Original jurisdiction in the case of Thomas J. Judge, Sr., as Director of the Medical Professional Liability Catastrophe Loss Fund of the Commonwealth of Pennsylvania v. Allentown and Sacred Heart Hospital Center and The Hartford Insurance Group.
Don A. Leatherman, with him Robert W. Waeger, Skarlatos & Zonarich, for plaintiff, Thomas J. Judge, Sr.
Harry J. Stefchak, Chief Counsel, for plaintiff, Medical Professional Liability Catastrophe Loss Fund of the Commonwealth of Pennsylvania.
Frank A. Baker, III, with him Gary S. Figore and Richard F. Stevens, Butz, Hudders & Tallman, for defendant, Allentown and Sacred Heart Hospital Center.
Robert H. Holland, with him Barbara L. Hollenbach, Holland, Taylor and Sorrentino, for defendant, The Hartford Insurance Group.
John J. Dautrich, White & Williams, of counsel: David W. Marston, Barton L. Post, Post and Schell, P.A., and Alison Douglas Knox, Montgomery, McCracken, Walker & Rhoads, for defendant, Allen Neurosurgical Association, Inc.
President Judge Crumlish, Jr. and Judges Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Williams, Jr.
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For disposition are preliminary objections in the nature of demurrers filed by the Hartford Insurance Group (Hartford or Defendant) and its insured, the Allentown and Sacred Heart Hospital Center (Hospital Center or Defendant), to an amended complaint in assumpsit filed by the Director of the Medical Professional Liability Catastrophe Loss Fund (Fund or Plaintiff). In this original action,*fn1 the Fund demands judgment in indemnity and in equitable subrogation against Defendants as non-contributing parties to the settlement of a medical malpractice action.
The Fund is an executive agency of the Commonwealth of Pennsylvania, established by Article VII of the Health Care Services Malpractice Act (Act),*fn2 and designed to provide statutory excess liability coverage
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for health care providers (providers) in the Commonwealth. As the statutory excess liability carrier the Fund satisfies all awards, judgments and settlements arising from medical malpractice actions against eligible providers to the extent a provider's liability share exceeds his basic coverage insurance.*fn3 Section 701(d) of the Act, 40 P.S. § 1301.701(d). The Fund is funded exclusively by the annual and emergency surcharging of participating providers and by income generated from the investment of such contributions. Section 701(e)(4) of the Act, 40 P.S. § 1301.701(e)(4).
The present action arose from the following sequence of events. The Hospital Center and two of its staff members, a neurosurgeon and an anesthesiologist, were participating providers when Eugene Issermoyer entered the Hospital Center for minor surgery to correct an irritating facial tic in February 1977. As a result of surgery, Mr. Issermoyer sustained permanent paralysis in both legs and his left arm. In June 1978, the Issermoyers (husband and wife) filed a Complaint with the Arbitration Panels for Health Care naming as defendants, among others, the Hospital Center and the two operating staff physicians. After thirty months of discovery and negotiations, the ...