Legal Corner

Legal Corner Mcare Statute of Repose Update

Richard E. Moses, D.O, J.D.

@therealgidoc

Mcare Statute of Repose Update The Medical Care Availability and Reduction of Error Fund (Mcare) was created by Act 13 of 2002 (Mcare Act). It was signed into law on March 20, 2002. Mcare is a special fund within the Pennsylvania State Treasury established to ensure reasonable compensation for persons injured due to medical negligence. The fund pays claims against participating health care providers and eligible entities for damages awarded in medical professional liability (MPL) actions in excess of the basic insurance coverage. Mcare was enacted to stem escalating MPL insurance premiums during the medical malpractice crisis in Pennsylvania that was causing physicians to leave the state or decide not to practice here. The purpose of the Mcare Act was to ensure that medical care would continue to be available in the Commonwealth.

Section 513 of the Mcare act deals with the statute of repose. The statute of repose places an outer limit on the timeframe within which a plaintiff can bring a lawsuit. The law stipulates that no action asserting a medical professional liability claim may be commenced more than seven years after the date of the alleged malfeasance. There are two exceptions: injuries to minors and injuries caused by a foreign body unintentionally left within an individual’s body. The two exceptions may be brought after the seven year limitation under the statute of repose.

On October 31, 2019, the Pennsylvania Supreme Court issued a decision striking down the Mcare statute of repose as unconstitutional in Yanakos v. UPMC. UPMC subsequently filed an application asking the Pennsylvania Supreme Court for reconsideration of its decision to strike down the statute of repose. On January 31, 2020, the Court denied UPMC’s request for reconsideration. This finality has raised concern from a number of medical and other organizations that had filed briefs in support of the UPMC petition.

The Court’s decision weakens the Mcare Act that was specifically enacted to combat the professional liability and malpractice crisis. MPL claims that were potentially barred by the statute of repose can now be filed. This is confusing as the Pennsylvania statute of limitations for MPL claims remains two years from the date of reasonable discovery. The statute of limitations requires patients to file their MPL claims within two years of a medical procedure or other event that potentially caused their injury, or within two years of reasonably discovering their injury if they could not have discovered the injury at the time of the procedure. Prior to the court ruling, the statute of repose barred any plaintiff claims, except those involving the two exceptions noted, from being filed more than seven years after the medical procedure in question.

By way of example, if a plaintiff discovered an injury four years after an endoscopic procedure that potentially caused an injury, the plaintiff would then have two years from that date of discovery to file the claim under the statute of limitations. However, if the plaintiff discovered the injury 8 years after the endoscopic procedure, a MPL claim could not be filed because the seven year statute of repose would have expired. This is no longer the case.

There are two immediate concerns created by the Supreme Court’s decision. The first involves medical records, while the second pertains to MPL insurance premiums. Currently, regulations under the State Board of Medicine and the State Board of Osteopathic Medicine require healthcare providers to maintain medical records for seven years past the date of the last service for adults and longer for minors. Record retention requirements may now need to be longer. In addition, MPL insurance carriers no longer have the seven year date, previously anchored by the statute of repose, to calculate insurance premiums based on actuarial predictability. This could result in a rise in MPL insurance premiums. It will be important to follow the impact of the Court’s decision in Yanakos v. UPMC finding the statute of repose unconstitutional on Pennsylvania healthcare, physicians, and other healthcare providers over the ensuing years.