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Bulebosh v. Flannery

Superior Court of Pennsylvania

April 22, 2014

DENISE L. BULEBOSH AND MICHAEL J. BULEBOSH, JR., HER HUSBAND, Appellees
v.
ROBERT FLANNERY; WESTMORELAND PODIATRY ASSOCIATES, APPEAL OF: ROBERT FLANNERY, D.P.M., Appellant

 Argued January 28, 2014

Appeal from the Order of the Court of Common Pleas, Westmoreland County, Civil Division, No(s): No. 747 of 2005. Before MARSILI, J.

John W. Jordan, IV, Pittsburgh, for appellant.

Ned J. Nakles, Jr., Latrobe, for appellee.

BEFORE: BOWES, WECHT, and STABILE, JJ. OPINION BY BOWES, J.

OPINION

Page 1242

 BOWES, J.

In this medical malpractice action, Robert Flannery, D.P.M., appeals from the March 21, 2013 order denying his summary judgment request, which was premised on the statute of repose of the Medical Care Availability and Reduction of Error Act (" MCARE" ), 40 P.S. § 1303.501. The collateral order doctrine provides the basis for our jurisdiction to entertain this interlocutory appeal. See Osborne v. Lewis, 2012 PA Super. 283, 59 A.3d 1109 (Pa.Super. 2012).[1] We conclude that the statute of repose does not apply to Mrs. Bulebosh's cause of action, which arose prior to its effective date, and hence, we affirm.

Denise Bulebosh and her husband Michael commenced this medical negligence action against Dr. Flannery on February 2, 2005, by a praecipe for writ of summons. In the complaint filed on May 6, 2005, they alleged that Dr. Flannery was negligent in performing unsuitable surgeries to implant STA-peg devices in both of wife-plaintiff's feet in 1985 and 1989, respectively. Additionally, the Buleboshes alleged that during the 2000 surgery to remove the device from Mrs. Bulebosh's left foot, Dr. Flannery negligently failed to remove the entire device. Finally, they alleged that Dr. Flannery failed to provide informed consent prior to the 1985 and 1989 surgeries. Mrs. Bulebosh pled that she first became aware of Dr. Flannery's potential negligence and her lack of informed consent after an August 8, 2003 surgery performed by Dr. Carl Hasselman.

In his answer and new matter, Dr. Flannery pled that both MCARE's statute of limitations and statute of repose barred maintenance of the action. On March 7, 2011, Dr. Flannery filed a motion for summary judgment premised on those defenses, which was denied on June 16, 2011. On or about January 28, 2013, Dr. Flannery renewed his summary judgment request by means of a motion in limine /motion for reconsideration/petition to file an interlocutory appeal.[2] He asked the court to reconsider its denial of summary judgment in light of two subsequent decisions

Page 1243

of this Court involving the MCARE Act statute of repose: Osborne v. Lewis, supra, and Matharu v. Muir, 2011 PA Super. 134, 29 A.3d 375 (Pa.Super. 2012) ( en banc ). Matharu was thereafter vacated by the Pennsylvania Supreme Court and remanded for reconsideration to this Court, 73 A.3d 576 (Pa. 2013), but we reaffirmed our prior ruling upon remand. Matharu v. Muir, 2014 PA Super 29, 86 A.3d 250 (Pa.Super. 2014) ( en banc ). On March 21, 2013, the trial court again denied the motion, but included in its order the statement required by 42 Pa.C.S. § 702(b) for an appeal by permission pursuant to Pa.R.A.P. 1311. Rather than seek permission from this Court to appeal, however, Dr. Flannery filed an appeal as of right pursuant to Pa.R.A.P. 313.

Appellant presents one issue for our review: " Does the seven-year statute of repose provided by 40 P.S. § 1303.513(a) (effective March 20, 2002) bar claims filed in 2005 by plaintiffs who learned in 2003 that the injuries complained of were caused by malpractice by the defendant in surgeries performed in 1985 and 1989?" Appellant's brief at 5.

The applicability of the MCARE statute of repose presents a question of law for which our standard of review is de novo and our scope of review is plenary. Osborne, supra. We must construe 2002 Pa. LAWS 13 § 5105(b), which provides that the statute of repose in 40 P.S. § 1303.513 [3] " shall apply to causes of action which arise on or after the effective date ...


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