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Francis X. Osborne v. James S. Lewis

December 21, 2012

FRANCIS X. OSBORNE,
v.
JAMES S. LEWIS, M.D., BARRY FABRIZIANI, O.D., AND ADVANCED LASER VISION, P.C. APPEAL OF: JAMES S. LEWIS, M.D. AND ADVANCED LASER VISION, P.C.



Appeal from the Order of July 6, 2011 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 07-17481.

The opinion of the court was delivered by: Olson, J.:

J-A08034-12

BEFORE: STEVENS, P.J., ALLEN and OLSON, JJ.

OPINION BY OLSON, J.:

In this medical malpractice action, Appellants, James S. Lewis, M.D. ("Dr. Lewis") and Advanced Laser Vision, P.C. ("Advanced Laser"), appeal from the trial court order entered July 6, 2011, denying their motion for summary judgment.*fn1 For the following reasons, we reverse the trial court's order and hold that the claims against Appellants are barred by the sevenyear statute of repose set forth in the Medical Care Availability and Reduction of Error Act ("the MCARE Act"), 42 P.S. § 1303.513.

The record reflects the relevant factual and procedural history of this matter as follows.

On June 1, 2000, Dr. Lewis performed LASIK surgery on Appellee, Francis X. Osborne. On August 10, 2004, Mr. Osborne returned to see Dr. Lewis, complaining of decreased vision. At that time, Dr. Lewis confirmed that Mr. Osborne was losing his vision. Mr. Osborne subsequently went to see a number of doctors and specialists. Eventually, Mr. Osborne was told that the LASIK surgery performed on June 1, 2000 was causing his sight to deteriorate.

On July 24, 2007, Mr. Osborne commenced this medical malpractice action against Dr. Lewis, Advanced Laser, and Barry Fabriziani, O.D. ("Dr. Fabriziani"), alleging that, on June 1, 2000, the defendants provided negligent medical care when they performed LASIK surgery on the corneas of both of Mr. Osborne's eyes. After the close of pleadings and discovery, all defendants moved for summary judgment. Appellants' motion alleged, inter alia, that the claims against them are barred by the seven-year statute of repose set forth in the MCARE Act, 42 P.S. § 1303.513(a). By its July 6, 2011 order, the trial court denied Appellants' motion for summary judgment.*fn2

Subsequently, Appellants requested that the trial court amend the July 6, 2011 order and grant them permission to file an interlocutory appeal pursuant to 42 Pa.C.S.A. § 702(b) and Pennsylvania Rule of Appellate Procedure 1311. The trial court did not rule on the motion. Therefore, the motion was denied by operation of law. Pa.R.A.P. 1311(b) ("Unless the trial court or other government unit acts on the application within 30 days after it is filed, the trial court or other government unit shall no longer consider the application and it shall be deemed denied.")

Nevertheless, on August 3, 2011, Appellants filed a timely notice of appeal to the trial court's July 6, 2011 order. On August 10, 2011, the trial court issued an order directing Appellants to file their concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellants complied with that order on August 25, 2011, and on September 27, 2011, the trial court issued a Rule 1925(a) opinion.

The trial court's Rule 1925(a) opinion did not address the merits of Appellants' appeal, but instead opined that our Court lacked jurisdiction over the appeal because the order denying Appellants' motion for summary judgment was interlocutory. See Trial Court Opinion, 9/27/2011, at 3. Consequently, the trial court suggested that we quash the appeal.

On July 6, 2012, this panel issued a memorandum opinion, disagreeing with the trial court. Rather, we held that the July 6, 2011 trial court order denying Appellants' motion for summary judgment was an immediately appealable collateral order pursuant to Pennsylvania Rule of Appellate Procedure 313.*fn3 Consequently, we remanded this matter to the trial court with instructions for the trial court to prepare and file a supplemental Rule 1925(a) opinion addressing the merits of Appellants' issues on appeal. We retained jurisdiction and awaited the trial court's Rule 1925(a) opinion on the merits of Appellant's claims. On October 12, 2012, the trial court filed its supplemental opinion. Thus, the case is ripe for our decision on the merits of the issues raised by Appellants.

Appellants present three issues for our consideration:

Whether an appeal lies pursuant to the collateral order doctrine from the trial court's denial of summary judgment, refusing to dismiss a medical malpractice claim pursuant to the MCARE [Act's] [seven]-year statute of repose...?

Whether the MCARE [Act's] statute of repose, which applies to "causes of action which arise on or after the effective date" of March 20, 2002, applies to the claim of a LASIK surgery patient whose surgery, performed on June 1, 2000, results in injury ...


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