OPINION BY
Jоhanna 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.
On December 13, 2002, Fletcher instituted a tort action against several defendants, including, inter alia, Dr. Solomon Komin-sky and Dr. Thomas Kubacki and their practice, Kominsky Kubacki Medical Associates, Ltd. (Medical Associates).
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. Decеdent’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 аt 167. Decedent reported a family history of diabetes and coronary artery disease to his physicians.
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. Ku-backi 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.
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 wаs 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),
After the remand, MCARE filed an answer and new matter, asserting that it was not responsible to Fletcher for two reasons. First, each of the PHICO policies covering the malpractice defendants was a claims-made policy that had expired before Fletcher filed her medical malpractice lawsuit.
Fletcher filed a motion for summary judgment.
The malpractice complaint alleged that Decedent was the victim of negligence over a ten-year period from 1991 through 2001, when Decedent died. Where a malpractice claim is based upon a series of negligent acts that take place over time, the plaintiff may not assert a claim under each policy covering that period of time and stack the maximum amount of coverage provided under each poliсy.
Fletcher asserts the Decedent’s injury occurred in 2000 because that is when his injury “became reasonably apparent.” From the beginning of Decedent’s malpractice lawsuit, that was Fletcher’s position. She points to paragraph 15 of the underlying medical malpractice complaint, which states:
15. In approximately mid-year 2000 plaintiff’s decedent, Timothy Fletcher, started to become severely fatigued and complaining of right shoulder аnd arm pain. These complaints were made known to Dr. Simon who at the time was filling in for the other physicians in this case.
Malpractice Complaint, ¶ 15 (emphasis added). Notably, this was Fletcher’s position long before it could be known that the date would have significance with respect to this MCARE coverage dispute.
MCARE opposes the motion for summary judgment for two reasons. First, MCARE argues that Fletcher is not entitled to summary judgment because there are material factual issues in dispute. These facts include the apportionment of liability among the physicians who treated Decedent from 1991 to 2001, making summary judgment beyond our ability to grant.
In response to MCARE’s first argument that Dr. Simon’s settlement precludes a grant of summary judgment, Fletcher filed a Joint Tortfeasor Release executed by Fletcher and Dr. Simon. That Release expressly states that Fletcher’s recovery agаinst the other defendants will not be reduced by Dr. Simon’s settlement unless Simon is judicially determined to be a joint tortfeasor. MCARE countered by filing a motion to strike the Release, arguing that the Release should have been filed with the motion for summary judgment.
We begin with MCARE’s motion to strike. As we explained in Commonwealth v. Diamond Shamrock Chemical Company,
Here, Fletcher filed the Release and supporting affidavit in response to MCARE’s assertion that Dr. Simon was a joint tortfeasor and, thus, partially liable for the malpractice verdict entered in favor of Decedent. MCARE’s assertion was not anticipated at the time Fletcher filed her summary judgment motion аnd, thus, she did not include the Release as a document in support of her motion. It is within the Court’s discretion to allow the record to be supplemented by the Release, and we do so here. Accordingly, we deny MCARE’s motion to strike.
We turn now to the motion for summary judgment. Fletcher requests a judgment that MCARE is liable for excess coverage for malpractice of Dr. Kubacki and Medical Associates that took place from 1997 through 2001. MCARE’s response to this argument is that the medicаl defendants lacked primary coverage and, in any case, MCARE was not paid the required surcharge. MCARE concedes that it was paid the requisite surcharge at the time the claims-made policies were issued to the defendant medical providers, but it denies that it was paid a specific surcharge to cover “tail” claims, ie., those presented after expiration of the claims-made PHI-CO policies.
Fletcher notes that in MCARE’s answer to Fletcher’s interrogаtories, it stated that
[o]n December 13, 2004, PHICO reported primary insurance tail coverage, or its substantial equivalent, for Dr. Ku-backi.
Fletcher Brief, Exhibit B, at 3. Further, on December 21, 2001, PHICO notified the CAT Fund that it was providing tail coverage for any physician it had insured for at least 48 months prior to retirement at no additional premium. Fletcher Brief, Exhibit B, at 12. Dr. Kubacki retired in April of 2000. In addition, in its answers to interrogatories, PHICO stated that from 1997 onward, MCARE charged healthcare providers the identical surcharge regardless of whether they held a claims-made or occurrence policy. In sum, MCARE was paid all surcharges it was due, and there is no dispute on this fact as to 1997 and later.
MCARE concedes that PHICO provided tail coverage to Dr. Kubacki and Medical Associates for no additional premium, but it argues that this fact is irrelevant. It contends that the medical provider defendants also needed “Meare tail coverage.”
(1) The Fund will be relieved of its responsibility to a health care provider to defend and indemnify a claim reported to the Fund under section 605 of the act (40 P.S. § 1301.605) if, at the time of the occurrence, the health care provider fails to maintain basic coverage insurance in compliance with the act and this chapter.
(2) Notwithstanding paragraph (1), if at the time of the occurrence the health care provider is insured on a claims made basis and thereafter failsto purchase the reporting endorsement, prior acts coverage or its substantial equivalent upon cancellatin or non-renewal of the claims made policy, and subsequently a claim is reported to the Fund under section 605 of the act (40 P.S. § 1301.605), the Fund will be relieved of its responsibility to thehealth care provider to defend and indemnify the claim under section 605 of the act.
31 Pa.Code § 242.17(d)(1) and (2) (emphasis added).
This regulation says nothing about “Meare tail coverage.” It simply requires all health care providers to havе “basic insurance coverage” when a claim is presented. Dr. Kubacki and Medical Associates had “basic insurance coverage” and an “extended reporting endorsement.” MCARE was aware of how PHICO priced its extended reporting endorsement and received reports of tail coverage. This fact is not in dispute. Further, MCARE does not identify any mechanism, let alone duty, by which Dr. Kubacki and Medical Associates could purchase the mysterious “MCARE coverage” when they received their extended reporting endorsements from PHICO.
MCARE’s other surcharge argument focuses on the period from 1991 to 1997, when the surcharge calculation methodology changed.
In Gingerlowski v. Commonwealth Insurance Department,
In Paternaster v. Lee,
In Dellenbaugh v. Commonwealth Medical Professional Liability Catastrophe Loss Fund,
These cases are distinguishable. Fletcher does not seek coverage for a claim that may have “occurred” between 1991 and 1997. Fletcher asserts that the 2000 policy is liable for Decedent’s claim. Dr. Kubacki and Medical Associates had coverage for claims occurring between 1997 and 2001, regardless of when the claims were reported to the insurer. Likewise, the medical defendants were current on their MCARE surcharges during that period of time.
MCARE’s position that it does not owe excess coverage on claims attributed to 1997 through 2001 must fail. However, this determination, in and of itself, does not establish liability or the amount. At oral argument, Fletcher stated that the occurrence of malpractice, for purposes of MCARE coverage, occurred in 2000. As addressed above, in examining when the occurrence first arose “we must decide at what point in time the injurious effects of the doctor’s negligence first manifested themselves in a way that could be ascertained by reasonable diligence.” D’Auria,
The malpractice complaint stated that Decedent had 98 appointments at Medical Associates between 1991 and 2001. Malpractice Complaint, ¶ 10. It also chronicles abnormal cholesterol test results and abnormal liver function studies beginning in 1991 and abnormal blood sugar results from 1992. Malpractice Complaint, ¶ 11,12. It is then provided that “apprоximately mid-year 2000 [Decedent] started to become severely fatigued and complaining of right shoulder and arm pain.” Malpractice Complaint, ¶ 15 (emphasis added).
These averments support a finding that the “occurrence” of malpractice took place in 2000, when Decedent first manifested symptoms, according to the complaint. MCARE asserts, however, that the trial transcripts, medical records and expert medical reports in the underlying case may show that Decedent actually manifested symptoms much earlier, even before 1997 when PHICO began to cover Dr. Kubacki and Medical Associates. We cannot say that there is no genuine issue as to the date of the occurrence and, thus, we must deny summary judgment as to the date of the occurrence.
ORDER
AND NOW, this 26th day of August, 2011, it is hereby ORDERED that the Commonwealth of Pennsylvania, Medical Care Availability and Reduction of Error Fund’s motion to strike the joint tortfeasor release is hereby DENIED and Johanna Fletcher’s motion for summary judgment is GRANTED in part and DENIED in part in accordance with the attached opinion.
Notes
. The Act of March 20, 2002, P.L. 154, as amended, 40 P.S. §§ 1303.101-1303.910, created the MCARE Fund as a statutory insurer providing medical malpractice coverage in excess of the primary layer of coverage purchased by the health care physician or hospital. The MCARE Fund replaced the Medical Professional Catastrophe Loss Fund (CAT Fund). 40 P.S. § 1303.712(a) and (b).
. The complaint also named William H. Simon, D.O., and Frankford Hospital-Torres-dale as defendants.
. It appears thаt Dr. Kominsky and Dr. Ku-backi each had claims-made coverage from PHICO from 1991 through their respective ending dates. See MCARE Letter to trial court, MCARE Brief, Exhibit A. MCARE had no records of the practice, Medical Associates, reporting coverage from 1991 through 1995. Id. Medical Associates did have PHI-CO claims-made coverage from January 1, 1996, through January 1, 2001. Fletcher's Brief, Exhibit 1.
. The Guaranty Association was created by the Act of December 12, 1994, P.L. 1005, as amended, 40 P.S. §§ 991.1801-991.1802, and steps into the shoes of the insolvent insurer with respect to outstanding claims.
. "A claims made policy provides coverage for claims filed while the doctor holds the policy, in contrast to an occurrence policy, which covers claims relating to any acts that occurred while the doctor held the policy, regardless of when the claims were filed.” Fletcher II,
. See Fletcher II,
. In a response to a motion for summary judgment, "the adverse party may not rest upon the mere allegations or denials of the pleadings.” Pa. R.C.P. No. 1035.3(a). The adverse party must identify a dispute as to the evidence presented in the record, a challenge to the credibility of a witness or "evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.” Pa. R.C.P. No. 1035.3(a)(2). We may grant a motion for summary judgmеnt in whole or in part "whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report_” Pa. R.C.P. No. 1035.2.
.Fletcher’s position with respect to MCARE coverage for Dr. Kominsky’s liability is not clear to the Court. Fletcher's brief focuses her argument on Dr. Kubacki. The brief mentions Dr. Kominsky once, but that reference appears to be а mistake. The brief recites that MCARE was notified of Dr. Komin-sky’s retirement in 2000, an event that would trigger tail coverage. However, Dr. Komin-sky died in 1998. It was Dr. Kubacki that retired in 2000. Thus, the only reference to "Dr. Kominsky” actually appears intended to refer to Dr. Kubacki. Further, at oral argument, counsel for MCARE noted that Fletcher appeared not to be seeking reimbursement from Dr. Kominsky, and Fletcher did not respond.
. In her brief, Fletcher argued that every act of negligence constituted a new occurrence and, as such, MCARE was liable for occurrences over the course of multiple years. At oral argument, Fletcher conceded that the multiple acts of negligence established in this case equaled only one occurrence. She now asserts that 2000 was the year of the occurrence, based on the facts alleged in the medical malpractice complaint.
. Fletcher concedes the verdict sheet has not been made part of the record. All that has been provided is a copy of the trial court docket showing entry of judgment. See Fletcher Brief, Exhibit I.
. When the MCARE fund was established the surcharge paid was based on a percentage of the premium of the primary carrier. See Section 701(d) of Act No. 111 of 1976, Act of October 15, 1975, P.L. 390. However, Section 701 of the act was amended, with an effective date of January 1, 1997. Act of November 16, 1996, P.L. 776, No. 135 § 3. Now Section 702 of the act provides that the basis for the surcharge is the "[prevailing primary premium” which is the "schedule of occurrence rates approved by the Insurance Commissioner for the Joint Underwriting Association.” 40 P.S. § 1303.702. As such, the surcharge is the same regardless of whether a claims-made policy or an occurrence policy is purchased.
. Because Fletcher has not established liability on the part of MCARE, we need not con