These days it seems as if there is always something percolating with PIGA in regard to its handling of the PIC/PIE/AHERF claims. Here is a summary of recent activity of interest to medical malpractice practitioners:
they think is particularly strong in situations where they are merely acting as a third-party administrator for a self-funded employer health plan. Even in cases where BC/BS is the actual insurance company, they believe they are entitled to subrogation. There is no appellate case law on this issue as yet. Anyone with knowledge of a Common Pleas decision directly addressing this issue should advise Section members via our e-mail ListServ.
As most of you know, PaTLA leadership (Stewart Eisenberg with assistance from Gerry McHugh, John Gismondi, and Jim McEldrew) reached a written agreement with PIGA concerning some procedural issues relating to the bar date. In particular, it was agreed that plaintiff's counsel do not have the obligation of notifying PIGA of potential medical malpractice cases which they are simply in the process of investigating; rather, the obligation is generally on the treating physicians to notify PIGA once a Complaint is filed or a written notice of representation has been sent to them by plaintiff's counsel.
John P. Gismondi, Malpractice Section Chair, has been in contact with the Ohio Liquidator in charge of the PIE insolvency in an attempt to strike a similar agreement. At a minimum, Gismondi would like to obtain a list of all PIE insureds who practice in Pennsylvania so that plaintiff's counsel can at least know whether a physician whose conduct they are investigating was a PIE insured. No formal response from the Ohio Liquidator has been received as of yet.
Briefs were recently filed in the Superior Court in McCarthy v. Bainbridge (No 3261 Philadelphia 1998), the Chester County case which declared that life insurance proceeds are not a proper set-off under the PIGA statute. The Insurance Commissioner of Pennsylvania filed an amicus brief in support of the plaintiff's position and against PIGA.
Briefs were also recently filed in Bell v. Slezak (No. 2174 Pittsburgh 1998). In this Westmoreland County case, the plaintiff settled her malpractice case for $500,000.00 shortly before PIC became insolvent. When PIGA got involved in the case, it refused to pay the first $200,000.00 of the settlement because plaintiff had in excess of that amount in medical bills which had been paid by Blue Cross/Blue Shield. The plaintiff argued that even though PIGA may be entitled to a set-off, she can still collect the $200,000.00 from the doctor personally. The trial court agreed with the plaintiff. PLEASE NOTE: There are three other Common Pleas cases which take a contrary view and hold that the doctor isnot personally responsible for set-off amounts, those cases being Gallagher v. Wetzel (1996-2143 Cambria County), Panea v. Isdaner (1564, 1995 Philadelphia County), Baker v. Myers (4915-1990 Philadelphia).
- Chairman Gismondi reports that, based on a conversation with counsel for Blue Cross/Blue Shield, he expects BC/BS to continue to argue that, even where the plaintiff suffers a set-off for amounts they paid on medical bills, BC/BS still has a right of subrogation against the doctor and/or PIGA itself. Blue Cross/Blue Shield has intervened in certain cases in order to assert this position, a position