2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

known as extended claims, section 715 requires the claim be made against an eligible providermore than four years after the alleged malpractice, and filed within the applicable statute oflimitations.In Yussen v. MCARE Fund, 17 A.3d 422 (Pa. Commw. Ct. March 24, 2011), thecourt clarified that the date on which the claim “is made” against an eligible provider forpurposes of section 715 can be the date on which the writ of summons is filed in a medicalnegligence case. In Yussen, a doctor submitted a claim to the MCARE Fund on August 30,2007, requesting coverage with respect to a malpractice claim for medical negligence thatallegedly occurred on July 7, 2003. Id. at 423. The Fund denied Section 715 coveragebecause the claim was made less than four years after the alleged malpractice. Id. Inaffirming the Fund’s decision, the court found that the date the writ of summons was filed,June 4, 2007, was the date on which the claim was “made.” Id. Consequently, as the writwas filed less than four years after the alleged malpractice, the doctor was ineligible forcoverage under Section 715. Id. at 424. See also In re Kimberly S. Harnist, MD, MM06-02-014 (filed October 10, 2006) (holding that that the date on which the writ of summonswas filed is the date on which a claim is made).In Polyclinic Medical Center v. MCARE Fund, No. 399 M.D.2010, 2011 WL 9270 (Pa.Commw. Ct. Jan. 4, 2011), the Pennsylvania Commonwealth Court held that the MCARE Fund(the “Fund”) is only required to provide coverage for injuries caused by health care providers asa result of providing medical services, not for injuries caused by third parties, even if the healthcare provider is responsible for the third party.The suit stemmed from an underlying case in which a psychiatric patient sued PolyclinicMedical Center (the “Medical Center”) for failing to properly supervise its employees. Theemployees allegedly failed to properly supervise an “unruly and violent” psychiatric patient. Theunruly patient gained access to a wheelchair that was easily accessible from the psychiatric unit,and crashed the wheelchair into the back of another patient’s leg, causing her “permanentdebilitating pain.” The Fund denied the Medical Center’s claim for excess coverage, and theMedical Center appealed. The issue went to the Insurance Commissioner; however, before theCommissioner ruled, the matter was transferred to the Commonwealth Court pursuant to Fletcherv. Pa. Property and Casualty Guaranty Assoc., 985 A.2d 678 (2009).The Fund argued that, in order to be eligible for MCARE coverage, the claim mustinvolve the provision of medical services, which the instant claim did not. The Medical Centerargued that the claim did, in fact, involve the provision of medical services, including negligenthiring and supervision of employees, specifically “a failure to render adequate medical services.”The court noted that there was no authority on the issue of whether an injury caused by athird party resulted from the provision of medical services. Therefore, the court examined theactual MCARE Act. Section 102 of the Act stated the purpose of the Act to be the creation of “asystem through which a person who has sustained injury or death as a result of tort or breach ofcontract by a health care provider can obtain a prompt determination of his claim.” (quoting 40P.S. § 1301.102) (emphasis in original). The court then examined Section 103 of the Act, anddetermined that “a health care provider is a health center or its equivalent or an agent thereof.”Therefore, the court held, MCARE coverage is available only when a patient is injured by “a105