January 25th, 2019 by Rieders Travis in Insurance

Montgomery Hosp. & Med. Ctr. vs. Bureau of Med. Care Availability & Reduction of Error Fund (MCARE Fund), 2019 Pa. Cmwlth LEXIS 28 (January 4, 2019) Simpson, J.-Hospital seeks a declaration that it is entitled to §715 status and that the MCARE Fund must be a hospital’s defense cost to the third-party action. Section 715 of the MCARE Act deems a third-party claim to have been brought less than four years after the negligent act where the defendant medical provider rendered “multiple treatments or consultations” to third-party plaintiff-patient within the four year period. Claims falling into this latter category are not covered §715 status. The hospital claimed that the radiologist whose liability was sought by plaintiff were independent contractors and not employees of the hospital. The hospital position as to who is responsible for the radiologist is irrelevant since the plaintiff has pled ostensible agency, which is expressly governed by the MCARE Act. The court could not conclude as a matter of law that the hospital could not be liable for vicarious liability in connection with the radiologist’s allegedly negligent treatment of third-party plaintiff during the four year period preceding commencement of the third-party action. The hospital has requested summary relief based on the purported absence of vicarious liability is denied. 



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