A Pennsylvania court decision is causing anxiety among the state’s healthcare providers because it redefines the currently understood term “cause of death.” This creates a situation so confusing and with so much potential liability that numerous groups have together filed an amici curiae (friend of the court) brief, including: the American Medical Association, the Pennsylvania Coalition for Civil Justice Reform, the Pennsylvania Medical Society, the Pennsylvania Chapter of the American College of Physicians, and more.
The facts of the case are as follows: The patient, Ms W, was sent by her primary care physician, Dr C, for a CT scan which was reviewed by a radiologist, Dr B. After studying the scan, Dr B drafted a radiology report which stated that Ms W had an abdominal aortic aneurysm which was ‘poorly visualized’ on the study. The report did not document a rupture of the aneurysm, or any concern of a possible rupture. At the end of the report Dr B noted that Dr C had been contacted with the findings. Five days later, on April 28, 2010, Ms W died as a result of a ruptured abdominal aortic aneurysm.
A year later, in April 2011, Ms W’s heir, the plaintiff, filed a lawsuit against Dr B (the radiologist) and his employer hospital for wrongful death of Ms W. Discovery began in the case, but the plaintiff’s attorney was unsuccessful is scheduling a deposition with Dr B. The attorney had to get help from the trial court to finally get Dr B for a deposition in February 2015. (Yes, it had taken almost 4 years. This is not unusual, unfortunately).
During the deposition, Dr B testified that he had spoken on the phone to Dr C, the primary care physician, after reviewing the CT scan. Dr B testified that he told Dr C that the scan showed a previously undocumented abdominal aortic aneurysm but because he could not visualize the aneurysm very well, he could not confirm that it was not bleeding or rupturing.
Based on this testimony, the plaintiff initiated a separate action against Dr C in March 2016, asserting wrongful death.
In the early 2000’s, in response to a medical liability insurance crisis in the state, Pennsylvania enacted the Medical Care Availability and Reduction of Error Act (MCARE). The statute of limitations to file a wrongful death claim in Pennsylvania is 2 years. However, MCARE has a provision which tolls (pauses) the statute of limitations in the event there was ‘affirmative misrepresentation or fraudulent concealment of the cause of death.’ The purpose of this ‘equitable tolling provision’ is to ensure that plaintiffs have a fair right to sue.
Dr C’s attorneys moved to dismiss the case against him based on the fact that the statute of limitations had expired. The patient died in 2010, and the case against Dr C was not filed until 2016, much longer than the 2-year statute of limitations. The trial court agreed, concluding that the action had been commenced more than 2 years after the death, and that there was no evidence of ‘affirmative misrepresentation or fraudulent concealment of the cause of death.’ The trial court dismissed the case against Dr C. The plaintiff appealed.
Superior Court Decision
The one (awkwardly worded) issue on appeal was whether the trial court erred in granting summary judgment to Dr C on the grounds that the statute of limitations could not be equitably tolled because the cause of death was correct on the death certificate.
Typically, ‘cause of death’ meant what was written on the death certificate. However, the Superior Court agreed with the plaintiff’s suggestion that it be looked at more broadly. The plaintiff argued that Dr B’s concealment of his communications with Dr C concerning the patient’s aneurysm was directly related to her cause of death, and thus the statute of limitations should be tolled. Dr C argued that the language of the MCARE act is not ambiguous, and that the correct cause of death is listed on her death certificate.
The Superior Court noted that ‘cause of death’ is not defined in MCARE, and it is unclear whether the term means ‘immediate, medical cause of death, such as is ordinarily listed on the decedent’s death certificate, or includes conduct leading to the decedent’s death but that is not the immediate, medical cause of the death.” The Court concluded that both interpretations were reasonable, and that the term is ambiguous. It turned to the Statutory Construction Act to try to determine what the intent was when the statute was enacted.
The Superior Court concluded that the fact that the exception was included in MCARE “recognizes that wrongful death and survival actions may involve situations where the patient’s interest in fair compensation outweighs the interest in limiting medical malpractice insurance costs. It is in furtherance of the stated purpose of fair compensation that we interpret ‘affirmative misrepresentation or fraudulent concealment of the cause of death’ to encompass those acts which caused the patient to die.” The court continued by holding that “affirmative misrepresentation or fraudulent concealment of the cause of death means affirmative misrepresentations about or fraudulent concealment of conduct the plaintiff alleges led to the decedent’s death.”
Based on this, the Superior Court found that the trial court erred in concluding that the claims were barred by the statute of limitations, and should not have dismissed the case against Dr C. The Superior Court remanded the case back to trial court to determine if there was fraudulent concealment or affirmative misrepresentation of an act by Dr C related to the patient’s death.
In May 2021, Dr C appealed the Superior Court decision. This past July 2021, a large group of medical and justice organizations filed an amici curiae brief arguing that the Superior Court had erred in deciding that the “cause of death” phrase in MCARE is ambiguous, and that the court had, in effect, usurped the General Assembly’s clear intent in enacting the law. The case is ongoing.
The problem in this case popped up when it became clear that Dr B had written one thing on the radiology report, but said something different to Dr C. On the report he only said that the aneurysm was poorly visualized. When he spoke to Dr C, he allegedly told him that he could not confirm that it was not bleeding or rupturing. That’s a big difference, and one that would affect a clinician’s actions.
If you write something in your report, make sure you say the same thing verbally, and vice versa. Be consistent with your written and verbal information.