OPINION BY
President Judge COLINS.
Stenton Hall Nursing & Rehabilitation Center (Stenton Hall) and Beverly Enterprises — Pennsylvania, Inc. (Beverly), a California corporation, petition for review of the June 26, 2002 decision of the Medical Professional Liability Catastrophe Loss Fund (Fund) denying Stenton Hall’s request for coverage under the Health Care Services Malpractice Act (Act).1 We affirm.
Stenton Hall is a skilled nursing facility located in the City of Philadelphia. On January 9, 1999, Chappell Brown (Decedent), an eighty-three-year-old resident of Stenton Hall, died from salmonella poisoning that he contracted while a resident at Stenton Hall.
On March 27, 2000, Jeff C. Brown, Administrator of Decedent’s Estate (Plaintiff Brown), filed a civil action in common pleas court against Stenton Hall, its medical and executive directors, and Beverly, Stenton Hall’s operating and managing entity. On April 8, 2002, Stenton Hall filed a claim report with the Fund. On June 24, 2002, two months before trial, Stenton Hall tendered its $300,000.00 in basic coverage to the Fund.
On June 26, 2002, after reviewing the record, the Fund informed Stenton Hall that it was denying coverage on the ground that Decedent’s death did not arise from any tort or breach of contract involving the furnishing of medical services. The Fund further noted that Plaintiff Brown’s action alleged that general unsanitary conditions caused Decedent to contract salmonella poisoning and that, therefore, the action does not involve professional liability as defined by the Act.
Stenton Hall petitions for review of the Fund’s rejection of coverage. Our review is limited to a determination of whether the necessary findings of fact are supported by substantial evidence, whether an error law was committed or whether constitutional rights were violated. Stiffler v. Ins. Comm’r of the Commonwealth of Pennsylvania, 786 A.2d 296 (Pa.Cmwlth.2001).
Stenton Hall contends that the Fund’s denial of coverage is incorrectly based on the erroneous contention that the civil action did not involve the furnishing of medical services as contemplated by the Act. In particular, Stenton Hall contends that the Fund completely ignored the plain language of Plaintiff Brown’s complaint, the factual underpinnings forming the basis for the action, and the statutory and regu[379]*379latory requirements governing the operation of long-term nursing care facilities.
I.
Stenton Hall’s first argument is that the averments set forth in the complaint in the civil action and the evidence of record establishes that Plaintiff Brown’s civil action was based upon inadequate medical and nursing care, which is covered under the Act. In support, Stenton Hall cites paragraphs 31 and 32(a)-(b) of the complaint, which alleged:
31. Defendant Stenton Hall failed properly [sic] to treat, exercise due care, and conform to the standards of reasonable and adequate nursing, convalescent and medical care are treatment of plaintiffs decedent’s condition.
32. The negligence of Defendant Sten-ton Hall consisted of the following:
a. failing to properly care for plaintiffs decedent;
b. failing to prevent Salmonella poisoning of plaintiffs decedent....
Plaintiff Brown’s Complaint at 8; R.R. 8a.
Stenton Hall contends that the dietary services it provided to Decedent formed an integral part of the long-term nursing care Decedent received at its facility. Thus, Stenton Hall contends that its alleged failure to provide this critical aspect of Decedent’s medical care constituted a breach of the applicable standard of nursing care.
Stenton Hall also cites to the evidence developed in the case. This evidence includes an investigatory report by a neutral expert, Dr. Caroline C. Johnson, a physician and expert in the field of infectious disease for the City of Philadelphia’s Division of Disease Control (DDC). In her report, Dr. Johnson stated, inter alia, that “acquisition of infection is thought to have occurred on the clinical care unit.” DDC Report at 3; R.R. 28a. Specifically, Dr. Johnson also noted that reusable electronic rectal thermometers were used although no cleaning procedure was followed for these devices. Id.
In addition, Stenton Hall, the defendant in the civil action, cites the reports of Plaintiff Brown’s two experts, Byron S. Arbeit, an administrative expert in the field of long-term nursing care facilities, and Dr. Michael M. Bergman, an infectious disease specialist. In his report, Mr. Ar-beit referred to a number of deficiencies at Stenton Hall, including a mouse infestation, warm refrigerators, raw meat stored with prepared foods, and inadequate sanitizing operations. Mr. Arbeit concluded that Decedent “received substandard and/or inadequate care while a resident of Stenton Hall with respect to: freedom from abuse and neglect; dignity; care-planning; documentation; infection control; nursing services; the right to reside in a safe and sanitary environment, free of pests; the right to receive food which has been prepared and stored in a reasonably clean and safe environment; and, administrative oversight.” Arbeit Report at 8; R.R. 45a.
In his report, Dr. Bergman also stated, within a reasonable degree of medical certainty, that Decedent contracted salmonella from the nursing home as a result of its substandard care. Although Dr. Bergman admitted that the exact method by which Decedent contracted salmonella may never be known and that Decedent may have contracted the disease from an outside source of food, the doctor opined that Stenton Hall was still at fault because it was obligated as part of its nursing care duties to protect patients with chronic conditions such as end-stage renal failure from exposure to salmonella infection.
In view of the foregoing, Stenton Hall asserts that the civil action was based on the negligent furnishing of medical ser[380]*380vices, ie., the substandard dietary and sanitary services provided to Decedent, including negligent dietary supervision, which must be considered to be an integral part of the total nursing care provided by Stenton Hall.
Stenton Hall also cites two common pleas court decisions for the proposition that the Act is intended to cover professional negligence, whether falling within advanced medical treatment or common day-to-day operations of a health care facility. In Rothman v. Sacred Heart Hosp., 13 Pa. D. & C.3d 496 (1979), a patient was injured when she slipped and fell on water that leaked from an ice bag used to treat another patient in her room. In finding coverage under the Act, the court determined that furnishing a hospital room comprised part of the health care furnished by a hospital to a patient.
In Herr v. St. Francis Hosp., 9 Pa. D. & C.3d 610 (1978), the court determined that the term “medical services” as used in the Act pertained to the overall care and supervision of a patient. In Herr, a psychiatric patient sustained injuries after he pried open a window in an attempt to escape.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION BY
President Judge COLINS.
Stenton Hall Nursing & Rehabilitation Center (Stenton Hall) and Beverly Enterprises — Pennsylvania, Inc. (Beverly), a California corporation, petition for review of the June 26, 2002 decision of the Medical Professional Liability Catastrophe Loss Fund (Fund) denying Stenton Hall’s request for coverage under the Health Care Services Malpractice Act (Act).1 We affirm.
Stenton Hall is a skilled nursing facility located in the City of Philadelphia. On January 9, 1999, Chappell Brown (Decedent), an eighty-three-year-old resident of Stenton Hall, died from salmonella poisoning that he contracted while a resident at Stenton Hall.
On March 27, 2000, Jeff C. Brown, Administrator of Decedent’s Estate (Plaintiff Brown), filed a civil action in common pleas court against Stenton Hall, its medical and executive directors, and Beverly, Stenton Hall’s operating and managing entity. On April 8, 2002, Stenton Hall filed a claim report with the Fund. On June 24, 2002, two months before trial, Stenton Hall tendered its $300,000.00 in basic coverage to the Fund.
On June 26, 2002, after reviewing the record, the Fund informed Stenton Hall that it was denying coverage on the ground that Decedent’s death did not arise from any tort or breach of contract involving the furnishing of medical services. The Fund further noted that Plaintiff Brown’s action alleged that general unsanitary conditions caused Decedent to contract salmonella poisoning and that, therefore, the action does not involve professional liability as defined by the Act.
Stenton Hall petitions for review of the Fund’s rejection of coverage. Our review is limited to a determination of whether the necessary findings of fact are supported by substantial evidence, whether an error law was committed or whether constitutional rights were violated. Stiffler v. Ins. Comm’r of the Commonwealth of Pennsylvania, 786 A.2d 296 (Pa.Cmwlth.2001).
Stenton Hall contends that the Fund’s denial of coverage is incorrectly based on the erroneous contention that the civil action did not involve the furnishing of medical services as contemplated by the Act. In particular, Stenton Hall contends that the Fund completely ignored the plain language of Plaintiff Brown’s complaint, the factual underpinnings forming the basis for the action, and the statutory and regu[379]*379latory requirements governing the operation of long-term nursing care facilities.
I.
Stenton Hall’s first argument is that the averments set forth in the complaint in the civil action and the evidence of record establishes that Plaintiff Brown’s civil action was based upon inadequate medical and nursing care, which is covered under the Act. In support, Stenton Hall cites paragraphs 31 and 32(a)-(b) of the complaint, which alleged:
31. Defendant Stenton Hall failed properly [sic] to treat, exercise due care, and conform to the standards of reasonable and adequate nursing, convalescent and medical care are treatment of plaintiffs decedent’s condition.
32. The negligence of Defendant Sten-ton Hall consisted of the following:
a. failing to properly care for plaintiffs decedent;
b. failing to prevent Salmonella poisoning of plaintiffs decedent....
Plaintiff Brown’s Complaint at 8; R.R. 8a.
Stenton Hall contends that the dietary services it provided to Decedent formed an integral part of the long-term nursing care Decedent received at its facility. Thus, Stenton Hall contends that its alleged failure to provide this critical aspect of Decedent’s medical care constituted a breach of the applicable standard of nursing care.
Stenton Hall also cites to the evidence developed in the case. This evidence includes an investigatory report by a neutral expert, Dr. Caroline C. Johnson, a physician and expert in the field of infectious disease for the City of Philadelphia’s Division of Disease Control (DDC). In her report, Dr. Johnson stated, inter alia, that “acquisition of infection is thought to have occurred on the clinical care unit.” DDC Report at 3; R.R. 28a. Specifically, Dr. Johnson also noted that reusable electronic rectal thermometers were used although no cleaning procedure was followed for these devices. Id.
In addition, Stenton Hall, the defendant in the civil action, cites the reports of Plaintiff Brown’s two experts, Byron S. Arbeit, an administrative expert in the field of long-term nursing care facilities, and Dr. Michael M. Bergman, an infectious disease specialist. In his report, Mr. Ar-beit referred to a number of deficiencies at Stenton Hall, including a mouse infestation, warm refrigerators, raw meat stored with prepared foods, and inadequate sanitizing operations. Mr. Arbeit concluded that Decedent “received substandard and/or inadequate care while a resident of Stenton Hall with respect to: freedom from abuse and neglect; dignity; care-planning; documentation; infection control; nursing services; the right to reside in a safe and sanitary environment, free of pests; the right to receive food which has been prepared and stored in a reasonably clean and safe environment; and, administrative oversight.” Arbeit Report at 8; R.R. 45a.
In his report, Dr. Bergman also stated, within a reasonable degree of medical certainty, that Decedent contracted salmonella from the nursing home as a result of its substandard care. Although Dr. Bergman admitted that the exact method by which Decedent contracted salmonella may never be known and that Decedent may have contracted the disease from an outside source of food, the doctor opined that Stenton Hall was still at fault because it was obligated as part of its nursing care duties to protect patients with chronic conditions such as end-stage renal failure from exposure to salmonella infection.
In view of the foregoing, Stenton Hall asserts that the civil action was based on the negligent furnishing of medical ser[380]*380vices, ie., the substandard dietary and sanitary services provided to Decedent, including negligent dietary supervision, which must be considered to be an integral part of the total nursing care provided by Stenton Hall.
Stenton Hall also cites two common pleas court decisions for the proposition that the Act is intended to cover professional negligence, whether falling within advanced medical treatment or common day-to-day operations of a health care facility. In Rothman v. Sacred Heart Hosp., 13 Pa. D. & C.3d 496 (1979), a patient was injured when she slipped and fell on water that leaked from an ice bag used to treat another patient in her room. In finding coverage under the Act, the court determined that furnishing a hospital room comprised part of the health care furnished by a hospital to a patient.
In Herr v. St. Francis Hosp., 9 Pa. D. & C.3d 610 (1978), the court determined that the term “medical services” as used in the Act pertained to the overall care and supervision of a patient. In Herr, a psychiatric patient sustained injuries after he pried open a window in an attempt to escape. The court found that where the purpose of the treatment was to address the patient’s self-destructive tendencies, the type of confinement prescribed for him, i.e., a room with easily removable windows, was properly considered part of the furnished medical services.
In response to Stenton Hall’s arguments, Appellee Insurance Department, Medical Care Availability and Reduction of Error Fund (Department), the successor in interest to the Fund, contends that Plaintiff Brown’s allegations do not establish a claim involving professional liability, which is required by the Act for coverage. In its decision denying Stenton Hall’s claim for coverage, the Fund stated in relevant part that “[rjeview of the information submitted demonstrates the allegations in the above-referenced claim do not involve the furnishing of medical services.” Fund’s Rejection of Coverage; R.R. 34a.
Initially, we note that the Act’s purpose is to “make available professional liability insurance at a reasonable cost, and to establish a system through which a person has sustained injury or death as a result of tort or breach of contract by a health care provider can obtain a prompt determination and adjudication of his claim and the determination of fair and reasonable compensation.” Section 102 of the Act, 40 P.S. § 1301.102 (emphasis added). Section 701(d) of the Act provides in pertinent part:
There is hereby created a contingency fund for the purpose of paying all awards, judgments and settlements for loss or damages against a health care provider entitled to participate in the fund as a consequence of any claim for professional liability brought against such health care provider as a defendant or an additional defendant....
40 P.S. § 1301.701(d) (emphasis added).
“Section 701 clearly limits the CAT Fund’s liability to losses as a consequence of any claim for professional liability.” Connolly v. Med. Prof'l Liab. Catastrophe Loss Fund, 559 Pa. 1, 5, 739 A.2d 104, 106 (1999). Although professional liability is not defined in the Act, professional liability insurance is defined by Section 103 of the Act as “insurance against liability on the part of a health care provider arising out of any tort or breach of contract causing injury or death resulting from the furnishing of medical services which were or should have been provided.” 40 P.S. § 1301.103 (emphasis added).
Based upon the above definition, “we can reasonably infer that professional liability therefore arises from the provision [381]*381of medical services or failure to provide appropriate medical services.” Connolly, 559 Pa. at 5, 739 A.2d at 106. Although the Connolly Court recognized that the Fund is statutorily mandated to pay all awards, judgments, and settlements against a health care provider as a consequence of a claim for professional liability, the Court nevertheless noted that the Act’s scope of coverage is limited:
Section 701(d), however, should not be read so broadly as urged by appellant to include every injury or claim arising as a consequence of the provision of services by a medical provider. The CAT Fund’s liability, due to its stated purpose of providing to health care providers coverage in excess of their primary professional liability insurance, must be limited to injuries and damages arising directly from the provision or failure to provide medical services. To extend the CAT Fund’s potential liability beyond claims directly arising from professional liability would unfairly burden the fund’s resources and the health care providers who pay significant surcharges into the fund.
Id. (footnote omitted).
In the present case, the Fund applied the standard enunciated in Physicians Ins. Co. v. Pistone, 555 Pa. 616, 726 A.2d 339 (1999), for determining whether the acts alleged in Plaintiff Brown’s civil action constituted 'professional health care services. “This standard2 looks to whether the act that caused the alleged harm is a medical skill associated with specialized training.” Id. at 626, 726 A.2d at 344 (footnote added).
Stenton Hall, however, asserted at oral argument that Pistone is inapplicable to case sub judice because it does not interpret the term furnishing of medical services contained in the Act but rather interprets the term professional health care services contained in an insurance policy issued by the insurance company in Pis-tone. We disagree.
Although the Pistone Court did not interpret the term furnishing of medical services contained in the Act, we find the Supreme Court’s definition of the term professional health care services to be an equally correct interpretation of the term furnishing of medical services as contemplated by Section 103 of the Act’s definition of professional liability insurance.
As discussed above, in order to meet the definition of a professional act or service under the Pistone test, the act that caused the alleged harm must be attributable to a medical skill associated with specialized [382]*382training. Here, the evidence does not cite with any reasonable degree of medical or scientific certainty to any specific act as a cause of Decedent’s salmonella.
In fact, Plaintiff Brown alleged in his complaint that Decedent’s death may have been caused by unsanitary conditions related to the food services at Stenton Hall. In paragraph 32, Plaintiff Brown alleged that Stenton Hall’s negligence included: “failing to utilize and/or to ensure the utilization of proper sanitary methods of food preparation” (¶ 32c); “failing to maintain and/or ensure the maintenance of a sanitary, clean and healthy facility” (¶ 32d); “failing to utilize and/or ensure the proper utilization of rodent and vermin control techniques” (¶ 32e); “failing to utilize and/or ensure the utilization of sanitary, clean and proper dishwashing techniques” (¶ 32f); and “failing to properly maintain, clean and sanitize cooking and food preparation equipment” (¶ 32g). Plaintiff Brown’s Complaint at 8-9; R.R. 8a-9a.
Furthermore, there is no evidence that the furnishing of medical services as contemplated by the Act caused Decedent’s salmonella.3 Although Dr. Johnson noted in her report that proper cleaning procedures were not followed for reusable rectal thermometers, she stated only that transmission of salmonella “may have been related to environmental contamination, use of shared patient items (e.g. thermometers),4 and poor cleaning practices.” DDC Report at 3; R.R. 28a (footnote added, emphasis added). “Statements that an assigned cause ‘could have’ been the cause of the condition have repeatedly been held to be legally insufficient.” Lewis v. Commonwealth, 508 Pa. 360, 367, 498 A.2d 800, 803 (1985).5
Moreover, Dr. Johnson stated in her report that Decedent was the first of four persons to contract salmonella at Stenton Hall. DDC Report at 2; R.R. 27a. Decedent first developed symptoms on January 5, 1999 and died four days later on January 9, 1999. The onset dates for the other three cases were January 23, January 25, and January 31, 1999. Id. As such, it appears unlikely that Decedent contracted salmonella from a rectal thermometer contaminated with salmonella bacteria from another patient.
In addition, Plaintiff Brown’s own expert, Dr. Bergman, stated in his report that “the exact method by which [Decedent] contracted his salmonella food poisoning may never be known with certainty-” Bergman Report at 1; R.R. 47a. Although Dr. Bergman did opine that De[383]*383cedent contracted salmonella from Stenton Hall as a result of its “substandard facilities,” he did not specify as to whether the disease was contracted by means of food prepared at Stenton Hall, food brought in from outside sources or cross-contamination from one patient to another via caretaker hands or instruments.
In view of the foregoing, we believe that the Fund did not err in determining that under the Pistone standard, the record does not indicate that Decedent’s salmonella resulted from the furnishing of medical services within the meaning of the Act. As a result, the Fund did not err in concluding that Stenton Hall’s claim does not fall within the Act’s definition of professional liability insurance.
II.
Stenton Hall’s second argument is that state and federal regulations governing the operation of long-term care nursing facilities establish that the nursing care and treatment provided to Decedent constituted the furnishing of medical services under the Act. Stenton Hall cites state regulations promulgated by the Department of Health under the Pennsylvania Health Care Facilities Act,6 as well as similar federal regulations governing long-term care nursing facilities. In particular, Stenton Hall cites to regulations governing the duties and responsibilities of long-term care nursing facilities in the areas of dietary services (28 Pa.Code § 211.6; 42 C.F.R. § 488.35(h)) and nursing services, including supervision of the patients’ treatment, medications, diet, and other health services (28 Pa.Code § 211.12(d)(5)). Stenton Hall also cites to regulations governing infection control (28 Pa.Code § 211.1(a); 42 C.F.R. § 483.65) and pest control (42 C.F.R. § 483.70(h)(4)).
In response, the Department initially contends that Stenton Hall’s federal and state regulatory arguments are waived because they are being raised for the first time on appeal and were not raised in Stenton Hall’s petition for review to this Court. Stenton Hall did state in paragraph 5 of its petition for review that Plaintiff Brown’s complaint alleged that Decedent’s death resulted from Stenton Hall’s failure to “conform to the standards of reasonable and adequate nursing, convalescent and medical care and treatment of [Decedent].... ” Stenton Hall’s Petition for Review at 2. Nowhere in its petition did Stenton Hall state that it violated any state or federal regulations or that the Fund was obligated to provide coverage under the Act because Stenton Hall violated state or federal regulations regarding nursing care. Nevertheless, this Court will review Stenton Hall’s regulatory argument on the basis that it might be considered to be “fairly comprised” within its statement regarding the nature of Plaintiff Brown’s civil action and the Fund’s obligation to defend against such a claim. See Pa. R.A.P. 1513(a) (petition’s “statement of objections will be deemed to include every subsidiary question fairly comprised therein.”)
The Department next contends in the event this Court decides that Stenton Hall did not waive its argument regarding the state and federal regulations, those regulations are nonetheless irrelevant to this matter. We agree.
As the Department points out, the Fund is an entity created and governed by the Act, not by the Health Care Facilities Act, which is administered by the Pennsylvania Department of Health. Further, the Fund does not promulgate, operate under, enforce or participate in any manner with the [384]*384Department of Health’s administration of the state and federal regulations cited by Stenton Hall.
Moreover, in accord with Pistone, the state and federal regulations cited by Stenton Hall do not govern acts constituting the famishing of medical services under the Act. Although hygienic food handling, pest control programs, and general dietary supervision are required by these regulations, this does not establish that those duties and responsibilities constitute the furnishing of medical services within the meaning of the Act’s definition of professional liability insurance.
Rather, these regulations govern the basic day-to-day operations of long-term care nursing facilities and do not require the type of medical skills associated with specialized training as contemplated by the Act’s definition of professional liability insurance. To reiterate, the “CAT Fund’s statutory mandate requires it to pay all awards, judgments and settlements for loss or damages against a health care provider as a consequence of any claim for professional liability.” Connolly, 559 Pa. at 5, 739 A.2d at 106 (emphasis added). “Section 701(d), however, should not be read so broadly as urged by appellant to include every injury or claim arising as a consequence of the provision of services by a medical provider.” Id.
In view of the foregoing, we conclude that the Fund did not err in denying Sten-ton Hall’s request for coverage under the Act on the ground that the alleged wrongdoing in Plaintiff Brown’s civil action did not involve the furnishing of medical services as contemplated by the Act’s definition of professional liability insurance. Pistone; Connolly.7 Accordingly, we affirm.
Judge SMITH-RIBNER dissents and joins in the dissenting opinion of Judge FRIEDMAN.
Judge LEADBETTER dissents and joins in the dissenting opinion of Judge LEAVITT.
ORDER
AND NOW, this 27th day of June 2003, Respondent Medical Professional Liability Catastrophe Loss Fund’s June 26, 2002 Rejection of Coverage in the above-captioned matter is hereby AFFIRMED.