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Johanna Fletcher, Administratrix of the Estate of Timothy Fletcher v. Pennsylvania Property & Casualty Insurance Guaranty Association and

August 26, 2011

JOHANNA FLETCHER, ADMINISTRATRIX OF THE ESTATE OF TIMOTHY FLETCHER, PETITIONER
v.
PENNSYLVANIA PROPERTY & CASUALTY INSURANCE GUARANTY ASSOCIATION AND COMMONWEALTH OF PENNSYLVANIA, MEDICAL CARE AVAILABILITY AND REDUCTION OF ERROR FUND, RESPONDENTS



The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

Argued: October 13, 2010

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOHNNY J. BUTLER, Judge

OPINION BY JUDGE LEAVITT

Johanna Fletcher, administratrix of the estate of Timothy Fletcher (Decedent), seeks payment from the Medical Care Availability and Reduction of Error Fund (MCARE) on a medical malpractice verdict entered in favor of Decedent.*fn1 Fletcher has filed a declaratory judgment action in this Court's original jurisdiction to have the MCARE Fund held liable for the excess portion of that verdict of $7,727,808.20. Concluding that the MCARE Fund has liability to provide excess coverage on behalf of the physicians who committed the malpractice to the extent the malpractice "occurred" between 1997 and 2001, we grant partial summary judgment to Fletcher.

On December 13, 2002, Fletcher instituted a tort action against several defendants, including, inter alia, Dr. Solomon Kominsky and Dr. Thomas Kubacki and their practice, Kominsky Kubacki Medical Associates, Ltd. (Medical Associates).*fn2 Fletcher alleged that Decedent's death on February 9, 2001, was caused by the medical malpractice of Drs. Kominsky and Kubacki that extended over a ten- year period of time. Dr. Kominsky died in 1998, and Dr. Kubacki died in 2001. Accordingly, Fletcher's complaint named the estates of Drs. Kominsky and Kubacki.

The malpractice complaint alleged that Decedent began treatment at Medical Associates on January 9, 1991, which lasted until January 8, 2001. Fletcher Brief, Exhibit G, Malpractice Complaint, at ¶10 (hereinafter "Malpractice Complaint, ¶___"). Decedent was seen 98 times. Decedent's blood tests in 1991 revealed a cholesterol level of 381 and triglycerides of 760. His liver function studies showed an abnormality due to a fatty liver on the basis of obesity and hyperlipidemia. A gastroenterologist was consulted, who recommended a cardiology consult. However, Dr. Kominsky never followed up on this recommendation for Claimant.

In 1992, Decedent underwent further testing. At that time his blood sugar was high. In 1994, Decedent's cholesterol tested at 481, his triglycerides at 1,991 and his blood sugar at 167. Decedent reported a family history of diabetes and coronary artery disease to his physicians.

In 2000, Decedent began to experience severe fatigue and right shoulder and arm pain, which he reported to a doctor at Medical Associates. Malpractice Complaint, ¶15. No tests were done. Decedent was not treated for diabetes or elevated cholesterol. Instead, he was given the drug Phentermine, which is contraindicated for patients with cardiovascular disease.

On January 27, 2001, Decedent was admitted to the hospital in respiratory distress, where he remained until his death by heart attack 12 days later. At autopsy revealed a severe three-vessel coronary artery disease and middle and lower lobe pneumonia.

The malpractice complaint alleged that the doctors at Medical Associates caused Decedent's death by, inter alia, failing to treat his diabetes, high cholesterol and liver disease; by prescribing Phentermine; and by failing to order a cardiac consultation.

On November 11, 2005, a jury awarded $7 million in damages to Fletcher. After the trial court molded the verdict to include delay damages, the judgment against the estates of Dr. Kominsky and Dr. Kubacki and Medical Associates totaled $7,727,808.20.

PHICO Insurance Company issued a policy of medical malpractice insurance covering Dr. Kubacki and Medical Associates for five successive years: 1997 through 2001.*fn3 The policy provided coverage in the amount of $500,000 per incident of malpractice up to an aggregate $1,500,000. The MCARE Fund provided coverage excess of the PHICO policy in the amount of $1.2 million. In January of 2002, PHICO was placed into liquidation, making the Pennsylvania Property and Casualty Insurance Guaranty Association (Guaranty Association) liable for PHICO claims up to a maximum of $300,000 per claim.*fn4

On April 7, 2006, Fletcher filed a declaratory judgment action, seeking to have this Court order MCARE and the Guaranty Association to pay Decedent's estate its respective portion of the final judgment. Specifically, Fletcher asserted that the Guaranty Association was obligated to pay $300,000 and delay damages on behalf of each defendant in the malpractice action. With respect to MCARE, Fletcher sought payment of $1.2 million and delay damages for Dr. Kubacki and for Dr. Kominsky. Sometime after the complaint was filed, the Guaranty Association and Fletcher resolved their dispute, leaving only MCARE in the case.

MCARE filed preliminary objections to Fletcher's complaint, asserting that this Court lacked jurisdiction. Fletcher v. Pennsylvania Property & Casualty Insurance Guaranty Association (Fletcher I), 914 A.2d 477, 479 (Pa. Cmwlth. 2007). This Court overruled the preliminary objections and, thereafter, certified the jurisdictional question for an interlocutory appeal. The Supreme Court affirmed and remanded the matter to us for further proceedings. Fletcher v. ...


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