Stenton Hall Nursing & Rehabilitation Center v. Medical Professional Liability Catastrophe Loss Fund

DISSENTING OPINION BY

Judge FRIEDMAN.

The majority concludes that the Medical Professional Liability Catastrophe Loss Fund (Fund) properly denied Stenton Hall Nursing & Rehabilitation Center’s (Sten-ton Hall) request for coverage under the Health Care Services Malpractice Act (Act)1 on the ground that the “alleged wrongdoing in [Jeff C. Brown] Plaintiff Brown’s civil action did not involve the furnishing of medical services as contemplated by the Act’s definition of professional liability insurance.” (Majority op. at 12-13, emphasis in original.) Further, the majority approved the Fund’s application of the standard set forth in Physicians Ins. Co. v. Pistone, 555 Pa. 616, 726 A.2d 339 (1999), to make that determination. Because I believe that Plaintiff Brown’s . civil action was based on the negligent furnishing of medical services and, thus, *385within the professional liability coverage provided by the Fund, and because I do not believe that Pistone dictates otherwise, I respectfully dissent.

Professional liability insurance is intended to insure against “liability on the part of a health care provider arising out of any tort or breach of contract causing injury or death resulting from the furnishing of medical services which were or should have been provided.” 40 P.S. § 1301.108. I would consider it beyond dispute that, because there must be professional standards and practices by which health care facilities render care, damages flowing from a facility’s negligent omission or commission in furnishing such care must be covered under the Act. In the civil action against Stenton Hall, Plaintiff Brown alleges, inter alia, that Chappell Brown’s (Decedent) death from salmonella poisoning may have been caused by unsanitary conditions related to the food services at Stenton Hall; yet the Fund, supported by the majority, concludes that Plaintiff Brown’s claim does not involve the furnishing of medical services as contemplated by the Act.2 I find this incomprehensible because it ignores the fact that proper sanitation and diet are critical to health and, thus, essential parts of the medical services furnished by health care facilities to those too infirm to attend to those needs themselves. Indeed, the provision of proper sanitation and adequate diet can, in some cases, be a life-sustaining medical treatment.3

Clearly, not all common day-to-day operations of health care facilities are covered by the Act. Because the Act provides recourse against health care providers only in instances of medical malpractice, the Act does not cover a claim merely because it arises out of events occurring in a health care facility. See e.g., Gonzalez v. The Williamsport Hospital, M79-0652, 14 Pa. D. & C.3d 577 (Opinion of the Administrator, dated March 25, 1980) (holding that a non-patient’s slip and fall injury allegedly due to a hospital’s negligence in failing to properly maintain a lavatory in a public area of the hospital was not covered under the Act). However, courts have had occasion to examine the scope of the Act’s coverage as it relates to loss or damage resulting from the furnishing of medical services by health care facilities such as Stenton Hall. Where they found that the underlying events were integrally related to the medical care that a patient was in the facility to receive, the courts have held that a claim for injuries sustained as a result of a failure to provide such care lies within the Act’s coverage as a matter relating to the furnishing of medical services by a health care provider.4 I believe that *386this is the standard that should have been applied here, and, under this standard, Plaintiff Brown’s action against Stenton Hall would be covered by the Act.5

Instead, the Fund applied the test set forth in Pistone. In that case, a professional liability insurer sought declaratory judgment that its policy provided no coverage for a physician’s acts of exposing himself to a patient, fondling her breasts and masturbating during a medical examination of the patient for gallstones. In holding that the physician’s acts were not “professional health care services” and, therefore, were outside the policy’s coverage, our supreme court focused on whether the alleged harm was attributable to a medical skill associated with specialized training. In doing so, the court recognized that the action was, in reality, a tort for sexual molestation; there simply was no connection between the doctor’s sexual improprieties and his examination of the patient for gallstones. I certainly would agree that when a patient is receiving legitimate medical treatment, during which her physician sexually assaults her, the doctor’s improper acts are not part of his medical treatment. Consequently, an action for damages relating only to those improper acts6 cannot be considered as arising from the rendering of professional health care services. However, that is not this case.

The Act defines a health care provider as “a primary health center or a person, corporation, university or other educational institution, facility, institution or other entity licensed or approved by the Commonwealth to provide health care or professional medical services as a physician, a certified nurse midwife, a podiatrist, hospital, nursing home, birth center, and ... an officer, employee or agent of any of them acting in the course and scope of employment.” 40 P.S. § 1801.103 (emphases added). Thus, the Act encompasses both general health care, which pertains to the overall care and supervision that should be furnished to patients as part of their medical treatment, and professional medical services, which pertains to treatment calling upon specialized medical skill “acquired through considerable rigorous intellectual training.”7 In Pistone, our supreme court applied a standard ■ that recognized the distinction; thus, in determining whether the doctor’s actions during medical treatment were under the Act’s coverage, the court properly considered those actions in the context of furnishing professional medical services. *387Stenton Hall, however, is a health care facility responsible for furnishing its residents with needed, appropriate health care, of which proper sanitation and nutrition are crucial components. Because Plaintiff Brown’s claims against Stenton Hall allege its negligent failure to furnish such health care, I believe the action falls within the Act’s coverage.8

. Act of October 15, 1975, P.L. 390, as amended, 40 P.S. §§ 1301.101-1301.1006.

.In addition to holding that Plaintiff Brown’s allegation, i.e., that Decedent contracted salmonella due to unsanitary conditions at Sten-ton Hall, did not involve professional liability as defined by the Act, the majority also concludes that coverage under the Act is improper because the record lacks evidence to establish definitively that the unsanitary conditions and contaminated food at Stenton Hall actually were the cause of Decedent’s salmonella poisoning. However, on July 25, 2002, Sten-ton Hall settled the civil action. Thus, the only question before us is whether the facts giving rise to this payment of damages constitute the furnishing of medical services under the Act.

. Because a wholesome, appropriate dietary plan is such an important part of an individual’s medical care, health care facilities such as Stenton Hall have a duty, not only to provide food, but also to ensure that the resident derives the proper nourishment from it by monitoring intake and taking care that the diet be appropriate to meet that person’s medical needs.

. For example, In Herr v. St. Francis Hosp., 9 Pa. D. & C.3d 610 (1978), a patient injured himself when he attempted to climb out a window on the hospital’s psychiatric ward. The common pleas court concluded that the type of confinement prescribed for a psychiat*386ric patient is part of the furnished medical services so that the hospital’s failure to confine him in a secure area was a claim covered by the Act. The court determined that questions were raised concerning the hospital's supervision of a patient, which was a subject intimately related to the medical or psychiatric treatment being received.

In Geisinger Medical Center v. Fisher, 50 Pa.Cmwlth. 578, 413 A.2d 462 (1980), a patient died when he plunged through one of the center’s windows. Relying on Herr, this court recognized that that alleged negligence of the medical center in failing to properly supervise and restrain a patient with suicidal tendencies is related intimately to the furnishing of medical services and, thus, a proper matter for coverage under the Act.

. In short, a health care facility’s obligation to furnish its residents with a sanitary environment and adequate and proper nutrition is an integral part of the medical care it renders, and unsanitary conditions and substandard or unwholesome food constitute a failure to furnish the medical services that the resident is at the facility to receive. Therefore, where it is alleged that Decedent died as a result of just such conditions at Stenton Hall, the claim is covered under the Act.

. That is, where there is no allegation that the patient was harmed during the examination by the physician’s negligent performance of, or failure to perform, medical services.

. See Pistone, quoting Roe v. Federal Ins. Co., 412 Mass. 43, 48, 587 N.E.2d 214, 217 (1992).

. Nor does Connolly v. Med. Prof'l Liab. Catastrophe Loss Fund, 559 Pa. 1, 739 A.2d 104 (1999), compel a different result. In that case, the appellant did not provide or fail to provide medical services herself; instead, the claim made against her arose from an alleged duty on her part, as officer of her physician husband’s professional corporation, to inform patients of her spouse’s inability to provide medical care due to his deteriorating mental condition and to advise patients to seek medical attention from a different physician. Because such damages did not rise directly from the appellant’s provision or failure to provide medical services, the court determined that the Fund was not obligated to defend appellant in the action against her. Clearly, the rationale in Connolly is completely inapplicable here.