Physician successful in obtaining excess coverage after denial by hearing officer.

The Mcare Fund denied Dr. Wolfson excess coverage because it alleged that he received notice of a claim prior to the Mcare Fund's receipt of his assessment payment for that calendar year. The pivotal issue was what constituted notice of a claim. Did Dr. Wolfson receive notice by receipt of a letter from an attorney asking for records of a former patient without any information as to a possible pending malpractice action? Or, did he first receive notice of a claim twenty-one months later when he received a writ of summons? If notice were first received upon receipt of the writ of the summons, then by that date, the assessment payment for that calendar year had already been received by the Mcare Fund and coverage would be afforded. Alternatively, if notice of a claim was determined when he received the records request, his assessment payment had not yet been paid for that calendar year and no coverage would be afforded. In determining the triggering event, the Mcare Fund looked to the language of the primary policy for when a claim is considered first made. The Commonwealth of Pennsylvania's Department of Insurance's hearing examiner sided with the Mcare Fund and determined that notice of claim was triggered upon Dr. Wolfson's receipt of a records request and his request, in turn, to his primary carrier for assistance in responding to same. Dr. Wolfson filed exceptions to the hearing examiner's recommendations. The Commonwealth Court ruled that Dr. Wolfson's receipt of the writ of summons was the earliest date the claim was made and, therefore, he was entitled to excess coverage. In support, the court found that the written records request, coupled with the physician's request on how to respond to the request, without more, was insufficient to constitute a claim under the physician's claims made policy. The court ordered that the Mcare Fund provide coverage for the claim at issue.

Case Law Alert - 2nd Qtr 2012