2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

whose death, in 2005, was allegedly caused in part by defendants’ failure, in 1998, toadminister a necessary dose of Rh immunoglobin. Id. at 378-80.This alleged negligence occurred in 1998, and was known to plaintiffs at that time,but plaintiffs did not file their lawsuit until 2007. Id. at 380. Defendants, relying on 42 Pa.C.S. § 5502(a), alleged that the applicable two-year statute of limitations for wrongful deathand survival actions began to run when the alleged negligent act had been done, in 1998.Id. at 382. Plaintiff countered, and the court agreed, that the specific language of 40 P.S. §1303.513(d) controlled over the general statutory language of 42 Pa. C.S. § 5524, andconsequently plaintiffs had properly commenced their wrongful death/survival actionwithin two years after the death of their child. Id. at 382. The Court also found that evenunder the more general statutory language to be found in the Judicial Code, Defendant’sstatute of limitations argument would not prevail. The Superior Court found that thesurvival claim did not begin to run until at the earliest, the child’s birth, and that as to thewrongful death claim, no pecuniary harm was present until the child’s death, and thesurvival claim brought on behalf of the child was not time-barred – meaning therefore thatneither was the wrongful death claim.(h)VenueSignificant changes have been enacted with respect to the propriety of venue in medicalmalpractice actions in Pennsylvania. First, the MCARE revised existing law regarding venue.Specifically, section 5101.1 of the Act relates to venue in medical malpractice actions. See 42P.S. § 5101.1. While previous venue principles essentially permitted an action to be filed in acounty in which any defendant conducted business or had sufficient contacts, Section 5101.1(b)specifically provides that a medical professional liability action may only be filed in the countyin which the cause of action arose. See id.The Pennsylvania Commonwealth Court has deemed 42 P.S. § 5101.1 unconstitutional.North-Central Pennsylvania Trial Lawyers Ass’n v. Weaver, 827 A.2d 550 (Pa. Commw. Ct.2003) (en banc). In North-Central, petitioners alleged that the provisions of Act 127, the act thatgave rise to Section 5101.1, violated Article V, Section 10(c) of the Pennsylvania Constitutionpertaining to the Supreme Court’s power to prescribe general procedural rules governingoperation of the courts. 827 A.2d at 558. The court held that Section 5101.1 was procedural innature because it affects the procedure by which the rights of an individual claiming an injurycaused by medical negligence may be effectuated but does not create, define, or regulatesubstantive rights. Id. Further, the court reasoned, in the absence of a countervailingconstitutional provision authorizing the legislature to act in regard to venue in a particular area,the matter of venue is committed to the exclusive authority of the Supreme Court pursuant toArticle V, Section 10(c). Id. at 559. Consequently, the court concluded that Act 127, to theextent that it purported to change the general rules about venue in medical professional liabilityactions, exceeded the authority of the legislature and was therefore unconstitutional. Id.The Superior Court, however, has declined to be bound by the Commonwealth Court’sholding in North-Central. Connor v. Crozer Keystone Health Sys., 832 A.2d 1112, 1116 n.3 (Pa.Super. 2003) (noting that the Superior Court is not bound by any decision of the CommonwealthCourt and declining to further address the constitutionality of 42 P.S. § 5101.1).102