2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

previous five years. 40 P.S. § 1303.512(b)(1)-(2). The expert must also be familiar with theapplicable standards for the care at issue, and the expert must have practical experience in thesame subspecialty as the defendant physician, or be board-certified by the same or similarapproved board as the defendant doctor. 40 P.S. § 1303.512(c).The court may waive the subspecialty requirement for an expert if the defendantphysician provided care for a condition not within the defendant physician’s specialty. Undersuch circumstances, the court will certify a proposed expert where that proposed expert is trainedin the treatment of the condition for which the defendant physician actually treated (where suchcondition is outside of the specialty of the defendant doctor). 40 P.S. § 1303.512(d)However, many of these qualifications may be waived if the Court finds that the expertotherwise “possesses sufficient training, experience and knowledge to provide the testimony as aresult of active involvement in or full time teaching of medicine in the applicable subspecialty,”thus leaving the competency of the witness largely within the discretion of the trial judge. 40P.S. § 1303.512.(g)Statute of ReposeFor causes of action arising on or after March 20, 2002, a seven-year statute of reposewill apply. 40 P.S. § 1303.513. This provision will bar the commencement of a lawsuitasserting medical malpractice more than seven years from the date of the alleged tort or breachof contract. 40 P.S. § 1303.513(a). The Statute of Repose affects the influence of the “discoveryrule.” The “discovery rule” tolls the two-year statute of limitations for personal injuries until thepatient becomes aware of the alleged tort, or reasonably should have become aware of thealleged tort. Prior to the enactment of MCARE, the discovery rule was available to delay theexpiration of the statute of limitations for many years under certain circumstances. However,MCARE now limits the amount of time that the discovery rule can toll the statute of limitationsby requiring that suits be brought with seven years despite a possibly later deadline previouslyavailable under the discovery rule.It is worth noting that MCARE’s Statute of Repose does not apply to situations whereforeign objects are unintentionally left in the patient’s body, or for affirmative misrepresentationor fraudulent concealment of the cause of death in wrongful death or survival actions. 40 P.S. §1303.513 (c). Furthermore, minors may commence a lawsuit alleging a tort or breach of contractwithin the seven years under the Statute of Repose, or until their 20th birthday, whichever islater. 40 P.S. § 1303.513(c).Wrongful death and survival actions 10 must be commenced within two years afterthe death in the absence of affirmative misrepresentation or fraudulent concealment of thecause of death. 40 P.S. § 1303.513(d). In a recent case, Matharu v. Muir, 29 A.3d 375 (Pa.Super. June 28, 2011), the court found that the statutes of limitations delineated by 40 P.S.§ 1303.513(d) trumped more general statutes of limitations that preceded MCARE. InMatharu, defendants brought wrongful death and survival claims on behalf of their son,10 I.e., claims brought under under 42 Pa.C.S. § 8301 (relating to death action) or 8302 (relating tosurvival action).101