Some pharmacists have chosen not to fill contraceptive and abortion pill prescriptions based on their religious beliefs. Would this open the individual pharmacist and/or his pharmacy business to a lawsuit, with a resulting liability claim being made against the liability insurance policy?
Setting aside the point that some state laws may protect this individual choice by proscribing lawsuits in this area, and that a druggist’s professional liability policy may exclude coverage for such claims, how would a general liability policy address such a liability claim?
The commercial general liability coverage form promises to pay, “those sums that the insured becomes legally obligated to pay because of bodily injury or property damage to which this insurance applies.” So if a claim is made that a woman has suffered injury due to the refusal of the pharmacist to fill a legal prescription, the CGL form will apply, right?
Not so fast. There are other factors to consider.
First, the claimant has to suffer bodily injury. Having the insured pharmacist decline to fill a prescription most probably is not going to be considered bodily injury as defined in the CGL form.
Furthermore, the CGL form states that an employee is not insured for bodily injury arising out of his providing or failing to provide professional health-care services. This means the employee is not going to have coverage, but if the requirements of the insuring agreement are met, what about the named insured employer/pharmacy?
There are no exclusions in the CGL form that would prevent coverage for the named insured pharmacy, though one might point to the expected or intended injury exclusion. (Applying that exclusion has proven very problematic for insurers.)
Realistically, however, if the named insured pharmacy has a CGL form for its liability coverage, most insurers would attach an endorsement to the form pertaining to a professional health-care exposure.
For example, the ISO endorsement CG 22 36 outright excludes bodily injury arising out of the rendering or failure to render professional services as a pharmacist. On the other hand, CG 22 69 provides liability coverage for bodily injury arising out of the rendering of or failure to render such professional services, except for some stated exclusions. Some insurers may have their own manuscripted endorsements to address the professional health-care service exposure of the insured.
I am not aware of any lawsuits that have been filed over this matter, but it might be interesting to know of any that exist and if any certain outcomes have resulted. If anyone knows of any lawsuits in this area, please share the information in the comments section below.