# Paternaster v. Lee

> Supreme Court of Pennsylvania · December 22, 2004 · 581 Pa. 28

URL: https://www.frixlaw.com/law-library/cases/9692142

## Case

- **Full name:** Lorraine PATERNASTER, Administratrix of the Estate of Damon Paternaster, Appellant, v. Dong P. LEE, M.D., and the Commonwealth of Pennsylvania Medical Professional Liability Catastrophe Loss Fund, Appellees
- **Court:** Supreme Court of Pennsylvania
- **Decided:** December 22, 2004
- **Citations:** 581 Pa. 28; 863 A.2d 487; 2004 Pa. LEXIS 3285
- **Precedential status:** Published
- **Opinion:** Concurrence by Saylor
- **Judges:** Cappy, Castille, Nigro, Newman, Saylor, Eakin, Baer
- **Cited by:** 7 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/9692142

## How later opinions describe it (automated extraction)

- noting that the CAT Fund pays both basic and excess coverage in an extended claim

## Opinion text

CONCURRING OPINION
Justice SAYLOR.
I 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 Dellenbaugh majority, 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.
. 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 Dellenbaugh as controlling law in such circumstances. See Brief of Appellee at 17-19.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9692142. Public record. Not legal advice.