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Washington Casualty Co. v. Doctors' Co.2/19/2002
technically cannot constitute notice because it was not in writing as required by the policy. However, a claim reporter for The Doctor's Company produced a written document reflecting that the call was made. That document identifies Dr. Bachhuber as the insured at issue. The document also describes the 'allegations' as a 'Paraplegic infant due to a negligently performed external version' - the procedure performed exclusively by Drs. Bachhuber and Fruen. The document states that Dr. Bachhuber felt that his care could not be criticized. It offers no discussion of the quality of care provided by Dr. McKenna. The document concludes by stating that a claim reporting packet will be sent to Dr. Bachhuber for him to complete. It adds a request for Dr. Bachhuber's medical records, not the records of any of the other clinic physicians. It is clear that the call from the clinic must have focused on Drs. Bachhuber and Fruen and the external version, not Dr. McKenna or any aspect of the delivery of the baby.
Dr. Bachhuber's completed form reporting the claim is consistent with the documentation of the clinic's call. In the portion of the form asking the insured to identify 'other doctors involved in the case', Dr. Bachhuber noted that Dr. Fruen assisted with the external version and that Dr. McKenna delivered the baby. But the report identifies the insured as Dr. Bachhuber and identifies the 'injury alleged by patient' as 'Damage to spinal cord of infant at time of external version for breech presentation.'
A reasonable fact-finder would not conclude that the single reference to Dr. McKenna notified The Doctors' Company of a potential claim against him. Washington Casualty also contends that the policy could be reasonably construed to mean that 'a claim against multiple insureds, which was later amended to name another additional insured who was also involved in the prenatal care and delivery to the same mother and child, is the same claim.' For this proposition, Washington Casualty attempts to find support in the policy's per-claim limit provision. This provision operates to include in a single claim a series of claims arising from a single course of prenatal care with the same patient:
2. Two or more causes of action arising from the same act or omission to act, or from the same series of acts or omissions to act in rendering or failing to render professional services to a woman and her unborn child or children, during the course of pregnancy (including pre-natal care, delivery and post-natal care) will be considered to be a single claim{.}
But this language is for the purpose of determining the per-claim liability limit. Nothing in the policy would cause an insured to understand it as modifying or controlling the notice of claim requirements. Other courts have rejected similar efforts to make a timely notice of claim serve as notice of a dissimilar, though related, claim that arose after the policy period. See Homestead Ins. Co. v. American Empire Surplus Lines Ins. Co., 44 Cal. App. 4th 1297, 52 Cal. Rptr. 2d 268 (1996); Camalloy Wire, Inc. v. National Union Fire Insurance Co. of Pittsburgh, Pa., 235 A.D.2d 202, 651 N.Y.S.2d 519 (1997). Because the timely notice by Dr. Bachhuber focused only on the version procedure and the doctors who performed it, we conclude that Dr. Bachhuber's report failed to provide adequate notice, actual or inferred, of a potential claim against Dr. McKenna.
The Doctors' Company's November 1995 letter appointed counsel to defend 'the interests of Dr. Bachhuber, Dr. Fruen and Hedequist, McKenna and Bachhuber' in the matter of the Migliuris' original claim. This letter also does not support a finding of notice. Washington Casualty provides no
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