An exemption to the MCARE statute of repose that allows patients with sponges and scissors left in their bodies to sue more than seven years after the surgery does not apply to organ recipients who received problematic organs, the Pennsylvania Superior Court has ruled.
A three-judge panel of the court ruled July 26 in Yanakos v. UPMC that plaintiff Christopher Yanakos could not proceed with his lawsuit against University of Pittsburgh Medical Center over a liver transplant that occurred 13 years before he filed suit.
The ruling affirmed a decision from Allegheny County Court of Common Pleas Michael A. Della Vecchia denying Yanakos' challenge to the Medical Care Availability and Reduction of Error (MCARE) Act's statute of repose for injuries caused by foreign objects left in a body.
The plaintiffs contended that their case should be allowed to proceed under the exemption because the exemption is aimed at protecting plaintiffs who can't learn about the negligence in seven years.
However, Judge Lilian Ransom, who wrote the nonprecedential decision, said leaving a sponge behind after surgery and implanting a problematic organ are not so easily equated.
"Although appellants align themselves with patients in the foreign object classification, the same observation of the durability of evidence cannot be made in other delayed discovery cases," Ransom said. "Specifically, in foreign object cases, the evidence of the negligence is nestled within the victim until eventual discovery, whereas, in other varieties of delayed discovery cases, the passage of time can erode the credibility of eye-witness testimony, causal relationships, and the availability of documentation."
William Stickman of Del Sole Cavanaugh Stroyd, who represented the plaintiffs, said his client plans to appeal the decision to the state Supreme Court. Stickman said the plaintiffs preserved several issues they may appeal on, but will likely focus on whether the ruling violated the plaintiff's guaranteed right to access the courts.
"We believe the appellants' right to open court was unconstitutionally barred," Stickman said, pointing to a recent decision from a Utah court that he said interpreted language similar to the MCARE statute of repose as unconstitutional. "The duty would not have begun to run until these people were informed of the test results."
UPMC's counsel, John Conti of Dickie, McCamey & Chilcote, said the court properly determined the issues.
"The statute of repose should not be expanded beyond the foreign object exception. To do otherwise would be very much contrary to the statute and could also create a loophole that would substantially undermine the intent of a statute of repose," Conti said.