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Washington Casualty Co. v. Doctors' Co.2/19/2002
At issue in this appeal is the adequacy of notice to trigger coverage under a claims-made medical malpractice policy. We hold that notice of a claim alleging negligence in a procedure used to move an unborn baby out of a breech position is not notice of a potential claim against a different doctor in the same clinic arising from his delivery of the baby a week later. Because negligence in the delivery was not claimed until after the policy period of the clinic's coverage with The Doctors' Company, the trial court properly ruled on summary judgment that The Doctors' Company was not liable on the claim.
Karen Migliuri received prenatal care from the North Spokane Women's clinic in 1992. Dr. Nicholas Bachhuber, one of the co-owners of the clinic, was Migliuri's primary physician. Near the end of the pregnancy, Migliuri's baby was in a breech position. Dr. Bachhuber and Dr. Patrick Fruen, an obstetrician and also a co-owner of the clinic, performed an external cephalic version. This procedure is designed to return the baby to the head-down position. Dr. Bachhuber then prescribed the use of an external binder to exert pressure on Migliuri's abdomen to prevent the unborn baby from returning to a breech position.
Seven days later, Migliuri went into induced labor. Dr. John McKenna, an obstetrician and co-owner of the clinic, delivered the baby. In order to aid the delivery, Dr. McKenna performed a mid-vacuum extraction whereby he used a vacuum-like device to bring the baby's head into the birth canal. Migliuri's child was born a quadriplegic on September 15, 1992.
The Doctors' Company insured the clinic under a claims-made liability policy, covering the period from January 1, 1993 to January 1, 1996. On March 15, 1993, the clinic notified The Doctors' Company by telephone of a request for Migliuri's medical records. The Doctors' Company sent an Insured's Report of Claim or Incident form to Dr. Bachhuber. He filled out the form and returned it.
The Migliuris filed a medical malpractice suit in September 1995. The Doctors' Company retained an attorney to defend the action. The attorney filed a notice of appearance on behalf of the clinic and Drs. Bachhuber and Fruen. The Doctors' Company paid three million dollars in settlement of the claim in December 1998.
Starting January 1, 1996, the clinic had claims-made coverage with Washington Casualty instead of The Doctors' Company. In April 1999, after the settlement of the first suit, the Migliuris amended their complaint to assert a claim against Dr. McKenna. The new claim alleged that Dr. McKenna was negligent for not delivering the baby by cesarean section and for performing the mid-vacuum extraction. Washington Casualty Company defended the suit and paid the resulting settlement of $400,000.
Washington Casualty then brought suit for reimbursement against The Doctors' Company. The parties filed cross-motions for summary judgment. The trial court found that the terms of the Doctors' Company policy were clear and unambiguous. The trial court found that the Doctors' Company policy requires 'notice sufficient to disclose that a suit or claim may be made against the insured.' The trial court concluded that notice of a claim against Dr. Bachhuber did not provide The Doctors' Company, during its policy period that ended on January 1, 1996, with 'a reasonable basis to infer the likelihood of a claim against Dr. McKenna.' Accordingly, the trial court granted summary judgment in favor of The Doctors' Company and denied Washington Casualty's motion for partial summary judgment on the issue of liability.
We review an order on a motion for summary judgment de novo and engage in the same in
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