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Kinney-Lindstrom v. Medical Care Availability and Reduction of Error Fund

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


April 29, 2009

LISA KINNEY-LINDSTROM AS PARENT AND NATURAL GUARDIAN OF SAMANTHA LINDSTROM, A MINOR, AND ALEC LINDSTROM, A MINOR, AND AS THE ASSIGNEE OF DR. S., PETITIONER
v.
MEDICAL CARE AVAILABILITY AND REDUCTION OF ERROR FUND, SUCCESSOR IN INTEREST TO THE MEDICAL PROFESSIONAL LIABILITY CATASTROPHE LOSS FUND, RESPONDENT

The opinion of the court was delivered by: Rochelle S. Friedman, Senior Judge

AMENDING ORDER

AND NOW, this 29th day of April, 2009, this court's order of April 28, 2009, is amended to read as follows:

AND NOW, this 28th day of April 2009, upon consideration of "Respondent's Application Pursuant to Pa. R.A.P. 123 for Reargument En Banc or, in the Alternative, for Amendment of Order Dated March 23, 2009, to Include Statement Prescribed by 42 Pa. C.S. §702(b)" (Application), and the response thereto, it is hereby ordered as follows:

1. Respondent's Application is denied to the extent Respondent seeks re-argument en banc.

2. Respondent's Application is granted to the extent Respondent seeks amendment of the March 23, 2009, order to include the statement prescribed by 42 Pa. C.S. §702(b) with respect to the "delay damages and post-judgment interest" issue.

3. Because Respondent does not object to Petitioner's request for amendment of the March 23, 2009, order to include the statement prescribed by 42 Pa. C.S. §702(b) with respect to the "occurrences" issue, Petitioner's request is granted.

4. The March 23, 2009, order is amended to read as follows: AND NOW, this 23rd day of March 2009, it is hereby ordered that the motion for summary judgment filed by the Medical Care Availability and Reduction of Error Fund (MCARE Fund) is granted in part. Judgment is entered in favor of the MCARE Fund with respect to whether this case involved one or two occurrences of medical malpractice under section 715(b) of the Medical Care Availability and Reduction of Error Act, Act of March 20, 2002, P.L. 154, 40 P.S. §1303.715(b). In all other respects, the motion is denied.

In addition, this court is of the opinion that the issues raised by the MCARE Fund's motion involve controlling questions of law as to which there is substantial ground for difference of opinion and that an immediate appeal from this order as to those issues may materially advance the ultimate termination of the matter.

20090429

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