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Saul D. Wolfson, M.D v. Medical Care Availability and Reduction of Error Fund

February 7, 2012

SAUL D. WOLFSON, M.D., PETITIONER
v.
MEDICAL CARE AVAILABILITY AND REDUCTION OF ERROR FUND, RESPONDENT



The opinion of the court was delivered by: Bernard L. McGINLEY, Judge

Submitted: July 8, 2011

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY

JUDGE McGINLEY

Saul D. Wolfson, M.D. (Dr. Wolfson), a psychiatrist and participating health care provider in the MCARE Fund*fn1 , has filed Exceptions to the recommended decision of the Commonwealth of Pennsylvania‟s Department of Insurance Hearing Examiner (Hearing Examiner) who found that Dr. Wolfson was not eligible for excess coverage under the MCARE Act.

MCARE Assessments

The MCARE Fund is funded by "assessments" paid by participating health care providers, which are "collected" by the health care provider‟s primary insurance carrier and remitted to the MCARE Fund. Section 712(d)(1) of the MCARE Act, 40 P.S. §1303.712(d)(1). The applicable regulations, 31 Pa.Code §242.6(a)(1)(i) and (a)(3), require that MCARE assessments be received by the MCARE Fund within 60 days from the effective date of a health care provider‟s primary insurance policy. Any health care provider who fails to timely pay the MCARE assessment will not be covered by the MCARE Fund in the event of a loss. 31 Pa.Code §242.17(b).

The regulations govern when and how the assessments must be remitted to the MCARE Fund. Section 242.6 of the regulations, 31 Pa.Code §242.6, set forth the primary insurer‟s responsibilities to: (1) collect the MCARE Fund assessment from the health care provider; (2) notify the MCARE Fund, by a Form 5116 or Declarations Page, that the health care provider purchased basic coverage professional liability insurance and paid the MCARE Fund assessment; and (3) submit the MCARE Fund assessment to the MCARE Fund on a "Form 216-Remittance Advice."

Here, Dr. Wolfson‟s primary professional liability insurance coverage was obtained through an American Psychiatric Association endorsed program, "The Psychiatrists‟ Program," pursuant to which policies were issued to Dr. Wolfson by National Union Fire Insurance Company of Pittsburgh (National Union). The Psychiatrists‟ Program is administered by Professional Risk Management Services (PRMS).

National Union issued a basic coverage "claims made" professional liability insurance policy to Dr. Wolfson for the period November 1, 2004, through November 1, 2005. National Union Fire Insurance Company of Pittsburgh Psychiatrists Professional Liability Insurance Policy; Reproduced Record (R.R.) at A27-A41.

On November 5, 2004, Dr. Wolfson submitted an on-line application for an "abatement" of his 2004 MCARE Fund Assessment.*fn2

PRMS first billed Dr. Wolfson for his 2004 MCARE Fund Assessment on December 1, 2004. On that date, PRMS sent Dr. Wolfson a Notice entitled "2004 MCARE Fund Surcharge Payment," for 100% of the MCARE surcharge for 2004 in the amount of $3,696.00, to be paid within 10 days of the Notice. The Notice stated that "if you did not apply for the 50% abatement, the full 100% amount is due." Notice, December 1, 2004, at 1; R.R. at A95.

In the meantime, on December 7, 2004, Dr. Wolfson received a medical records request dated December 1, 2004, from Dennis Pomo, Esquire (Attorney Pomo). Attorney Pomo stated that he represented Dr. Wolfson‟s patient, Joseph Maurer (Mr. Maurer), "now deceased" in a "claim for personal injuries." Letter from Dennis A. Pomo, Esquire, to Saul D. Wolfson, M.D., December 1, 2004, at 1; R.R. at A97. Attorney Pomo requested copies of Mr. Maurer‟s "medical records, reports, notes, [and] medication lists" for the purposes of "litigation/legal matters." Attorney Pomo enclosed a medical authorization signed by Mr. Maurer‟s wife, Bernadette Maurer. Authorization for Health Information Disclosure, December 2, 2004, at 1; R.R. at A100.

On December 7, 2004, Dr. Wolfson faxed Attorney Pomo‟s letter to David J. Torrance, Esquire, Senior Litigation Specialist at PRMS, seeking his assistance. On the fax cover sheet, Dr. Wolfson included the following information: (1) date he first saw Mr. Maurer; (2) date of his final visit; (3) total number of visits; (4) date of birth; (5) date of death; and (6) date of obituary. Fax to David Torrance, Esq., from Saul Wolfson, M.D., December 7, 2004, at 1; R.R. at A99.

Attorney Torrance, in turn, assigned the matter to David Bagby, Esquire, to "assist Dr. Wolfson in his response to the medical records request." Letter to John Bagby, Esq., from David Torrance, Esq., December 8, 2004, at 1; R.R. at A101.

On December 28, 2004, MCARE Fund confirmed Dr. Wolfson‟s eligibility for a 50% abatement of his 2004 MCARE Fund Assessment.

On January 14, 2005, PRMS sent Dr. Wolfson a revised MCARE Fund Assessment Notice based on his eligibility for the 50% abatement. The payment in the amount of $1,848.00, was due within 10 days of the date of the Notice. MCARE Fund Surcharge Payment Notice, January 14, 2005, at 1, R.R. at A143-A145.

Dr. Wolfson paid his abated 2004 MCARE Fund Assessment to PRMS in full by check in the amount of ...


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