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MARGOLIS v. PRUDENTIAL INS. CO. OF AMERICA

December 20, 1985

Solomon L. MARGOLIS, Plaintiff,
v.
The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant



The opinion of the court was delivered by: ROBINSON, JR.

 AUBREY E. ROBINSON, Jr., Chief Judge.

 This matter is before the Court on Defendant's Motion for Summary Judgment. Upon consideration of the pleadings and exhibits in this matter, the Court shall grant Defendant's motion in part and order the parties to appear for a hearing.

 BACKGROUND

 On March 10, 1980, Carol Lee Lally (the "Ward"), a 36 year old woman otherwise healthy, entered Sibley Memorial Hospital complaining of abdominal pain, fever and related symptoms. The Ward underwent surgery on March 10, 1980, which cured her abdominal condition. During the course of surgery, the Ward suffered cardiac arrest and cerebral hypoxia, resulting in brain damage and permanent coma. The Ward has remained in this comatose state since the operation and there is virtually no prospect for improvement. She is dependent on others for all activities of daily living and mobility.

 The Ward remained a patient at Sibley from March 10, 1980 until March 23, 1983. On that date she was transferred to The Greenery in Brighton, Massachusetts, which is an intermediate care facility. She currently resides at the Greenery.

 Plaintiff, Solomon Margolis, was appointed conservator for the Ward on June 23, 1980. Plaintiff filed a medical malpractice action against Sibley and others who were involved with the Ward's emergency room treatment and surgery. Sibley counterclaimed for doctor and medical service bills. On October 14, 1982, a jury returned a verdict for Plaintiff in the sum of $6 million; Sibley was granted judgment on its counterclaim. The parties agreed to compromise the verdict and judgment and settled the action in March 1983. The settlement terms were that the Ward would receive a total of $4.25 million from Sibley and staff, and that Sibley would forgive its bill for services rendered to the Ward, then in excess of $200,000 which amount included the counterclaim. Def.Ex. 10 & 11.

 The settlement also provided that the Conservator would remove the Ward from Sibley to the Greenery. In September 1982, Sibley had filed a petition, which the Conservator opposed, in the Conservatorship Proceeding to compel transfer of the Ward from Sibley to a nursing home. Sibley's petition recited that continued hospitalization was medically unnecessary, based on the unanimous conclusions of Sibley's Utilization Review Committee *fn1" rendered in July 1980 and August 1982 and based on the written opinion of the Ward's attending physician, David Bachhuber, M.D. Def.Ex. 7. After an evidentiary hearing, the Superior Court of the District of Columbia issued an order on September 27, 1982 directing the Conservator to file the necessary papers to secure medical evaluation of the Ward from suitable skilled care nursing homes. Def.Ex. 8. The Conservator did so but stated that pending the resolution of the medical malpractice verdict or other forms of payment requests, no sums were available to pay for such services. Def.Ex. 9. The day after the settlement petition was approved, the Ward was transferred to the Greenery.

 Plaintiff's complaint seeks damages of $250,000 and continuing medical expenses. There is no specific breakdown of the charges. For the purpose of this summary judgment motion, the Court breaks the disputed amount into two categories: 1) the balance of Sibley's unpaid charges covering the period August 1980 to March 1983; *fn2" and 2) unpaid medical bills, if any, and The Greenerys' charges from March 1983. Defendant denies liability for both categories and moves for summary judgment as a matter of law.

 DISCUSSION

 Fed.R.Civ.P. 56(c) allows a summary judgment motion to be granted if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Court must view all inferences to be drawn from underlying facts in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962); Kreuzer v. American Academy of Periodontology, 237 U.S. App. D.C. 43, 735 F.2d 1479, 1495 (D.C.Cir.1984). In deciding a motion for summary judgment, the Court looks beyond the pleadings and may take into consideration affidavits, depositions, including those taken in connection with a former action involving the same subject matter and the same parties, admissions, not limited to Rule 36 admissions, as well as oral testimony.

 1. Sibley's Expenses

 Defendant contends that it is not liable under its health insurance policy issued to Carol Lee Lally for any Sibley expenses. The Court agrees for the reasons discussed below and grants summary judgment to ...


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