Hospital & Healthsystem Ass'n of Pennsylvania v. Insurance Commissioner

74 A.3d 1108, 2013 WL 4033850, 2013 Pa. Commw. LEXIS 321
CourtCommonwealth Court of Pennsylvania
DecidedAugust 9, 2013
StatusPublished
Cited by3 cases

This text of 74 A.3d 1108 (Hospital & Healthsystem Ass'n of Pennsylvania v. Insurance Commissioner) 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
Hospital & Healthsystem Ass'n of Pennsylvania v. Insurance Commissioner, 74 A.3d 1108, 2013 WL 4033850, 2013 Pa. Commw. LEXIS 321 (Pa. Ct. App. 2013).

Opinions

OPINION BY

Judge LEAVITT.1

Petitioners2 are health care providers and trade associations that have petitioned for review of an adjudication of the Insurance Commissioner that denied their challenge to the assessments imposed upon them by the Medical Care Availability and Reduction of Error (MCARE) Fund for the years 2009, 2010 and 2011. These assessments provide the monies used by [1110]*1110the MCARE Fund to pay medical malpractice claims in excess of what the health care provider’s primary insurer pays. Petitioners assert that their assessments were excessive because they resulted in a collection of more monies than were needed by the MCARE Fund to pay claims for one year and provide a 10% reserve. We agree and reverse.

Background

Since 1975, the Commonwealth has been directly involved in providing medical malpractice insurance to health care providers in Pennsylvania. The Health Care Services Malpractice Act, Act of October 15, 1975, P.L. 390, as amended, formerly 40 P.S. §§ 1301.101-1301.1006,3 was enacted to confront the “medical malpractice crisis,” ie., the unavailability and costliness of medical malpractice insurance, that existed here and in many other jurisdictions at the time. See McCoy v. Board of Medical Education and Licensure, 37 Pa.Cmwlth. 530, 391 A.2d 723, 725 (1978). The General Assembly addressed this crisis by establishing a mandatory medical malpractice insurance system and a mandatory arbitration system. Mandatory arbitration was held to be unconstitutional, and that part of the statute was rendered ineffective and unenforceable. Mattos v. Thompson, 491 Pa. 385, 421 A.2d 190 (1980). However, the statutory mandate that health care providers purchase medical malpractice insurance withstood a constitutional challenge. McCoy, 391 A.2d at 727 (holding that a physician, even one who had practiced 40 years without a claim of malpractice, could be forced to make this purchase for the first time in his professional life). A health care provider’s refusal to purchase malpractice insurance coverage in 1975 was, and continues to be, sanctioned by the provider’s loss of his professional license. Id. at 728.4

Under the 1975 insurance system, each health care provider, physician or hospital, was required to purchase an annual policy of medical malpractice insurance that provided coverage in the amount of $100,000 per occurrence and $300,000 in the aggregate. Section 701(a) of the Health Care Services Malpractice Act, formerly 40 P.S. § 1301.701.5 Where a health care provider was unable to purchase this primary policy in the private insurance marketplace, the purchase could be made through the assistance of the Joint Underwriting Association. Section 801(a) of the Health Care Services Malpractice Act, formerly 40 P.S. § 1301.801.6 In addition, each health care provider was required to purchase excess coverage in the amount of $1,000,000 per claim from the “Medical Professional Liability Catastrophe Loss Fund,” a special fund in the Pennsylvania Treasury set up to provide excess coverage above the provider’s primary coverage. This fund became known as the “CAT Fund.” It paid, annually, up to $1,000,000 per occurrence and up to $3,000,000 in the aggregate for each health care provider. Section 701(c) of the Health Care Services Malpractice Act, formerly 40 P.S. § 1301.701(c).7 The [1111]*1111CAT Fund was funded by a surcharge upon the premium the provider paid for the primary coverage; the surcharge was set at 10% of the health care provider’s annual premium for the primary coverage or $100, whichever was greater. Section 701(d) of the Health Care Services Malpractice Act, formerly 40 P.S. § 1301.701(d).8

Over time, the legislature enacted many amendments to the Health Care Services Malpractice Act. Those amendments, inter alia, reduced the level of excess coverage provided by the CAT Fund and increased the level of primary coverage required to be purchased by the health care provider. For example, the 1996 amendments made the individual health care provider responsible for primary coverage in the amount of $800,000 per occurrence and $900,000 in the aggregate; the CAT Fund paid the next $900,000 for each occurrence and $2,700,000 in the aggregate.9 The 1996 amendment also called for continued future increases in the level of primary coverage and decreases in the excess coverage provided by the CAT Fund. See Section 3 of the Act of November 26, 1996, P.L. 776. Changes were also made to the CAT Fund surcharge, its amount and calculation. Id.

In 2002, the General Assembly repealed the Health Care Services Malpractice Act and started over with new legislation: the Medical Care Availability and Reduction of Error (MCARE) Act.10 The MCARE Act addressed a newly perceived crisis, i.e., the cost of medical malpractice insurance. There was concern that the cost of medical malpractice insurance in Pennsylvania had increased to the point that physicians educated and trained in Pennsylvania were leaving to set up practice in other states where the costs of this insurance were lower.

Relevant to this case, the MCARE Act abolished the CAT Fund and replaced it with the MCARE Fund. Monies in the CAT Fund were transferred to the MCARE Fund along with the CAT Fund’s liabilities. Section 712(b) of the MCARE Act, 40 P.S. § 1303.712(b). Like its predecessor, the MCARE Fund was set up to provide insurance coverage in excess of the mandatory levels of primary medical malpractice coverage. See Section 712(a) of the MCARE Act, 40 P.S. § 1303.712(a). For policies issued or renewed in 2002, the first year of the MCARE Act, physicians were required to purchase primary coverage in the amount of $500,000 per occurrence and $1,500,000 in the aggregate; hospitals had to purchase $500,000 per occurrence and $2,500,000 annual aggregate coverage. Section 711(d)(1) of the MCARE Act, 40 P.S. § 1303.711(d)(1). The corresponding coverage from the MCARE Fund for calendar year 2002 for each provider and each hospital was $700,000 per occurrence and $2,100,000 per annual aggregate. Section 712(c)(1) of the MCARE Act, 40 P.S. § 1303.712(c)(1). In 2003, this coverage available from the MCARE Fund dropped to $500,000 per occurrence and $1,500,000 per annual aggregate. Section 712(c)(2)(i) of the MCARE Act, 40 P.S. § 1303.712(c)(2)(i).

[1112]*1112The MCARE Fund is scheduled for termination. To that end, the MCARE Act has established a schedule for continued increases in the amount of primary coverage that must be purchased by health care providers and continued decreases in the amount of excess coverage that will be available from the MCARE Fund. For example, for policies issued in 2006, the mandatory level of primary medical malpractice coverage was scheduled to increase to $750,000/$2,250,000, and the amount of excess coverage provided by the MCARE Fund was scheduled to drop to $250,000 per occurrence and $750,000 in the aggregate. Sections 711(d)(3)(i), 712(c)(2)(ii) of the MCARE Act, 40 P.S. §§ 130S.711(d)(3)(i), 1303.712(c)(2)(h).

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Related

Hospital & Healthsystem Ass'n v. Commonwealth
77 A.3d 587 (Supreme Court of Pennsylvania, 2013)

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Bluebook (online)
74 A.3d 1108, 2013 WL 4033850, 2013 Pa. Commw. LEXIS 321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hospital-healthsystem-assn-of-pennsylvania-v-insurance-commissioner-pacommwct-2013.