Monday, August 10, 2020

Pennsylvania Superior Court Addresses Tolling Provision of MCARE Act


In the case of Reibenstein v. Barax, No. 1624 (M.D.A. 2019 (Pa. Super. July 30, 2020 Olson, J., Dubow, J. and McLaughlin, J.) (Op. by McLaughlin, J.), the court referred the matter back to the trial court relative to a summary judgment motion on the statute of limitations in a medical malpractice case. 

The court noted that the Medical Care Availability and Reduction Error Act (“MCARE”) provides a statute of limitations that requires a Plaintiff to commence a wrongful death or survival action asserting a medical professional liability claim within two (2) years after the death of the Claimant. See 40 Pa. C.S.A. 1303.513(d). 

However, the Pennsylvania Superior Court also noted that the statute of limitations under this provision is subject to an equitable tolling for “affirmative misrepresentation or fraudulent concealment of the cause of death.” See 40 Pa. C.S.A. 1303.513(d).

The Pennsylvania Superior Court held 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. 

The court referred this matter back to the trial court for further proceedings on whether there was a fraudulent concealment or affirmative misrepresentation of an act by the medical Defendant at issue related to the Claimant’s death. 

Anyone wishing to review a copy of this decision may click this LINK.

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