Chow, a Minor v. Rosen, M.D., et al. Appeal of: Independence Blue Cross (Dissenting Opinion)

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[J-44-2002] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT KEVIN CHOW, A MINOR, BY AND THROUGH HIS PARENTS AND NATURAL GUARDIANS, CHI CHOW AND JENNY CHOW, AND IN THEIR OWN RIGHT v. BRUCE J. ROSEN, M.D., DEBORAH BIETER SCHULTZ, M.D., JEROME B. GOLDSTEIN, M.D., PENN WOMEN'S HEALTH ASSOCIATES, P.C. AND PENNSYLVANIA PROPERTY AND CASUALTY INSURANCE GUARANTY ASSOCIATION, INTERVENOR APPEAL OF: INDEPENDENCE BLUE CROSS : : : : : : : : : : : : : : : : : : : No. 68 MAP 2001 Appeal from the Order of the Superior Court entered 5/24/00 at 2552 EDA 1999 which affirmed the order of the Delaware County Court of Common Pleas, Civil Division, entered on 7/12/99 at 95-13125 ARGUED: April 8, 2002 DISSENTING OPINION MR. JUSTICE SAYLOR DECIDED: December 19, 2002 In Bell v. Slezak, ___ Pa. ___, ___ A.2d ___ (2002), I have set forth the position that the PPCIGA Act does not bar a medical malpractice plaintiff's claim against a defendant-physician or foreclose liability, and that the non-duplication of recovery provision does not relieve PPCIGA of its payment obligation in relation to the doctor's covered claim. See id. at ___, ___ A.2d at ___, slip op. at 7-9 (Saylor, J., dissenting). The supporting rationale centers upon the nature of the parties' claims under the PPCIGA Act -- PPCIGA possessed a complete defense against direct payment on the plaintiffs' potential third-party claim, see id. (citing 40 P.S. §991.1803(b)(2)); however, it had no such defense against the doctor's first-party claim predicated upon his insurance contract with PIC. See id. Applying this reasoning to the present case, the orders of the Superior Court and the common pleas court should not be sustained. The common pleas court simply should not have denied the subrogee, Independence Blue Cross, leave to intervene or approved a settlement that was designed to extinguish the insurer's rights, particularly where the plaintiffs' cause against Dr. Rosen for the medical expenses attributable to Independence Blue Cross should remain viable. See Bell, ___ Pa. at ___, ___ A.2d at ___, slip op. at 7-9 (Saylor, J., dissenting). While the decision to permit a reduction of settlement proceeds based upon an unsettled legal theory may generally be within the prerogative of the parties to the litigation, Pennsylvania courts frown on attempts to utilize the settlement process as a mechanism to defeat subrogation interests. See, e.g., Thompson v. WCAB, 801 A.2d 635, 639 (Pa. Cmwlth. 2002). Mr. Justice Nigro joins this dissenting opinion. [J-44-2002] - 2

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