[J-10A-2017 and J-10B-2017]
`IN THE SUPREME COURT OF PENNSYLVANIA
`EASTERN DISTRICT
`
`SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
`
`
`
`
`v.
`
`No. 21 EAP 2016
`
`Appeal from the judgment of Superior
`Court entered 10/23/2015 at No. 2752
`EDA 2013 (reargument denied
`12/23/2015) affirming the judgment
`entered August 21, 2013, in the Court of
`Common Pleas, Philadelphia County,
`Civil Division, at No. 0846, September
`Term 2009.
`
`ARGUED: March 7, 2017
`
`
`No. 22 EAP 2016
`
`Appeal from the judgment of the
`Superior Court entered 10/23/2015 at
`No. 2753 EDA 2013 (reargument denied
`12/23/2015) affirming the judgment
`entered August 21, 2013, in the Court of
`Common Pleas, Philadelphia County,
`Civil Division, at No. 1603 August
`Term, 2009.
`
`ARGUED: March 7, 2017
`
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`OPINION
`
`
`ROBERT DUBOSE, ADMINISTRATOR
`OF THE ESTATE OF ELISE DUBOSE,
`DECEASED
`
`
`
`
`
`MARK QUINLAN, DONNA BROWN,
`RNC, BSN, ALBERT EINSTEIN MEDICAL
`CENTER D/B/A WILLOWCREST,
`WILLOWCREST AND JEFFERSON
`HEALTH SYSTEM
`
`
`APPEAL OF: WILLOWCREST NURSING
`HOME, ALBERT EINSTEIN
`HEALTHCARE NETWORK, ALBERT
`EINSTEIN MEDICAL CENTER D/B/A
`WILLOWCREST AND WILLOWCREST
`
`ROBERT DUBOSE, ADMINISTRATOR
`OF THE ESTATE OF ELISE DUBOSE,
`DECEASED,
`
`
`
`
`
`
`
`WILLOWCREST NURSING HOME, AND
`ALBERT EINSTEIN HEALTHCARE
`NETWORK,
`
`
`
`
`
`
`
`
`
`
`
`
`
`Appellee
`
`v.
`
`
`
`Appellants
`
`

`

`
`
`JUSTICE MUNDY
`
`
`
`
`
`
`
`
`
`DECIDED: November 22, 2017
`
`In this appeal by allowance, we consider whether the Superior Court applied the
`
`correct statute of limitations for a survival action in a medical professional liability case.
`
`For the reasons set forth below, we conclude the statute of limitations for medical
`
`professional liability cases in the form of wrongful death or survival actions is two years
`
`from the time of the decedent’s death. Accordingly, we affirm the judgment of the
`
`Superior Court.
`
`The facts and procedural history of this medical professional liability action,
`
`asserting negligent care at a nursing home, are as follows. On July 25, 2005, Elise
`
`Dubose was admitted to Albert Einstein Medical Center (Einstein) after she fell in her
`
`home and sustained severe head injuries, including anoxia and a brain injury. On
`
`August 9, 2005, Mrs. Dubose was transferred and admitted to Willowcrest Nursing
`
`Home (Willowcrest), a division of Einstein, where she was diagnosed with Type II
`
`diabetes, respiratory failure necessitating a ventilator, chronic obstructive pulmonary
`
`disease, and several pressure ulcers (bedsores). On September 6, 2005, to treat the
`
`ulcers, a physician ordered a flexor bed and frequent repositioning of Mrs. Dubose.
`
`Willowcrest’s staff negligently failed to follow the physician’s order, resulting in a
`
`deterioration of Mrs. Dubose’s existing pressure ulcers and proliferation of new ones to
`
`other parts of her body. During a hospitalization at Einstein from January 30 to
`
`February 14, 2007, Mrs. Dubose developed additional bedsores on her right heel and
`
`shin, on her right scapula (upper back), and on her lower back. In addition, while at
`
`Willowcrest from 2005 to 2007, Mrs. Dubose suffered malnourishment, dehydration,
`
`conscious pain from the bedsores, bone infection, and a sepsis systemic infection.
`
`One of the ulcers, located at the sacral region of the spine, which Mrs. Dubose
`
`developed during her initial July 25, 2005 hospitalization, gradually increased in size
`
`
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`

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`from August 9, 2005 to July 2007. In July 2007, the sacral ulcer became infected with
`
`bacteria from contact with feces. This infection caused sepsis in Mrs. Dubose in
`
`September 2007, and she was admitted to Einstein with sepsis on September 12, 2007.
`
`On October 18, 2007, Mrs. Dubose died from sepsis and multiple pressure sores.
`
`On August 13, 2009, Robert Dubose, as administrator for the Estate of Elise
`
`Dubose, filed a complaint against Willowcrest and Albert Einstein Healthcare Network
`
`(collectively Appellants). This complaint contained counts for negligence on behalf of
`
`Mrs. Dubose (survival action1), and a wrongful death action2 to compensate Mrs.
`
`Dubose’s survivors. Additionally, on September 14, 2009, Robert Dubose commenced
`
`a second case by filing a praecipe to issue a writ of summons. On October 7, 2009, Mr.
`
`Dubose filed a complaint in the second case, asserting similar survival and wrongful
`
`death actions based on negligence, requesting punitive damages, and naming as
`
`defendants Mark Quinlan, Willowcrest’s administrator; Donna Brown, Willowcrest’s
`
`director of nursing; Einstein; Willowcrest; and Jefferson Health System. On October 18,
`
`2010, the trial court issued an order consolidating the two cases pursuant to
`
`Pennsylvania Rule of Civil Procedure 213(a).
`
`In October 2012, the case proceeded to a jury trial, which resulted in a mistrial.
`
`A second jury trial was held from February 13, 2013 to March 13, 2013. On March 13,
`
`2013, the jury returned a verdict in favor of Mr. Dubose and against Appellants in the
`
`amount of $125,000.00 on the wrongful death action and $1,000,000.00 on the survival
`
`action. The jury apportioned liability as 60% to Willowcrest, 25% to Einstein Healthcare
`
`Network, and 15% to Donna Brown. Further, on March 21, 2013, following a bifurcated
`
`punitive damages trial, the same jury awarded $875,000.00 in punitive damages against
`
`
`1 Act of June 30, 1972, P.L. 500, No. 164.
`
` 2
`
` Act of 1855, P.L. 309; Pa.R.C.P. 2202(a).
`
`
`[J-10A-2017 and J-10B-2017] - 3
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`

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`Appellants. The trial court granted the defendants’ post-trial motions in part in the form
`
`of judgment notwithstanding the verdict (JNOV), dismissing the action as against Donna
`
`Brown because she was an employee of Willowcrest, but the trial court did not reduce
`
`the amount of the verdict. The trial court denied the remaining post-trial motions for a
`
`new trial, for JNOV, and for remittitur, and entered judgment on the verdict. Regarding
`
`the subject of this appeal, the trial court explained that Mr. Dubose’s survival action was
`
`timely filed pursuant to Section 513(d) of the Medical Care Availability and Reduction of
`
`Error Act (MCARE), 40 P.S. §§ 1303.501-1303.516, which permits plaintiffs to bring
`
`survival actions within two years of death. Trial Ct. Op., 6/27/14, at 11. As alternative
`
`support, the trial court applied the “discovery rule” and concluded that Mrs. Dubose’s
`
`comatose condition prevented her from knowing or reasonably discovering her injuries
`
`before her death. Id. at 12. Appellants appealed to the Superior Court.
`
`Relevant to this appeal, Appellants argued Mr. Dubose’s survival claims were
`
`barred by the two-year statute of limitations for personal injury actions, which began to
`
`run at the time of Mrs. Dubose’s injury in 2005.3 Appellants asserted that a survival
`
`action is distinct from a wrongful death action. A survival action is merely a continuation
`
`
`3 42 Pa.C.S. § 5524 provides a two-year statute of limitations for personal injury actions:
`
`§ 5524. Two year limitation
`
`The following actions and proceedings must be commenced
`within two years:
`
`. . .
`
`(2) An action to recover damages for injuries to the
`person or for the death of an individual caused by the
`wrongful act or neglect or unlawful violence or
`negligence of another.
`
`
`42 Pa.C.S. § 5524(2).
`
`
`[J-10A-2017 and J-10B-2017] - 4
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`

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`of a cause of action that accrued to the plaintiff’s decedent while the decedent was
`
`alive, and the statute of limitations begins to run when the decedent is injured. On the
`
`other hand, a wrongful death action accrues to the decedent’s heirs when the decedent
`
`dies of such an injury, and its statute of limitations begins to run at the decedent’s
`
`death. Appellants asserted that once the statute of limitations expires on the decedent’s
`
`cause of action, it cannot form the basis for a survival action following the decedent’s
`
`death. Appellants’ Super. Ct. Brief at 12-14 (citing Baumgart v. Kenne Bldg. Prods.
`
`Corp., 633 A.2d 1189 (Pa. Super. 1993) (en banc)).
`
`Applying these principles, Appellants argued that the statute of limitations for
`
`Mrs. Dubose’s medical professional liability claim began when she sustained the
`
`pressure ulcer in 2005. The two-year statute of limitations on the survival actions
`
`expired in 2007, and therefore the survival actions Mr. Dubose filed in 2009 were time-
`
`barred.
`
`Further, Appellants disputed the trial court’s holding that the survival action was
`
`rendered timely by Section 513 of MCARE, which provides:
`
`
`
`§ 1303.513. Statute of repose
`
`
`(a) General rule.--Except as provided in subsection (b) or
`(c), no cause of action asserting a medical professional
`liability claim may be commenced after seven years from the
`date of the alleged tort or breach of contract.
`
`(b) Injuries caused by foreign object.--If the injury is or
`was caused by a foreign object unintentionally left in the
`individual’s body, the limitation in subsection (a) shall not
`apply.
`
`(c) Injuries of minors.--No cause of action asserting a
`medical professional liability claim may be commenced by or
`on behalf of a minor after seven years from the date of the
`alleged tort or breach of contract or after the minor attains
`the age of 20 years, whichever is later.
`
`
`[J-10A-2017 and J-10B-2017] - 5
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`

`

`
`(d) Death or survival actions.--If the claim is brought under
`42 Pa.C.S. § 8301 (relating to death action) or 8302 (relating
`to survival action), the action must be commenced within two
`years after
`the death
`in
`the absence of affirmative
`misrepresentation or fraudulent concealment of the cause of
`death.
`
`
`. . .
`
`40 P.S. § 1303.513(a)-(d).
`
`
`
`Appellants contended the trial court misapprehended MCARE to revive causes of
`
`action that the statute of limitations barred. The trial court relied on Matharu v. Muir, 86
`
`A.3d 250, 263 (Pa. Super. 2014) (en banc), in which then-Judge, now-Justice, Donohue
`
`authored a unanimous, en banc opinion holding “subsection 1303.513(d) does not set
`
`forth a statute of repose at all, but rather is a statute of limitation[,] . . . and survival
`
`claims under 42 Pa.C.S. § 8302 must be commenced within two years after the death,
`
`unless there is fraudulent misrepresentation or concealment as to the cause of death.”
`
`Matharu, 86 A.3d at 263. Appellants attempted to distinguish Matharu because that
`
`case involved a timely survival action, and this case is based on an untimely survival
`
`action. According to Appellants, the statute of limitations on Mrs. Dubose’s medical
`
`professional liability action expired before her death, so a survival claim was already
`
`barred before her death. MCARE does not permit an already-barred claim to become
`
`timely through the survival statute.
`
`
`
`In the alternative, Appellants argued that even if the statute of limitations ran from
`
`the date of Mrs. Dubose’s October 17, 2007 death, certain claims added in amended
`
`complaints after October 17, 2009 were time-barred. Appellants narrowly construed the
`
`Estate’s survival action as solely based on Appellants’ negligent wound care, resulting
`
`in a pressure ulcer. Appellants contended that after the statute of limitations expired,
`
`the trial court permitted the Estate to amend its complaints to add new facts to support
`
`
`[J-10A-2017 and J-10B-2017] - 6
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`

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`additional malpractice claims. According to Appellants, these newly added facts
`
`“alleged conduct of dietitians, nutritionists, physical therapists, occupational therapists,
`
`rehabilitation therapists, recreational therapists and social workers, relating to nutrition
`
`and hydration, diabetes, urinary tract infections, urinary incontinence, acute renal failure
`
`and anemia . . . .” Appellants’ Super. Ct. Br. at 21-22. Appellants alleged these later-
`
`added claims prejudiced them because they resulted in a verdict of $1,000,000 for pain
`
`and suffering.
`
`
`
`In his Superior Court brief, Mr. Dubose emphasized that Mrs. Dubose was under
`
`constant care at Appellants’ facilities from August 2005 through October 2007, during
`
`which time she developed ten pressure ulcers and other conditions, such as
`
`dehydration. The cause of Mrs. Dubose’s death was sepsis combined with the ten
`
`pressure wounds. Thus, Mr. Dubose contended that there were new, additional injuries
`
`to Mrs. Dubose continuously until the date of her death.4
`
`
`
`Mr. Dubose maintained Section 513(d) of MCARE permitted him to bring the
`
`survival action within two years of Mrs. Dubose’s death. In support, he stated that the
`
`Matharu Court held that the specific language of Section 513(d) controlled over the
`
`general statute of limitations in 42 Pa.C.S. § 5524(2).
`
`
`
`Lastly, Mr. Dubose argued no new causes of action were added after the statute
`
`of limitations expired. Specifically, the language in paragraph 11 of the original
`
`
`4 In the alternative, Mr. Dubose then asserted that the “discovery rule” tolled the statute
`of limitations. Under the “discovery rule,” a cause of action does not accrue until the
`plaintiff discovers, or should have discovered, the injury. Mr. Dubose invoked the
`discovery rule because Mrs. Dubose did not have the mental or physical capabilities to
`exercise reasonable diligence and determine the facts of her injuries or whether she
`had a claim for medical negligence. Mr. Dubose refuted Appellants’ argument that Mr.
`Dubose had Mrs. Dubose’s power of attorney, so his knowledge of the injuries was
`more relevant than her knowledge. Mr. Dubose pointed out that Appellants’ waived the
`issue by failing to introduce the complete power of attorney document at trial.
`
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`[J-10A-2017 and J-10B-2017] - 7
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`

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`complaint avers while a resident at Willowcrest, Mrs. Dubose sustained serious injuries
`
`included but not limited to pressure ulcers, which contributed to her death. Upon
`
`consideration of Appellants’ preliminary objections, the trial court ordered Mr. Dubose to
`
`file a more specific complaint. Mr. Dubose contended that he should not be penalized
`
`for complying with that court order.
`
`
`
`A panel of the Superior Court unanimously affirmed the trial court’s order. It held
`
`Mr. Dubose’s survival action was timely under Section 513(d) of MCARE because Mr.
`
`Dubose commenced the action within two years of Mrs. Dubose’s death. The Superior
`
`Court reasoning was contained in the following paragraph:
`
`
`First, appellants claim that the survival action was
`
`filed beyond
`the statute of
`limitations. According
`to
`appellants, the statute began to run in 2005, when Mrs.
`Dubose developed a pressure wound. (Appellants’ brief at
`14.) Appellants are mistaken. The MCARE Act[] clearly
`provides that wrongful death and survival actions may be
`brought within two years of death.2 Mrs. Dubose died on
`October 18, 2007, and the plaintiff filed two complaints, one
`in August 2009, and one in September 2009, which were
`ultimately consolidated. Both were filed within two years of
`the decedent’s death. Therefore, the Survival Act claim was
`timely filed within the two-year statute of limitations.
`________________________________________________
`
` 2
`
` § 1303.513. Statute of repose
`
`
`
`(d) Death or survival actions.--If the claim is brought
`under 42 Pa.C.S. § 8301 (relating to death action) or
`8302 (relating to survival action), the action must be
`commenced within two years after the death in the
`absence of affirmative misrepresentation or fraudulent
`concealment of the cause of death.
`
`
`40 [P.S.] § 1303.513(d).
`
`Dubose v. Quinlan, 125 A.3d 1231, 1238 (Pa. Super. 2015) (footnote omitted).
`
`
`[J-10A-2017 and J-10B-2017] - 8
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`

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`
`
`The Superior Court then addressed Appellants’ issue that Mr. Dubose added
`
`causes of action in his amended complaints after the statute of limitations expired. Id.
`
`The court found Appellants waived this issue in the following analysis:
`
`Appellants also complain that the plaintiff was allowed to add
`new causes of action in his amended complaints, outside the
`statute of limitations. (Appellants’ brief at 21.) This claim
`was not raised in appellants’ Rule 1925(b) statement, nor
`was it addressed by the trial court. Therefore, it is waived.
`Pa.R.A.P. 1925(b)(4)(vii); Lazarski v. Archdiocese of
`Philadelphia, 926 A.2d 459, 463–464 (Pa. Super. 2007),
`appeal denied, 594 Pa. 714, 937 A.2d 446 (2007) (citations
`omitted).
`
`Id. The Superior Court affirmed the judgment entered in the court of common pleas.
`
`
`
`Appellants subsequently filed in this Court a petition for allowance of appeal,
`
`which the Court granted to consider the following question.
`
`Do special and important reasons exist which mandate this
`Court’s intervention, since the Superior Court improperly
`lengthened, potentially significantly, the statute of limitations
`applicable to survival actions in medical professional liability
`claims contrary to 42 Pa.C.S. §§ 5542(2) and 5502(A), all
`legal authority emanating from this Court, and the intent of
`the legislature when enacting the MCARE Act’s statute of
`repose?
`
`Dubose v. Quinlan, 138 A.3d 610, 610 (Pa. 2016) (per curiam).
`
`
`
`Based on this Court’s focus on this issue, the parties have presented the
`
`following arguments. Appellants argue that the Superior Court’s interpretation of
`
`Section 513(d) as a statute of limitations conflicts with precedent from this Court
`
`requiring survival actions to be commenced within two years of the date of the
`
`decedent’s injury. Appellants’ Brief at 23. The Superior Court’s interpretation results in
`
`two different statutes of limitations for survival actions: two years from the date of death
`
`for medical professional liability claims and two years from the date of injury for all other
`
`survival actions. Id. Instead, Appellants contend that Section 513(d), consistent with its
`
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`[J-10A-2017 and J-10B-2017] - 9
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`

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`title, is a statute of repose that establishes the maximum allowable time period—two
`
`years from the date of death—for filing survival actions. Id. at 24.
`
`
`
`As a statute of repose, Appellants contend Section 513(d) does not affect the
`
`two-year statute of limitations in 42 Pa.C.S. § 5524(2) for personal injury claims, which
`
`begins to run when the decedent knew, or should have known, of the decedent’s injury
`
`and its cause. Id. Appellants argue that the cause of action accrues and the statute of
`
`limitations begins to run if the decedent knew or should have known of the injury and its
`
`cause, even if the injury occurs before the decedent’s death. Id.
`
`
`
`In support of their interpretation of Section 513(d) as a statute of repose,
`
`Appellants explain that this Court has recognized that survival actions are not new,
`
`independent causes of action;
`
`instead,
`
`they permit
`
`the decedent’s personal
`
`representative to pursue a cause of action that accrued to the decedent before death.
`
`Id. at 25 (citing Pastierik v. Duquesne Light Co., 526 A.2d 323, 326 (Pa. 1987); Anthony
`
`v. Koppers Co., 436 A.2d 181, 185 (Pa. 1981); Pezzulli v. D’Ambrosia, 26 A.2d 659, 661
`
`(Pa. 1942)). Because the cause of action will accrue when the decedent knew or
`
`should have known of an injury, and a survival action is simply a continuation of such a
`
`cause of action, the statute of limitations for a survival action begins to run at the time of
`
`the underlying tort and does not “reset” upon the decedent’s death. Id. (citing Pastierik,
`
`526 A.2d at 326-27; Anthony, 436 A.2d at 183-84). Appellants assert that once the
`
`statute of limitations expires on the underlying tort, a survival action is likewise time-
`
`barred. Id. at 26-27 (citing Baumgart v. Keene Bldg. Prods. Corp., 633 A.2d 1189 (Pa.
`
`Super. 1993) (en banc)). This is consistent with reading Section 513(d) as a statute of
`
`repose that sets the latest date that a survival action can be commenced. Id. at 36.
`
`
`
`Applying these principles to this case, Appellants maintain that Mrs. Dubose’s
`
`medical negligence cause of action accrued when her sacral ulcer developed in 2005,
`
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`[J-10A-2017 and J-10B-2017] - 10
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`and Mrs. Dubose and Mr. Dubose were aware of the injury and attributed it to negligent
`
`care. Id. at 27. Further, because Mr. Dubose held Mrs. Dubose’s power of attorney
`
`with the right to bring a lawsuit on her behalf, Appellants argue that his knowledge of
`
`Mrs. Dubose’s injury should be imputed to Mrs. Dubose. Id. at 38-51. As this is an
`
`action for personal injury, it was subject to a two-year statute of limitations, which
`
`Appellants assert expired in 2007. Id. at 28. Because Mr. Dubose did not commence
`
`the survival action until 2009, Appellants conclude it was time-barred. Id.
`
`
`
`Additionally, Appellants argue that the Superior Court erred in this case and in its
`
`previous decision of Matharu which also concluded that Section 513(d) is a statute of
`
`limitations that runs from the date of death. Id. at 29 (citing Matharu, 86 A.3d at 263).
`
`Appellants emphasize that this results in two different statutes of limitations for survival
`
`actions. Id. at 30. To illustrate, Appellants contemplate a decedent injured by a
`
`defective product in 2005, but who does not bring a lawsuit before her death in 2008.
`
`Id. In such a case, a survival action brought by the decedent’s estate would be time-
`
`barred. Id. However, under the interpretation of Section 513(d) adopted by the
`
`Superior Court, if a decedent is injured by medical negligence in 2005, but does not file
`
`a lawsuit before her death in 2008, the decedent’s estate has an additional two years to
`
`file a survival action from the date of her 2008 death. Id. at 31. Appellants argue that
`
`the General Assembly did not intend to create such a result. Id. at 31.
`
`
`
`Further, the Superior Court’s interpretation of Section 513(d) contravenes the
`
`legislative purpose of MCARE, which Appellants assert was to curb “the medical
`
`malpractice crisis gripping this Commonwealth.”5 Id. at 32. The Superior Court’s
`
`5 The effective date of most MCARE provisions was March 20, 2002. Act 13 of 2002,
`P.L. 154, No. 13 § 5108. The Administrative Office of Pennsylvania Courts compiled
`statistics showing that the number of medical malpractice cases newly filed in
`Pennsylvania has decreased from an average of 2,733 in 2000-02 to 1,530 new cases
`filed in 2015, which is a 44.0% reduction. See Pennsylvania Medical Malpractice Case
`(continued…)
`
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`

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`decision in this case results in the revival of a survival claim that accrued four years
`
`before decedent died, which Appellants argue is inconsistent with the General
`
`Assembly’s intent in passing MCARE. Id. at 33-35. For these reasons, Appellants
`
`request that we reverse the decisions of the trial court and Superior Court and grant
`
`JNOV in favor of Appellants on the survival claim.6
`
`
`
`In response to Appellants’ arguments, Mr. Dubose initially contends that the
`
`discovery rule applies in this case because Appellants admitted that Mrs. Dubose was
`
`brain damaged while in their care. Mr. Dubose’s Brief at 16. Due to her mental
`
`disability, Mrs. Dubose was unable to investigate the nature and cause of her injuries.
`
`Id. Because Mrs. Dubose lacked the awareness of her injury and its cause, a medical
`
`professional liability claim did not accrue to her. Id. at 17 (citing Miller v. Phila. Geriatric
`
`Ctr., 463 F.3d 266 (3d Cir. 2006); Zeidler v. United States, 601 F.2d 527 (10th Cir.
`
`1979)). Mr. Dubose argues Appellants’ reliance on Mrs. Dubose’s power of attorney
`
`was waived because Appellants did not produce the entire power of attorney document
`
`until the case was on appeal to the Superior Court. Id. at 30. Therefore, the power of
`
`attorney was not part of the certified record, even though Appellants had possession of
`
`a power of attorney document since 2006. Id. at 31.7
`
`(…continued)
`11,
`Filings
`(Oct.
`4474.pdf?cb=382360.
`
`http://www.pacourts.us/assets/files/setting-2929/file-
`
`2016),
`
`6 In the alternative, Appellants argue they were entitled to partial JNOV because Mr.
`Dubose’s amended complaints added new causes of action after the statute of
`limitations expired. We decline to address this claim because it is outside the scope of
`the grant of allowance of appeal, which was limited to whether “the Superior Court
`improperly lengthened, potentially significantly, the statute of limitations applicable to
`survival actions in medical professional liability claims . . . .” Dubose, 138 A.3d at 610.
`
`7 We do not address Mr. Dubose’s alternative argument for affirmance based on the
`discovery rule because we conclude the survival action was timely filed under Section
`513(d).
`
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`
`
`Additionally, Mr. Dubose contends that while the sacral wound appeared in 2005,
`
`the complaint alleged a course of negligence against Mrs. Dubose that resulted in
`
`multiple injuries from 2005 to 2007, including additional pressure wounds, sepsis,
`
`hypertension, and acute renal failure. Id. at 19-20. Accordingly, Mr. Dubose contends
`
`this case involves more negligence than Appellants’ simplification of “one pressure sore
`
`that developed in 2005.” Id. at 20. Instead, Mr. Dubose notes that Mrs. Dubose died
`
`from septic shock, caused by multiple pressure wounds, and dehydration. Id.
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`Further, Mr. Dubose contends the plain language of Section 513(d) states that
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`medical professional liability claims in the form of wrongful death and survival actions
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`may be brought within two years of decedent’s death. Id. at 21. Mr. Dubose argues
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`that because the text of Section 513 is not ambiguous, we merely need to give effect to
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`that language and not consult any principles of statutory construction. Id. Mr. Dubose
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`notes that the legislature had a dual purpose in enacting MCARE: to fairly compensate
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`the victims of medical negligence and to promote affordable medical professional
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`liability insurance for medical providers. Id. at 22 (citing Osborne v. Lewis, 59 A.3d
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`1109 (Pa. Super. 2012)). Mr. Dubose asserts this dual purpose is not at odds with
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`permitting wrongful death and survival actions to accrue at the time of the decedent’s
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`death. Id. Mr. Dubose posits that this favorable provision for medical professional
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`liability plaintiffs may have been in exchange for requiring certificates of merit upon
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`commencing an action and the seven-year statute of repose for all medical professional
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`liability actions. Id. at 23. In support, Mr. Dubose directs us to 42 Pa.C.S. § 5524(8),
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`which alters the accrual date for injuries or deaths related to asbestos from when the
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`plaintiff was injured to when the plaintiff was formally diagnosed with an asbestos-
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`related disease. Id. at 23-24 (citing Wygant v. Gen. Elec. Co., 113 A.3d 310 (Pa. Super.
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`2015)). Similarly, Mr. Dubose argues that the legislature similarly extended the
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`deadline for filing a survival action in medical professional liability cases resulting in
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`death to two years from the date of death. Id. at 24.
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`In additional support of his plain language argument, Mr. Dubose points out that
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`the most important distinction between a statute of repose and a statute of limitations is
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`the act triggering the period of time in which a plaintiff must file a lawsuit. Id. at 25.
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`Statutes of limitations begin to run when the cause of action accrues, which is usually
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`the time a plaintiff is injured. Id. at 25 (citing 42 Pa.C.S. § 5502(a); Graver v. Foster
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`Wheeler Corp. Appeal, 96 A.3d 383 (Pa. Super. 2014); Adamski v. Allstate Ins. Co., 738
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`A.2d 1033 (Pa. Super. 1999)). In contrast, statutes of repose focus on the defendant’s
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`conduct and begin to run when the defendant completes a specified act, and statutes of
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`repose may operate to bar a lawsuit before the cause of action even accrues to the
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`plaintiff. Id. at 26 (citing McConnaughey v. Bldg. Components, Inc., 637 A.2d 1331,
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`1332 n.1 (Pa. 1994)).
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`Applying this distinction to the plain language Section 513, Mr. Dubose argues
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`Section 513(d) is a statute of limitations because it permits the plaintiff to bring a cause
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`of action within two years of the victim’s death, and Section 513(a) is a statute of repose
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`because it limits the time in which to file a survival action to seven years from the date
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`of the tort. Id. at 27. Mr. Dubose contends there is no conflict between these two
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`subsections.8
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`8 Similarly, the Pennsylvania Association for Justice (PAJ) filed an amicus curiae brief in
`support of Mr. Dubose. Therein, it argues that Section 513(d) establishes that a cause
`of action for a wrongful death or survival brought under the MCARE act accrues at the
`time of the decedent’s death. PAJ Brief at 10. According to PAJ, the general, seven-
`year statute of repose in Section 513(a) curtails the potential application of the
`discovery rule in these cases. Id. PAJ notes that in Matharu, the Superior Court held
`that MCARE controlled over the general personal injury statute of limitations in 42
`Pa.C.S. § 5524. Id. at 11. For MCARE wrongful death and survival actions, the two-
`year period begins to run at the patient’s death. Id. (citing Matharu, 86 A.3d at 263).
`PAJ does not dispute Appellants’ claim that this creates a different statute of limitations
`(continued…)
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`We begin our analysis by noting that this case requires us to review the Superior
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`Court’s affirmance of the trial court’s decision to deny Appellants’ motion for JNOV
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`regarding Mr. Dubose’s survival action. We review a trial court’s grant or denial of
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`JNOV for an abuse of discretion or an error of law. Reott v. Asia Trend, Inc, 55 A.3d
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`1088, 1093 (Pa. 2012) (citation omitted). The question upon which we granted
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`allowance of appeal—whether the Superior Court correctly interpreted the statute of
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`limitations for survival actions under MCARE—is a matter of statutory interpretation.
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`See Gilbert v. Synagro Cent., LLC, 131 A.3d 1, 17 (Pa. 2015) (citations omitted). As
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`statutory interpretation is a question of law, our standard of review is de novo and our
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`scope of review is plenary. Reott, 55 A.3d at 1093 (citation omitted).
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`In interpreting a statute, this Court must “ascertain and effectuate the intention of
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`the General Assembly. Every statute shall be construed, if possible, to give effect to all
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`its provisions.” 1 Pa.C.S. § 1921(a). To do so, we begin by considering the plain
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`meaning of the statute’s language. Scungio Borst & Assocs. v. 410 Shurs Lane
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`Developers, LLC, 146 A.3d 232, 238 (Pa. 2016). If the statute’s plain language is
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`unambiguous, we must apply it without employing familiar canons of construction and
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`without considering legislative intent.9 Id.; 1 Pa.C.S. § 1921(b) (“When the words of a
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`statute are clear and free from all ambiguity, the letter of it is not to be disregarded
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`under the pretext of pursuing its spirit”). Further, the Statutory Construction Act states
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`that the headings of a statute do not control the meaning of its plain language, but may
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`(…continued)
`for medical malpractice actions; however, PAJ notes it is the within the legislature’s
`power to do so. Id. This is consistent with the legislatively stated purpose of MCARE.
`Id. at 12.
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`9 Even though Appellants and Mr. Dubose advocate different interpretations of Section
`513(d) of MCARE, neither party argues the statute’s language is ambiguous.
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`be considered to aid in construction. 1 Pa.C.S. § 1924; see also Commonwealth v.
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`Magwood, 469 A.2d 115, 119 (Pa. 1983) (“It is also a ‘well-established rule’ that the title
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`‘cannot control the plain words of the statute’ and that even in the case of ambiguity it
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`may be considered only to ‘resolve the uncertainty’”) (quoting Sutherland Statutory
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`Cons