Article 1, Section 11 of the Pennsylvania Constitution states: “All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have a remedy by due course of law….” In Yanakos v. UPMC, http://www.pacourts.us/assets/opinions/Supreme/out/j-83-2018mo%20-%2010420416781575252.pdf#search=%22yanakos%20%27Supreme%2bCourt%27%22 (10/31/2019), the Pennsylvania Supreme Court struck down the state’s seven-year statute of repose for medical malpractice cases as a violation of this Open Courts clause (also called the Remedies Clause). [Footnote 1.]
The court summarized the facts as follows:
Susan Yanakos suffers from a genetic condition called Alpha-1 Antitrypsin Deficiency (AATD), [in which the liver doesn’t produce] a protein…that plays an important role in protecting the lungs from damage. [She] needed a liver transplant due to the progression of her AATD. Because Susan was not a candidate for a cadaver liver, her son Christopher volunteered to donate a lobe of his liver to his mother.
As part of [the donor evaluation] process…Christopher advised [the doctors] that several of his family members suffered from AATD, but that he was unsure whether he did as well. [They] ordered additional laboratory tests for Christopher, but never informed him of the results, which allegedly showed that Christopher had AATD and [therefore] was not a candidate for liver donation. [Despite this undisclosed lab result, the surgery was performed] in September 2003…removing a portion of Christopher’s liver and transplanting it into Susan.
More than twelve years later, in December 2015, [the Yanakoses filed a malpractice suit, alleging] that they did not discover [the defendants’] negligence until eleven years after the transplant surgery, when additional testing revealed that Susan still had AATD, which the transplant should have eliminated. [Footnote 2.]
The trial court granted the defendants’ motion for judgment on the pleadings based on the applicable statute of repose, which provided that “no cause of action asserting a medical professional liability claim may be commenced after seven years from the date of the alleged tort….” The court noted that neither of the statutory exceptions – for injuries caused by foreign objects left in a patient’s body and for claims commenced on behalf of a minor – applied here. The supreme court reversed, applying the intermediate scrutiny standard of review to assess the constitutionality of the statute. [Footnote 3.]
The supreme court had previously held that intermediate scrutiny applies when a constitutional right is “important” but not “fundamental”; it had also previously held that the constitutional right of access to the courts / right to a remedy is important. To pass muster under the intermediate scrutiny standard, the statutory classification must “be drawn so as to be closely related to the objectives of the legislation,” and the proponent of the statute “bears the burden of proof on the appropriateness of the means it employs to further its interest.”
The objectives of a medical malpractice statute of repose are, first, “to provide actuarial certainty to insurers in calculating insurance premium rates” by shortening the “long tail” of potential claims resulting from the discovery rule; and second, to control malpractice insurance rates. With regard to the first objective, the court observed that the statute “does not offer insurers a definite period after there will be no liability because it exempts foreign objects cases and minors, so insurers still have to account for those unpredictable ‘long-tail’ cases in calculating malpractice insurance premiums.” With regard to the second objective, the court noted that the defendants, who bore the burden of proof, had produced no evidence as to how the legislature had arrived at a seven-year statute of repose – such as, for example, statistics showing that a meaningful percentage of malpractice cases are filed more than seven years after the underlying event. To the contrary, what little legislative history there was suggested that the legislature had more or less picked the number seven out of a hat (the bill had originally called for a four-year statute of repose). And the court included a footnote referencing a Washington case in which the court struck down an eight-year statute of repose under the rational basis standard (!), where evidence presented to the legislature showed that fewer than 0.5 percent of claims were reported more than eight years after the underlying occurrence. In short, the defendants “have not demonstrated that this seven-year period is substantially related to the goal of controlling insurance premiums.”
Footnotes
1. In a previous post, I discussed a Kentucky case in which the court struck down the state’s medical malpractice panel law based on an almost identically worded Open Courts provision in the state constitution. https://www.videntpartners.com/blog/2019/kentucky-supreme-court-strikes-down-med-mal-panel-law-violative-state-constitution%E2%80%99s-open.
2. The plaintiffs’ attorney filed suit after a liver transplant expert provided by Vident Partners reviewed the case and found it meritorious.
3. As opposed to the rational basis standard, under which the challenged statute is almost always upheld or the strict scrutiny standard, under which the challenged statute is almost always struck down.
