SOURCE: Modern Healthcare

UPMC faces a medical malpractice suit stemming from a liver transplant in 2003 after the Pennsylvania Supreme Court threw out a state law barring malpractice lawsuits after seven years.

In a 4-3 decision Thursday, the state ruled that the statute of repose, passed in 2002, unconstitutionally violates the right of access to the courts and lacks any substantial relationship to the legislative goal of controlling malpractice insurance costs and premiums.

That means the Yanakos family can proceed with their liability suit against the Pittsburgh-based health system and two of its physicians for taking a liver lobe donation from Christopher Yanakos to transplant into his mother Susan even though Christopher had the same genetic liver disease as she did.

One of the dissenting justices wrote that the majority decision and concurrence “flout” the Legislature’s policymaking authority and that “it is not this court’s role to upend duly enacted legislation simply because we might sometimes deem it imperfect or unwise.”

A number of states have enacted statutes of repose limiting medical liability suits, though courts in at least six other states — Alabama, Indiana, Kentucky, New Hampshire, Rhode Island and Utah — have struck them down.

A statute of repose is an absolute bar to claims being brought after a certain period of time regardless of whether the injury is discovered later or the claim accrues later. In contrast, the time limitation in a statute of limitations can be waived or tolled.

“The family felt aggrieved that their case was barred because of the arbitrary seven-year limitation, and they’re glad to be able to assert their rights in court,” said Patrick Cavanaugh, the attorney who represents the Yanakos family.

UPMC and its attorney did not respond to a request for comment.

According to the court decision, UPMC’s doctors tested Christopher Yanakos to see if he had Alpha-1 antitrypsin deficiency but never informed him of the results. They went ahead with Susan Yanakos’ liver transplant using his donated liver lobe.

Eleven years later, the family found out that Susan still had AATD, which the transplant should have eliminated. That was discovered during a routine blood test, after which Christopher was tested and also found to have AATD.

The family filed a malpractice suit in 2015 against UPMC, University of Pittsburgh Physicians and two physicians. The trial court dismissed the case based on the seven-year statute of repose. That ruling was upheld by an appellate panel in 2017.

But the Supreme Court majority overturned that ruling. It said the Legislature did not cite any statistics on the number of malpractice suits started after seven years of the alleged injury when it passed the statute of repose and offered no support for the idea that a seven-year limit would have any effect on insurance costs.

Both Susan and Christopher Yanakos are still alive. Christopher may need a liver transplant in the future, though the procedure may be more difficult because his liver was surgically altered during the lobe donation, according to Cavanaugh

“The family assumed that if the liver transplant went forward, the doctors would use a healthy liver,” Cavanaugh said. “It was a safe assumption by the family that Christopher didn’t have AATD, but in fact he did. There’s no way the plaintiffs could have found all that out within seven years.”