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Can MCARE be Liable for More Than One “Occurrence” for the Same Physician in the Same Case?

Healthcare Alert | August 21, 2013
By: Don Ladd and Debra Weinrich

According to a Supreme Court of Pennsylvania decision this week in Kinney-Lindstrom v. Medical Care Availability and Reduction of Error Fund, -A.3d -, 2013 WL 4410996, Pa., August 19, 2013, yes, that is a possibility.

In a dispute where a jury found an obstetrician was negligent and injured a set of twins, it was argued that MCARE should be responsible for two $1 million payments based on two “occurrences.” Ultimately, the Court rejected the argument that an occurrence should be defined under an “effects” approach which examines the number of individual claims or injuries that result from acts of negligence. Instead, the Court elected the “cause” approach which focuses on the act of the insured that gave rise to liability and determines whether there is a single or multiple causes of the damages. The Court established that the number of occurrences under section 715 of the MCARE Act is determined by examining whether there is one or multiple instances of professional negligence that caused the harm alleged and that the number of victims of medical malpractice is not controlling when considering the MCARE Fund’s liability limit. Importantly, each instance of negligence must be associated with a distinct injury.

For more information regarding this alert, please contact Don Ladd (laddd@whiteandwilliams.com; 215.864.7118) or Debra Weinrich (weinrichd@whiteandwilliams.com; 215.864.6260).

This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.
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