# Kinney-Lindstrom v. Medical Care Availability & Reduction of Error Fund

> Supreme Court of Pennsylvania · August 19, 2013 · 621 Pa. 52

URL: https://www.frixlaw.com/law-library/cases/4967652

## Case

- **Full name:** Lisa KINNEY-LINDSTROM as Parent and Natural Guardian of Samantha Lindstrom, a Minor, and Alec Lindstrom, a Minor, and as the Assignee of Dr. S., Appellant/Cross-Appellee v. MEDICAL CARE AVAILABILITY AND REDUCTION OF ERROR FUND, Successor in Interest to the Medical Professional Liability Catastrophe Loss Fund, Appellee/Cross-Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** August 19, 2013
- **Citations:** 621 Pa. 52; 73 A.3d 543; 2013 Pa. LEXIS 1786; 2013 WL 4410996
- **Precedential status:** Published
- **Opinion:** Concurrence by Saylor
- **Judges:** Baer, Castille, Consideration, Eakin, Files, Former, McCaffery, Melvin, Saylor, Todd
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4967652

## How later opinions describe it (automated extraction)

- recognizing that the MCARE Act was enacted to ensure “fair compensation to the injured victim of malpractice” and to enable health care providers to obtain affordable professional liability insurance

## Opinion text

Justice SAYLOR,
concurring.
I join the majority opinion with only the following comments and reservations.
In terms of the cross-appeal issue, see Majority Opinion, at 557-58 & n.12, although I support the majority’s approach, I have set down my own tentative thoughts concerning protective cross-appeals in Basile v. H & R Block, Inc., 601 Pa. 392 , 973 A.2d 417 (2009). See id. at 402-04 , 973 A.2d at 423-25 (Saylor, J., concurring). Certainly, the practice remains in need of clarification, whether via rule or decision.
Respecting Part 111(A) of the majority opinion, see Majority Opinion, at 558-61— pertainingto the availability of delay damages based on common-law indemnity theory — there would seem to me to be some potential ambiguities, which I would address as follows.
First, the majority indicates that Section 714(h) “allocates the payment of delay damages and postjudgment interest on a plaintiff’s medical professional liability claim between the health care provider’s basic coverage carrier and the MCARE Fund[.]” Majority Opinion, at 560. I do not believe, however, that this language should be read as signifying that all delay damages and postjudgment interest are allocated between primary insurers and the MCARE Fund. In this regard, Section 714(h) addresses only such delay-damages/interest assessments as are allocable to primary insurers’ and the Fund’s respective liabilities. See 40 P.S. § 1303.714(h).
Second, I believe that it would be useful, conceptually, to respond further to the MCARE Fund’s argument that the Walsh Court’s footnoted allusion to the alteration worked by Section 714(h)’s predecessor signified that the availability of common-law indemnification against the CAT Fund (and, by extension of the reasoning, the MCARE Fund) was superseded. See Brief for Appellee/Cross-Appellant at 40 (citing Walsh v. Medical Professional Liability Catastrophe Loss Fund, 576 Pa. 72 , 77 n. 8, 838 A.2d 692 , 695 n. 8 (2003)). Contrary to the Fund’s position, it seems reasonably clear to me that the Walsh footnote concerned the same subject as the text to which it was appended, i.e., the general rule which had limited total payment by the Fund (including any delay-damages component) according to the statutory cap. See Walsh, 576 Pa. at 77 , 838 A.2d at 695 . 1 I believe that the Court was observing (albeit somewhat obliquely) that the Legislature, via Section 714(h)’s materially-identical predecessor, had altered this rule to require payment of delay damages allocable to the Fund’s statutory liability above and beyond such cap. See id. at 77 n. 8, 838 A.2d at 695 n. 8. Indeed, the subject of claims against the Fund grounded upon common-law indemnity does not surface in the Walsh Court’s discussion until after the salient footnote and the text to which it bears relevance.
Finally, with regard to the majority’s comments that Section 714(h) does not supersede the holdings of Walsh, see Majority Opinion, at 560-61, 563, I would merely clarify that the statute does supplant Walsh’s recognition, derived from Lahav, *565 that delay damages were subject to the statutory cap on the Fund’s liability, under a predecessor scheme.
. In this regard, the decision in Lahav v. Main Line Ob/Gyn Associates, P.C., 556 Pa. 245 , 727 A.2d 1104 (1999), applying an early version of the CAT Fund's enabling legislation, was to the effect that the statutory cap on the Fund’s liability extends to delay damages. See id. at 252 , 727 A.2d at 1107 ; see also Walsh v. Medical Professional Liability Catastrophe Loss Fund., 576 Pa. 72, 77 , 838 A.2d 692, 695 (2003) (citing Lahav for the proposition that the MCARE Fund's predecessor "will not be liable to the extent that [delay damages] exceed the $1,000,000 statutory cap.”).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4967652. Public record. Not legal advice.