AND NOW, this 2nd day of April, 2009, it is ordered that the opinion filed on March 23, 2009, shall be designated OPINION rather than MEMORANDUM OPINION, and shall be reported.
The Medical Care Availability and Reduction of Error Fund (MCARE Fund) has filed a motion for summary judgment (Motion) in connection with the petition for review filed by Lisa Kinney-Lindstrom (Parent) as Parent and Natural Guardian of Samantha Lindstrom, a Minor, and Alec Lindstrom, a Minor, and as the Assignee of Dr. S. in this court's original jurisdiction. We grant the Motion in part and deny the Motion in part.
In May 2003, Parent filed a medical malpractice action against Dr. S. in federal district court. The MCARE Fund defended Dr. S., and, although the parties discussed settlement, the action proceeded to trial. At trial, Parent presented expert medical testimony to show that, before Parent gave birth to twins on November 4, 1995, Dr. S. failed to diagnose Parent as suffering from a chorioamnionitis infection. As a result of this failure, both babies were infected. When the trial concluded, the jury awarded $6.25 million for Alec Lindstrom's injuries and $6.9 million for Samantha Lindstrom's injuries, for a total verdict of $13.15 million.
Parent filed a motion to mold the verdict to include delay damages, and Dr. S. filed post-trial motions. However, on August 23, 2006, Parent, Dr. S. and the MCARE Fund entered into a Settlement Agreement, Assignment of Certain Rights and Provisional Full and Final Release (Agreement). The Agreement provided that: (1) the MCARE Fund would make a single $1 million payment to Parent for the benefit of Alec and Samantha, plus an amount for delay damages and post-judgment interest; (2) Dr. S. would withdraw his post-trial motions following approval of the Agreement; (3) Dr. S. would assign to Parent his right to litigate whether the MCARE Fund is required to pay a second $1 million for two occurrences of medical malpractice, as well as unpaid delay damages and post-judgment interest on the verdict; (4) Parent would bring a declaratory judgment action in Commonwealth Court to decide those issues; and (5) the MCARE Fund would waive any requirement that Parent exhaust her administrative remedies before filing the declaratory judgment action.
The federal court approved the Agreement, and the MCARE Fund made the single $1 million payment, plus delay damages and post-judgment interest on that amount. Parent then filed her Petition seeking a declaratory judgment with this court on the above issues, and the MCARE Fund filed a response. Parent filed a motion for summary judgment, which this court denied. See Kinney-Lindstrom v. Medical Care Availability and Reduction of Error Fund, (Pa. Cmwlth., No. 18 M.D. 2007, filed December 8, 2008) (Kinney-Lindstrom I). The MCARE Fund now has filed its Motion, which is before us for disposition.*fn1
The first question is whether the MCARE Fund is liable in this case for one or two occurrences under section 715(b) of the Medical Care Availability and Reduction of Error Act (MCARE Act), Act of March 20, 2002, P.L. 154, 40 P.S. §1303.715(b). Section 715(b) provides as follows:
If a health care provider is found liable for a claim defended by the department in accordance with subsection (a), the claim shall be paid by the fund. The limit of liability of the fund for a claim defended by the department under subsection (a) shall be $1,000,000 per occurrence.
In Kinney-Lindstrom I, this court held that the failure of Dr. S. to promptly perform an amniocentesis, or consult a specialist, to determine whether a chorioamnionitis infection was present in the uterus of Parent constitutes a single occurrence. See Kinney-Lindstrom I (citing Donegal Mutual Insurance Company v. Baumhammers, 595 Pa. 147, 938 A.2d 286 (2007)). The MCARE Fund has paid $1 ...