2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

egan to run upon service of a bare writ of summons. See id. at 1047. In addressing this issue,the court first looked to the language of section 715. See id. at 1049. The court found that insection 715, the language “the claim” refers specifically to a medical malpractice claim subjectto section 715 coverage. Id. The court contrasted the language of section 715 with that ofsection 714, which refers to “any claim.” See id. at 1050. Because the legislature used “theclaim” in section 715, the court determined that the statutory time period begins to run when theprovider is first given notice that “the claim” against him is eligible for section 715 coverage. Id.Thus, the court held that the 180-day reporting period under section 715 does not begin to rununtil a provider receives notice that the claim against him is eligible for section 715 coverage,which, the court held, is not provided by a bare Writ of Summons. The bare Writ of Summonsdoes not provide enough information for a provider to determine whether or not the claim iseligible for section 715 coverage and will not start the 180-day statutory reporting period. Id. at1052; see also Upper Bucks Orthopedic Ass’n v. Ins. Comm’r of the Commw. of Pa., 2008 Pa.Commw. LEXIS 387 (Pa. Commw. Ct. Aug. 18, 2008).MCARE also ensures that all health care providers may be afforded access to malpracticeinsurance through the creation of the Pennsylvania Liability Joint Underwriting Association. 40Pa. Cons. Stat. § 1303.731. It is the purpose of the Joint Underwriting Association to offermalpractice insurance to physicians who cannot conveniently obtain insurance at reasonablerates through ordinary methods. Id. The Joint Underwriting Association is comprised of allinsurers authorized to write malpractice insurance in the Commonwealth. Id.The Pennsylvania Senate voted in early November of 2007 to approve Senate Bill 1137,which would extend the MCARE abatement program for another year, while also preparing forits eventual elimination. The MCARE abatement program was subsequently repealed. Act ofOct. 9, 2009, Pub. L. 537, No. 2009-50. According to the Pennsylvania InsuranceDepartment website, “[t]o date, legislation authorizing abatement of the MCAREassessment has not been enacted.” Pa. Ins. Dept., Expired Abatement Program,http://www.portal.state.pa.us/portal/server.pt/community/additional_resources/12990/expired_abatement_program/608424 (last visited January 4, 2012).The Commonwealth Court has addressed two cases dealing with the Act of October 9,2009, and issued both opinions on April 15, 2010. Hospital and HealthSystem Association ofPennsylvania v. Commonwealth, 997 A.2d 392 (Pa. Commw. Ct. 2010); Pennsylvania MedicalSociety v. Department of Public Welfare, 994 A.2d 33 (Pa. Commw. Ct. 2010). Hospital dealtwith the transfer of $100 million from the MCARE Fund to the General Fund pursuant toOctober 9, 2009’s Act No. 2009-50. After the Treasury Department effectuated the transfer,petitioners filed an application for summary relief, based on § 712(k) of the MCARE Act, whichstated that when the MCARE Fund was phased out, any money remaining in the Fund would bereturned to participating health care providers. After finding that the petitioners had standing tobring their claim, the Court found that they had a vested right in the monies in the MCARE Fundbased on § 712(k)’s “guarantee that . . . the money was to be returned to the contributing healthcare providers” when the Fund was phased out. (emphasis added). The court therefore grantedpetitioners’ application for summary relief, and held that the transfer of money from the MCAREFund to the General Fund was unlawful since it interfered with petitioner’s vested right to themoney once the MCARE Fund is phased out.107