2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

health center or its equivalent or an agent thereof,” which the unruly patient was not. In otherwords, the Fund is not required to provide coverage when the alleged injury was the result of atort by a fellow patient.In West Penn Allegheny Health Sys. v. MCARE, No. 101 M.D. 2010, 2010 WL 5156806(Pa. Commw. Ct. Dec. 21, 2010), the Commonwealth Court was called upon to determine theaggregate liability limit under Section 715 extended claims. The MCARE Fund accepted a suitagainst West Penn as an extended claim under section 715. However, the Fund noted that theaggregate limit for that year was $2,700,000 (set by the Malpractice Act and CAT Fund, as thecause of action arose in 1998), and that the Fund would only pay $394,917 of the judgmentagainst West Penn, as that amount would cause the yearly aggregate limit to be met.Section 715 of the MCARE Act sets the Fund’s liability limit in extended claims as$1,000,000 per occurrence. Nowhere is an annual aggregate limit set for extended claims.However, section 712 sets forth both a per occurrence limit and an annual aggregate limit forMCARE’s normal excess coverage claims. The Fund argued that extended claims are subject tosection 712’s aggregate yearly limit, while West Penn argued that they are not, and that MCAREmust pay the $1,000,000 per occurrence limit in this judgment against West Penn.The court agreed with West Penn, finding that the Pennsylvania General Assemblycreated a difference between excess and extended claims. The court looked to the CAT Fund’sper occurrence and annual aggregate liability limits, and found that while the limits were set outfor excess claims, no limits were set out for extended claims, which meant that to find theliability limits for extended claims under the CAT Fund, one had to look to the excess claimslimits. The court noted that MCARE differs from the Malpractice Act’s CAT Fund, in thatSection 712 of MCARE sets forth per occurrence and annual aggregate limits for excesscoverage claims, but Section 715 also sets forth a per occurrence limit for extended claims,which is different than the per occurrence limit for excess claims. Therefore, the court concludedthat, “unlike in the Malpractice Act, there is no need to resort to Section 712 to find limits onliability for extended claims,” and that an annual aggregate liability limit for excess claims doesnot apply to extended claims, so the Fund is required to pay the full $1,000,000 towardssatisfying the judgment against West Penn.Also, for the Fund to provide section 715 coverage, the Fund must receive a writtenrequest for coverage within 180 days of an eligible provider’s first notice of the claim. TheCommonwealth Court examined whether a Writ of Summons constitutes adequate notice to aprovider by which the 180 day statutory period begins to run. See Cope v. Ins. Comm’r of theCommw., 955 A.2d 1043 (Pa. Commw. Ct. 2008). In Cope, the eligible healthcare provider wasserved with a Writ of Summons containing no factual information. See id. Approximatelynineteen months later, on February 1, 2006, Plaintiffs filed and served a professional liabilityComplaint alleging malpractice between April and June, 2000. See id. On February 12, 2006,the Fund received an MCARE claim from the provider requesting section 715 coverage. See id.The Fund denied coverage on the basis that the provider had not notified it of the claim withinthe timeframe required by section 715. See id. The provider appealed this decision.At issue before the Commonwealth Court was whether the Fund erred as a matter of lawin finding that the medical provider’s 180-day statutory period to request section 715 benefits106