EMAIL TO A FRIEND COMMENT

 

Duty to Defend Actions Arising Out of Pediatrician's Sexual Assaults


Two former patients sued a pediatrician claiming he had sexually assaulted them when he provided medical care to them. The suits also asserted claims against the hospital and physicians’ group where the doctor worked for vicarious liability; breach of duties to report his misconduct to third parties; breach of duties to their patients in credentialing and retaining the doctor; failure to supervise and monitor the medical care he was providing; failure to maintain safe and adequate facilities; and breach of duties to promulgate standards, procedures and rules to ensure quality care and safety for patients.

 

The hospital and physicians’ group submitted written requests to the Medical Care Availability and Reduction of Error (MCARE) Fund for defense and indemnification for the actions pursuant to Section 715 of the MCARE Act, 40 P.S. § 1303.715, which provides coverage to participating health care providers for medical professional liability claims asserted more than four years after the alleged malpractice. The Fund denied coverage to the physicians’ group on the ground that it is not an entity entitled to coverage under the MCARE Act and denied coverage to the hospital because it concluded that the claims in the actions do not constitute medical professional liability claims.

 

The hospital and physicians’ group filed a Petition for Review seeking reversal of the denial of coverage and an order directing the Fund to provide defense and indemnification coverage to them for the actions. They filed a motion for partial summary judgment.

 

The Commonwealth Court of Pennsylvania denied the motion for partial summary judgment in its entirety as to the physicians’ group and denied the motion in part and granted it in part as to the hospital. The court held that factual issues precluded summary judgment that the group was a health care provider, the claims by the victim never treated by the hospital were not covered, vicarious liability claims against the hospital were not covered, the claims against the hospital for failure to warn and failure to report the physician’s conduct were not covered, the claim against the hospital for failing to supervise and chaperone the pediatrician's treatment was a covered “medical professional liability claim,” the claim against the hospital for negligent credentialing was not covered, and the MCARE Fund did not owe a duty to defend the covered and non-covered claims.

 

To be entitled to any coverage from the Fund under Section 715 of the MCARE Act for defense or indemnity, the party seeking coverage must show both 1) that it is a participating health care provider and 2) that the action at issue asserts a medical professional liability claim against it. Section 103 of the MCARE Act defines “health care provider” as, “A primary health care center or a person, including a corporation, university or other educational institution licensed or approved by the Commonwealth to provide health care or professional medical services as a physician, a certified nurse midwife, a podiatrist, hospital, nursing home, birth center and except, as to section 711(a), an officer, employee or agent of any of them acting in the course and scope of employment.”

 

Factual issues precluded summary judgment that the physicians’ group was a health care provider. The physicians’ group failed to show that it was a “health care provider” under the MCARE Act. It did not aver that it was a “primary health care center,” which is defined by the MCARE Act as a “community-based nonprofit corporation meeting standards prescribed by the Department of Health which provides preventive, diagnostic, therapeutic and basic emergency health care by licensed practitioners,” nor did it plead that it was licensed or approved by the Commonwealth to provide health care or professional medical services. In addition, it made no showing that it was an entity that was required to participate in the Medical Professional Liability Catastrophe Loss Fund. The only information that the physicians’ group provided consisted of the vague and insufficient averment that it provided health care services at medical facilities such as hospitals. The court reasoned that because the physicians’ group did not establish that it was an entity entitled to coverage under the MCARE Act, it was not entitled to judgment in its favor, regardless of whether the claims against it were medical professional liability claims. Accordingly, the court denied the motion for partial summary judgment with respect to the physicians’ group.

 

The Fund accepted that the hospital was a health care provider under the MCARE Act.  The court went on to analyze whether the claims arising out of the pediatrician's sexual assaults asserted any “medical professional liability claims” against the hospital. The term “medical professional liability claim” is defined by the MCARE Act as “[a]ny claim seeking the recovery of damages or loss from a health care provider arising out of any tort or breach of contract causing injury or death resulting from the furnishing of health care services which were or should have been provided.” 40 P.S. § 1303.103. For a claim to constitute a medical professional liability claim covered by the Fund under Section 715 of the MCARE Act, it must therefore arise directly from the provision of health care services. Where the only health care services at issue were provided by others and not by the defendant, the claims against that defendant do not arise directly from the provision of health care services and are not covered by the MCARE Act. In addition, to meet the MCARE Act's requirement that the claim result from “the furnishing of health care services,” the claim must allege conduct by the defendant that involved some exercise of a medical skill associated with specialized training.

 

Claims by the victim never treated by the hospital were not covered. One of the sexual assault victims was never treated by the hospital. In the absence of any contention by this victim that she was treated at the hospital or that individuals for whom the hospital was claimed to be liable other than the pediatrician furnished health care to her, any claims in her action that the hospital furnished health care services to her were necessarily predicated on the contention that the hospital was vicariously liable for the pediatrician's conduct. Those claims were not covered by the MCARE Act. Sexual assaults perpetrated by a physician during the course of medical care as a matter of law did not constitute the furnishing of health care services. Accordingly, claims based on the pediatrician’s treatment and not on any other furnishing of heath care services by the hospital did not constitute “medical professional liability” claims.

 

The vicarious liability claims against the hospital were not covered. The claims based on vicarious liability were not covered by the MCARE Act because the pediatrician's conduct did not constitute the furnishing of health care services, and, therefore, were not “medical professional liability claims.”

 

The claims against the hospital for failure to warn and failure to report the pediatrician’s conduct were not covered. Claims of failure to warn patients or other third parties and claims of failure to report the pediatrician’s conduct to government authorities were likewise not covered by the MCARE Act because they did not arise directly from the furnishing of medical services. Therefore, they were not “medical professional liability claims.”

 

The claim against the hospital for failing to supervise and chaperone the pediatrician's treatment was a covered “medical professional liability claim.” The claim asserted was that medical standards governing the treatment of pediatric patients required a chaperone or parental presence and the hospital policy discouraging parents from being present when their child was treated violated pediatric care standards. Although providing chaperones or permitting parental presence did not require a high level of intellectual skill or advanced training, it involved sufficient skill and specialized training to be covered as a professional liability claim under the Malpractice Act. Because the hospital demonstrated that the negligent failure to chaperone claim asserted against it in one action was a “medical professional liability claim,” it was entitled to defense coverage from the Fund for that claim under Section 715(a) of the MCARE Act.

 

The claim against the hospital for negligent credentialing was not covered. The claim against the hospital for negligent credentialing alleged that the hospital was negligent in failing to fulfill procedural requirements for credentialing, such as conducting background checks and documentation of the credentialing and recredentialing process. The plaintiff’s expert opined only that the hospital was negligent in failing to obtain full and adequate information concerning the pediatrician in its investigation, not that it negligently determined that the pediatrician was competent in his medical skills and abilities. Because the claim against the hospital for negligent credentialing did not involve a failure by the hospital to exercise any medical judgment or skill, it was not a “medical professional liability claim” covered by the MCARE Act.

The Fund did not owe a duty to defend both covered and non-covered claims. The MCARE Act was a legislative enactment, not a private insurance policy. Where insurance policy language differs from the MCARE Act or the case law governing private insurance conflicts with the MCARE Act's language or purpose, it was the MCARE Act's provisions that govern the Fund's liability, not the law of private insurance. The language of Section 715(a) of the MCARE Act was different from insurance policy language concerning the duty to defend. Section 715(a) provides that the Fund's obligation was to defend claims that meet its coverage requirements, not actions or suits in which such claims are asserted. Because the Fund's obligation under Section 715(a) was to defend covered claims, not actions against the health care provider, it was not automatically obligated to pay all defense costs in an action that asserts claims that are not “medical professional liability claims,” simply because the plaintiff has also pleaded a covered claim in the same action.

 

The Commonwealth Court of Pennsylvania denied the motion for partial summary judgment in its entirety as to the physicians’ group. The court denied the motion in part as to the hospital with respect to the claims by the victim who was not treated by the hospital and with all but one claim of the other victim and granted it in part as to the hospital with regard to the other victim’s negligent failure to chaperone claim. The Fund only had a duty to defend the hospital with regard to the negligent failure to chaperone claim.

 

See: Aria Health v. Medical Care Availability and Reduction of Error Fund, 2014 WL 1272406 (Pa.Cmwlth., March 31, 2014) (not designated for publication). 

 

 

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