Connolly v. Commonwealth, Medical Professional Liability Catastrophe Loss Fund

693 A.2d 1018, 1997 Pa. Commw. LEXIS 203, 1997 WL 219909
CourtCommonwealth Court of Pennsylvania
DecidedMay 5, 1997
DocketNo. 550 M.D. 1993
StatusPublished
Cited by3 cases

This text of 693 A.2d 1018 (Connolly v. Commonwealth, Medical Professional Liability Catastrophe Loss Fund) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Connolly v. Commonwealth, Medical Professional Liability Catastrophe Loss Fund, 693 A.2d 1018, 1997 Pa. Commw. LEXIS 203, 1997 WL 219909 (Pa. Ct. App. 1997).

Opinion

PELLEGRINI, Judge.

Before this court is the Commonwealth of Pennsylvania, Medical Professional Liability Catastrophe Loss Fund’s and Thomas Callahan’s, as Director of the CAT Fund, (collectively, CAT Fund) Motion for Summary Judgment and Margaret Connolly’s (Mrs. Connolly) Cross-Motion for Partial Summary Judgment. For the reasons set forth below, we grant the CAT Fund’s Motion for Summary Judgment and deny Mrs. Connolly’s Cross-Motion for Partial Summary Judgment.

Mrs. Connolly filed a complaint in our original jurisdiction1 against the CAT Fund requesting a declaratory judgment that the CAT Fund was required to defend her in an action previously concluded in the United States District Court for the Eastern District of Pennsylvania (District Court) and, because it did not, requesting an award of damages for the costs and attorney’s fees she incurred in defending herself.

The underlying action for which Mrs. Connolly is alleging a duty to defend by the CAT Fund was filed in the District Court in 1992. Anthony Semeraro, as executor of the estate of his wife, Lilia Semeraro, brought an áetion against the estate of Mrs. Connolly’s husband, John M. Connolly, Jr., M.D. (Dr. Connolly), his medical practice, which was organized as a professional corporation, and Mrs. Connolly. The Semeraro complaint alleged that Dr. Connolly negligently treated Lilia Semeraro in 1984, while she was suffering from mental and physical problems related to Alzheimer’s disease, and that he failed to inform her that she needed follow-up care for cancer, resulting in her death. As to Mrs. Connolly, the Semeraro complaint alleged that she was an employee and corporate officer of the professional corporation. Exhibit A to the Complaint, p. 2, ¶ 5.

Count Six of the Semeraro complaint, the one against Mrs. Connolly, averred as follows:

80. As of July 1987, Defendant [Mrs.] Connolly was aware that her husband, John M. Connolly, Jr., M.D. was suffering from severe mental, physical and visual deficits as a result of what was diagnosed as Alzheimer’s Disease.
82. From June, 1987 through May, 1988, Defendant [Mrs.] Connolly unofficially directed the operation of Dr. Connolly’s professional corporation which was the entity through which Dr. Connolly had provided medical services to Lilla L. Semera-ro.
83. During that time period, Defendant [Mrs.] Connolly failed to notify any of Dr. Connolly’s former patients, including Lilia L. Semeraro, or any physician who had referred patients to Dr. Connolly, of the nature of, severity of and/or duration of Dr. Connolly’s disabilities.
84. At all times subsequent to June, 1987, Defendant [Mrs.] Connolly has known and appreciated the manner and extent to which her husband’s disabilities compromised his abilities to practice medicine and to perform diagnostic procedures such as colonoscopies and to otherwise properly treat and diagnose colorectal cancer.
85. In or about May, 1988, Defendant [Mrs.] Connolly became an officer and employee of Dr. Connolly’ [sic] professional corporation and thereafter officially continued to operate the professional corporation.
87. At all times subsequent to May, 1988, as an officer and employee of the professional corporation, Defendant [Mrs.] Connolly had an independent affirmative duty to notify Dr. Connolly’s former patients, including Plaintiffs Decedent, and their referring physicians of the nature and extent of Dr. Connolly’s disabilities while he was practicing medicine.
88. At no time subsequent to May, 1988 has Defendant [Mrs.] Connolly taken [1020]*1020any action to notify any of Dr. Connolly’s former patients, including Lilla L. Semera-ro, or any physician who had referred patients to Dr. Connolly, of the nature or, severity of and/or duration of Dr. Connolly’s disabilities.
91. Defendant [Mrs.] Connolly’s failure to notify Dr. Connolly’s patients, including Plaintiffs Decedent, and their referring physicians of the nature and extent of Dr. Connolly’s disabilities while he was practicing medicine, constituted an active, intentional and fraudulent concealment of Dr. Connolly’s deficits.

Exhibit A to the Complaint, pp. 17-20.

The CAT Fund defended Dr. Connolly’s estate and the professional corporation against the Semeraro action, but notified Mi’s. Connolly that it would not be responsible for any damages the professional corporation had to pay based on her actions because the claims against her were not for “professional liability” as required by the Health Care Services Malpractice Act (Malpractice Act), Act of October 15, 1975, P.L. 390, as amended, 40 P.S. §§ 1301.101— 1301.1006. Ultimately, the CAT Fund settled the Semeraro action obtaining a release for all defendants, including Mrs. Connolly, and paid the entire settlement from CAT Fund monies.

Mrs. Connolly filed the instant action asserting that the CAT Fund had a duty to' defend her in the Semeraro action. After the completion of discovery, the CAT Fund filed the instant Motion for Summary Judgment and Mrs. Connolly filed a Cross-Motion for Partial Summary Judgment.

Although there is no case law delineating the CAT Fund’s duty to defend, the parties agree that general insurance law is germane. The Supreme Court, in Gene’s Restaurant v. Nationwide Insurance Co., 519 Pa. 306, 548 A.2d 246 (1988), held:

An insurer’s duty to defend an action against the insured is measured, in the first instance, by the allegations in the plaintiffs pleadings ...
[I]n determining the duty to defend, the complaint claiming damages must be compared to the policy and a determination made as to whether, if the allegations are sustained, the insurer would be required to pay resulting judgment ... the language of the policy and the allegations of the complaint must be construed together to determine the insurer’s obligation.

quoting 7C J. Appleman, Insurance Law and Practice § 4683, at 42, 50 (W. Berdel ed. 1979). The duty to defend is broader than an insurer’s duty to provide coverage in that it depends on whether the underlying complaint states a claim that is potentially within the scope of the policy. Lebanon Coach Co. v. Carolina Casualty Insurance Co., 450 Pa. Superior Ct. 1, 675 A.2d 279 (1996).

The CAT Fund contends that the Malpractice Act does not provide coverage unless there is “professional liability”, and that there were no allegations amounting to “professional liability” in the Semeraro complaint, which would invoke its duty to defend. Mrs. Connolly counters that Section 605 of the Malpractice Act, 40 P.S. § 1301.605, does not require there be allegations of professional liability to raise the CAT Fund’s duty to defend.

Section 605 of the Malpractice Act provides in pertinent part:

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Bluebook (online)
693 A.2d 1018, 1997 Pa. Commw. LEXIS 203, 1997 WL 219909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/connolly-v-commonwealth-medical-professional-liability-catastrophe-loss-pacommwct-1997.