieders, Esq.

16. Mirabel v. Morales, 57 A.3d 144 (Pa.Super. 2012)Panella, J. • As a passenger on a bus, plaintiff sustained injuries from the bus collision with a van. Jury awarded damages. Superior Court Granted a new trial. • Jury instruction on choice of ways doctrine (which still exists despite comparative negligence) was not supported by evidence. • Choice of ways doctrine requires 1) safe course 2) dangerous course and 3) facts which put reasonable person on notice or actual knowledge of danger. In this case there was not evidence that proceeding straight was free of obstruction and would have been safe. By: Clifford A. Rieders, Esq.

17. Mirabel v. Morales, 57 A.3d 144 (Pa.Super. 2012)Panella, J. • The doctrine states for a person having the choice of two ways, one which is perfectly safe, and the other of which is subject to risks and dangers, voluntarily chooses the latter and is injured, is guilty of contributory negligence and cannot recover. By: Clifford A. Rieders, Esq.

18. Mirabel v. Morales, 57 A.3d 144 (Pa.Super. 2012)Panella, J. • The doctrine applies in the following circumstances • 1. No evidence established that proceeding straight down Cumberland was a safe alternative. • 2.Rather there must be evidence establishing that Cumberland was free of obstructions that would allow Schulgen to proceed safely down it. • 3. The jury instruction probably misled the jury because it implied the availability of a safe alternative, one not established by evidence which may have affected the jury’s calculus when determining liability. By: Clifford A. Rieders, Esq.

19. Mirabel v. Morales, 57 A.3d 144 (Pa.Super. 2012)Panella, J. • Discussing wealth and size of Comcast in closing was reversible error. • Jury instruction on choice of ways doctrine was not supported by evidence. By: Clifford A. Rieders, Esq.

20. Negligence – PUBLIC UTILITIES By: Clifford A. Rieders, Esq.

21. Alderwoods (pennsylvania) v. duquesne light52 A.3d 347 (Pa.super. 2012)musmanno, J. • After vehicle crashed and broke a utility pole, the Electric Company restored service to the pole. It then connected a building and energized the connectors. Then it turned on power to the building. Soon afterwards, a fire began in an electrical panel in a locked basement of that building. • Citing Wivagg v. Duquesne Light Co., 73 D.& C.2d 694 (Allegheny Co. 1975)court agreed it is foreseeable that “when a primary line breaks loose and contacts low-voltage lines, the customer’s electrical equipment can be shorted out and compromised. By: Clifford A. Rieders, Esq.

22. Alderwoods (pennsylvania) v. duquesne light52 A.3d 347 (Pa.super. 2012)musmanno, J. • The Althaus test for duty weighs five factors: • 1. the relationship between the parties; - favored plaintiff • 2. the social utility of the conduct; - slightly favored Plaintiff • 3. the nature of the risk imposed and the foreseeability of the harm incurred; - favored plaintiff • 4. consequences of imposing a duty; • 5. public interest. By: Clifford A. Rieders, Esq.

23. Alderwoods (pennsylvania) v. duquesne light52 A.3d 347 (Pa.super. 2012)musmanno, J. • Not utility’s practice to enter property and inspect equipment. Expert opined that had they done so, the prior to reenergizing the single phase service would have revealed the electrical damages …” • Duty to inspect of at a minimum warn the customer, under the facts alleged, does not place an undue burden upon the electric company. • The only building attached to the broken pole; • Public interest: does not tip scales either way: safe manner, prompt restoration of service. • Causes of action sounding in negligence: duty, breach of duty, breach caused damages. By: Clifford A. Rieders, Esq.

24. State Farm Fire & Cas.Co. v. PECO54 A.3d 921 (Pa.Super. 2012)shogan, j. • Homes damaged from “dangerous and defective” surge which came from a bolt of lightening and struck PECO facility. Insurer as subrogee sued. • Rule 12.1 of PECO’s Public utility Tariff was an exculpatory clause that limited its liability. Court concluded exculpatory clause was not against public policy because it did not exempt them from all liability it only limited liability. • Rule 12.1 did not apply to strict liability because it was limited to harm which is or is not foreseeable. • An action still exists because there was no disclaimer of an action for strict liablility. By: Clifford A. Rieders, Esq.

25. Arbitration – nursing homes By: Clifford A. Rieders, Esq.

26. Setlock v. Pinebrook Personal Care 56 A.3d 904 (Pa.Super. 2012) Mundy, J. • Personal care retirement center transported its resident to her doctor appointment by one of its assistants in one of the retirement center’s wheel chairs. The wheel chair did not have a footrest in place, despite it originally having one. • As the assistant pushed resident through the medical offices, she told the resident to “lift her feet” because there was no foot rest. Resident told assistant to be careful, apparently unable to lift her feet. No safety harness or similar device was used . • Resident’s feet became entangled, catapulting her through the air, landing on her head and face while striking the floor. She suffered severe injuries which required hospitalization and ultimately killed her. By: Clifford A. Rieders, Esq.

27. Setlock v. Pinebrook Personal Care56 A.3d 904 (Pa.Super. 2012) Mundy, J. • Court refused to compel arbitration because the “wrongful death action is a distinctly different cause of action from anything contemplated by the terms of the residential agreement[.]” • “[A]rbitrationagreements are to be strictly construed and such agreements should not be extended by implication.” • Agreement provided for center assistance for visits to a physician, provided rates for that assistance and provided for arbitration for any dispute arising from the contract. • Nothing in the contract provided for medical careor distinguished between on or off premises. • Payment schedule for transporting residents does not encompass all claims sounding in tort that arise from transportation. By: Clifford A. Rieders, Esq.

28. Medical malpractice By: Clifford A. Rieders, Esq.

29. Thierfelder v. Wolfert 52 A.3d 1251 (Pa. 2012) CHIEF JUSTICE Castille • A general practitioner who provided some “incidental mental health treatment” to patient had no duty to refrain from sex with patient; that “higher standard” of duty was limited to mental health specialists. • Husband and wife sought treatment from general practitioner for “libido problems.” • Wife was also treated for depression, anxiety, stress, add, and other emotional problems. By: Clifford A. Rieders, Esq.

30. Thierfelder v. Wolfert 52 A.3d 1251 (Pa. 2012) CHIEF JUSTICE Castille • Doctor and patient - wife engaged in a year long consensual sexual relationship which began after wife considered doctor to be her hero and to have “cured” her. • Court accepted for purposes of its decision that mental health specialists would owe a duty to refrain from sexual contact with their patients and that Pennsylvania’s Medical Practice Act of 1985, §§422.1-422.5a “does not support concept of different duties for physicians who provide the same care.” • Transference phenomenon is therapeutic model for mental health specialists which they know or should know makes patients particularly vulnerable to sexual exploitation. • General practitioners increasingly advise on mental health and prescribe medication for emotional conditions but do not provide the kind of therapeutic treatment provided by a mental health specialist which includes transference. By: Clifford A. Rieders, Esq.

31. Catlin v. Hamburg 56 A.3d 914 (Pa.Super. 2012) Olson, J. • Negligent sterilization resulted in fetus with congenital abnormalities at 19 ½ weeks which was voluntarily terminated and resulted in total hysterectomy. • An Expert, board certified in obstetrics and gynecology since 1978, testified that “standard of care requires that when a surgical technique is seen to fail during a surgery, or when a more secure technique is available to accomplish the same goal, then the surgeon should perform the more secure and safer surgical procedure.” • Essentially since the Filshie clip on right fallopian tube slipped prompting the performance of a modified Polmeroy procedure, the same should have been done on the left fallopian tube but was not. By: Clifford A. Rieders, Esq.

32. Catlin v. Hamburg 56 A.3d 914 (Pa.Super. 2012) Olson, J. • That expert’s failure to cite medical literature did not render his opinion inadmissibleor speculative. • The expert opinion was not required to rule out all conceivable causes of the pregnancy, which goes to weight of evidence. • Also trial court erred in limiting damages to 2 week postnatal period because there was no birth in this case; it was error to equate situation to wrongful birth. By: Clifford A. Rieders, Esq.

33. Buckman v. Verazin54 A.3d 956 (Pa. Super. 2012)Bender, J. • Patient brought Medical malpractice claim after undergoing signoid colectomy and colostomy. • Discovery revealed conflicting statements by the physician as to why he performed the surgery in the manner he did. • As a result, plaintiff submitted discovery request for the medical records of all sigmoid colectomy and similar procedures by doctor in five preceding years, allowing for the redaction of all identifying information of the non-party patients. By: Clifford A. Rieders, Esq.

34. Buckman v. Verazin54 A.3d 956 (Pa. Super. 2012)Bender, J. • Superior Court reversed the granting of the motion to compel because the inquiry was not relevant. Doctor’s actions when operating on other patients was not probative of what his actions were when caring for this patient. • What the doctor “knew or believed to be the standard of care is of no moment” and was only intended to counter doctor’s erroneous employment of the “error in judgment” rule as defense. • Court reiterated that the standard of care is objective and either met or not. It “does not allow consideration of the subjective state of mind of the doctor when he or she undertakes to treat a patient.” By: Clifford A. Rieders, Esq.

35. Saylerv. Skutches40 A.3d 135 (Pa.Super. 2012)Ott, J. • This case involved the calculation of attorney fees where the plaintiff suffered a delay in breast cancer diagnosis and without access to funds from judgment on appeal lacked access to further treatment pending appeal and died approximately a year and four months after the jury award but prior to appellate review. • § 509 only refers to attorney fees by stating that “future damages for medical or other related expenses shall be paid as periodic payments after payment of the proportionate share of counsel fees and costs based upon the present value of the future damages awarded pursuant to this subsection.” (emphasis by the court) 40 P.S. 1303.509(b)(1). • Court held that § 509 of the MCARE Act, 40 P.S. 1303.509, did not authorize additional attorney fees and that the attorney fees are calculated based on the present value of the patient’s future damages at the time of death rather than on the potential award. Appeal Denied by Pennsylvania Supreme Court at 54 A.3d 349 (Pa. Oct 05, 2012) (Table, NO. 360 MAL 2012). • The “American Rule” precludes recovery of attorney fees from the adverse party “unless there is express statutory authorization, a clear agreement of the parties, or some other established exception.” (citation omitted) By: Clifford A. Rieders, Esq.

36. Saylerv. Skutches40 A.3d 135 (Pa.Super. 2012)Ott, J. • A significant fact in Saylor was that the plaintiff died prior to the calculation of attorney fees. As a result, liability for future damages already terminated pursuant to 40 P.S. 1303.509(b)(3). • Under those circumstances, the court viewed attorney fees based on future damages as an addition to the jury award, requiring express statutory authorization. • In many cases, however, the question of when the future damages will terminate remains unknown at the time of the attorney fee calculation. Attorney fees based upon a percentage of this unknown amount can be viewed as a percentage of the jury award rather than as an additional cost imposed upon an adverse party. By: Clifford A. Rieders, Esq.

37. Saylerv. Skutches40 A.3d 135 (Pa.Super. 2012)Ott, J. • The court did not discuss the potential for conflict of interest (See my commentary for JICIV §14.150) between attorneys and plaintiffs nor the authority from other jurisdictions which analyzed similar medical malpractice statutes. • Court’s conclusion is said to be consistent with the declaration of MCARE Act “to limit jury awards in medical malpractice suits in order to ensure affordable health care premiums.” • No consideration of incentivizing defendants to delay treatment pending appeal expediting death of patient prior to entry of judgment, as occurred in this case. By: Clifford A. Rieders, Esq.

38. Anderson v. mcafoos57 a.3d 1141 (pa. 2012)saylor, j. • Medical malpractice lawsuit was filed in February 2002; • Three months later MCare Act came into effect with §512 requirements for expert witness competency. • In 2005, Plaintiff submitted expert report and curriculum vitae and a case management order in 2007 required the exchange of expert reports and pretrial motions by a certain date. No party raised issues of competency under §512. • At trial in 2008, after a voir dire of the expert pathologist, defense objected to competency of the pathologist to testify as to standard of care under §512. By: Clifford A. Rieders, Esq.

39. Anderson v. mcafoos57 a.3d 1141 (pa. 2012)saylor, j. • Plaintiff failed to preserve issues for review. • Since Plaintiff did not think §512 applied to the case which was filed before it became effective, the voir dire was not framed to address the “related-fields-of-medicine focus” of that section. • Plaintiff failed to raise the argument that the defendants waived objection by not following local rule requiring “unusual questions of evidence, factor or law be dealt with prior to trial. • There is “no general requirement that an objection to a proposed expert’s qualifications under Mcare Act be made prior to voir dire. • Dissent suggests civil rules committee should consider a remedy for surprise disqualifications of experts did not usually occur under the more liberal expert qualifications outside of the Mcare Act. By: Clifford A. Rieders, Esq.

40. Cooper ex rel Cooper v. Lankenau Hosp. 51 A.3d 183 (Pa. 2012) BAER, J. • Patient alleged medical battery for Cesarean section after twenty-seven weeks of pregnancy despite patient’s refusal of consent. • In a medical battery/lack-of-consent case, plaintiff need not prove any intent to harm the patient. Proving an intention surgery or “touching” satisfied the “offensive contact” element. • Court concluded that the jury instruction was acceptable, but suggested that the Committee for Proposed Standard Jury Instructions to consider clearer instructions, which it did. By: Clifford A. Rieders, Esq.

41. Seebold v. Prison Health Services57 A.3d 1232 (Pa. 2012) JUSTICE Saylor • Corrections officer who became infected with MRSA after contact with inmate brought claim against physician for negligent failure to warn of inmates communicable disease. • Court held that a physician who treats prison inmate has no duty to warn corrections officers of inmates communicable disease. • Court stated that the “general touchstone” is the applicable standard of care. “[T]hird-party interventions on the part of physicians push the inquiry outside these ordinary boundaries.” By: Clifford A. Rieders, Esq.

42. Scampone v. Highland Park Care Center 57 A.3d 582 (Pa. 2012) CHIEF JUSTICE Castille • Jury verdict found nursing home facility was both corporately and vicariously liable for resident’s death. • Staff failed to conduct ordered DUI testing, to ensure that the resident was consuming sufficient fluids and food, and falsified records to show that medications or treatment were provided when it was not. • The administrators temporarily increased staff for state inspections. • Despite significant symptoms, the resident was denied nursing care for nineteen days before she died. • Dehydration and malnutrition caused resident’s fatal heart attack. By: Clifford A. Rieders, Esq.

43. Scampone v. Highland Park Care Center 57 A.3d 582 (Pa. 2012) CHIEF JUSTICE Castille • Superior Court remanded for new trial; Pa Supreme Court affirmed, remanded and held “that a nursing home and affiliated entities are subject to potential direct liability for negligence, where the requisite resident-entity relationship exists to establish that the entity owes the resident a duty of care[.]” • “[A] corporation may owe duties of care directly to a plaintiff separate from those of its individual agents, such as duties to maintain safe faciilities, and to hire and oversee competent staff.” By: Clifford A. Rieders, Esq.

44. Scampone v. Highland Park Care Center 57 A.3d 582 (Pa. 2012) CHIEF JUSTICE Castille • That a corporation acts through agents does not preclude “hailing a corporation into court on direct liability tort claims.” • There is no immunity or exemption from direct liability, which is an exception to “the general rule that an entity must meet the obligations it incurs in functioning.” Court declined invitation to recognize a judicial immunity for nursing homes. By: Clifford A. Rieders, Esq.

45. Scampone v. Highland Park Care Center 57 A.3d 582 (Pa. 2012) CHIEF JUSTICE Castille • Rejected argument that Thompson created a corporate cause of action only against hospitals. • Inquiry is not whether an entity is similar to a hospital. • “The relevant question is whether the legal principles explicated in Thompson, or elsewhere in our decisional law, apply to describe appellants’ legal duty or obligations to Ms. Scampone, given the considerations which pertain.” 57 A.3d 605. • In essence the question is whether there was sufficient evidence of a relationship with the entities to establish that duties of care exist under the Restatement Section 323 or the Althaus factors. Case remanded for that determination. By: Clifford A. Rieders, Esq.

46. Hall v. Episcopal Long Term Care 54 A.3d 381 (Pa. super. 2012) stevens, p.j. • Evidence of understaffing was sufficient to support claim for corporate negligence. • Issue of punitive damages should go to jury. • Evidence similar to that presented in Scampone sufficient for punitive damages, i.e., acted in an outrageous fashion with reckless disregard to the rights of others and/or created an unreasonable risk of harm to the resident by chronic understaffing, manipulated staffing around state inspections, falsified records. The resident went entire months without a bath and “was left to lie in her own filth.” By: Clifford A. Rieders, Esq.

47. Osborne v. lewis59 a.3d 1109 (Pa.Super. 2012)olson, j. • LASIK surgery performed June 1, 2000. August 2004, patient complained of decreased vision which was confirmed. After seeing doctors and specialists, patient was told that the LASIK surgery caused his vision loss. • Patient filed malpractice claim on July 24,, 2007. • Court held the medical malpractice claim was barred by the seven-year statute of repose of the Mcare Act, 40 P.S. § 1303.513. By: Clifford A. Rieders, Esq.

48. Osborne v. lewis59 a.3d 1109 (Pa.Super. 2012)olson, j. • Court noted that the seven-year statute of repose was one of the ways that the McCare Act was to address the crisis of professional liability insurance. • “A cause of action accrues when a plaintiff could first maintain the action to successful conclusion. “ Citation omitted. 59 A.3d 1114. • In this case, the cause of action arose only after the negative effects of the LASIK surgery were ascertainable, late 2003 or 2004. As a result, the statute of repose applied. By: Clifford A. Rieders, Esq.

49. Osborne v. lewis59 a.3d 1109 (Pa.Super. 2012)olson, j. • The 7 year statute of repose barred the action even though the action could not have been brought before 2003, 2004. • The statute mandates that no medical malpractice claim “may be commenced seven years from the date of the alleged tort or breach of contract.” 40 P.S. § 1303.513 • It was undisputed that the tort or breach of contract occurred on the date of surgery, June 1, 2000, which was more than seven years prior to the filing of the claim. By: Clifford A. Rieders, Esq.

50. Osborne v. lewis59 a.3d 1109 (Pa.Super. 2012)olson, j. • Fraudulent concealment does not apply to toll the statute of repose, 40 P.S. § 1303.513. • Mcare Act specifially provides for the doctrine of fraudulent concealment to apply in cases of wrongful death or survival actions. • The absence of such an express provision for other circumstances evidences legislative intent that the fraudulent concealment exception does not apply to claims addressed by subsection (a). By: Clifford A. Rieders, Esq.