581 Pa. 28 - Paternaster v. Lee

¶1CONCURRING OPINION

Justice SAYLOR.

¶2I concur in the majority disposition, because I believe that it comports with the Court’s decision in Dellenbaugh v. CAT Fund, 562 Pa. 558, 756 A.2d 1172 (2000), which relieved the CAT Fund of its obligation in the nature of excess coverage in circumstances in which the health care provider had not paid the required surcharges.1 I joined the dissent in Dellenbaugh, however, which emphasized that the pertinent provisions of the Health Care Services Malpractice Act did not require the result that was directed by the Dellenbaughmajority, and that the majority’s approach was in substantial tension with one prominent purpose of the enactment, namely, to protect the interests of those injured by tortious conduct of (or breach of contract by) their health care providers. See Dellenbaugh, 562 Pa. at 565-69, 756 A.2d at 1176-78 (Nigro, J., dissenting). I believe that those considerations apply similarly in the present situation and, in the absence of Dellenbaugh’s effect (which I regard as controlling), I would also assume a dissenting posture here.

¶3. As the CAT Fund notes, it is undisputed that, since Dr. Lee did not maintain the basic liability portion of the statutorily prescribed coverage by purchasing the necessary tail coverage, he also paid no corresponding surcharge to the Fund relative to Appellant’s claim against it. See 40 P.S. § 1301.701(e)(1) (superseded) (prescribing for the surcharge in terms of payment by health care providers of a percentage of the cost " for maintenance of professional liability insurance” (emphasis added)). The CAT Fund expressly relies on Dellenbaughas controlling law in such circumstances. See Brief of Appellee at 17-19.