Summary: A discussion of miscellaneous professional liability deals with a range of topics: health care providers, blood banks, testing labs, optometrists, and veterinarians. These risks used to be covered through the use of endorsements to the physicians, surgeons, and dentists liability policy and to the hospital professional liability policy. Now, the risks are insured under stand alone coverage forms.
The wording of the insuring agreements and exclusions and conditions of these miscellaneous liability coverage forms closely mirrors the wording found on the physicians liability form and the hospital liability form. This article presents the miscellaneous liability forms and offers analyses of them, but the forms will not be reprinted in their entirety; only the clauses and words that make the miscellaneous liability coverage forms unique will be reproduced here. References will be made to the physicians liability form and hospital liability form where appropriate.
Allied Health Care Providers
The coverage form is PR 00 05 09 08and it closely resembles the physicians, surgeons and dentists professional liability coverage form, PR 00 01 09 08. The insuring agreements under PR 00 05 apply to individual professional liability (coverage A) and to group professional liability (coverage B) like the agreements under PR 00 01; see Physicians Professional Liability Insurance. However, there is a difference to note.
b. This insurance applies to injury only if:
(3) The injury arises out of the individual insured's profession as a licensed health care provider.
Analysis
PR 00 01 notes that the insurance applies if the injury out of the insured's profession as a physician, surgeon, or dentist. PR 00 05 changes this to the insured's profession “as a licensed health care provider” (this is a coverage A exclusion). The policy does not list just what a “licensed health care provider” includes, but nurses, paramedics, and pathologists and radiologists come to mind. If the insured causes injuries due to the providing of or the failure to provide professional health care services, PR 00 05 is there to provide insurance coverage.
PR 00 05 also applies to injuries caused by a “business entity incident” (group professional liability), just like PR 00 01. However, under PR 00 05, the business entity incident is an act or omission arising out of the providing of or failure to provide professional health care services as opposed to business entity incident arising out of professional medical or dental services.
The exclusions, who is an insured clauses, supplementary payments section, limits of insurance section, and the conditions section of PR 00 05 are basically the same as the ones found on PR 00 01. The definitions are also the same, except that PR 00 05 relates the medical incidents and the business entity incidents to the general scope of professional health care services and does not limit them to medical and dental services as does PR 00 01.
Blood Banks
A blood bank has two major professional liability exposures—injury to donors that occurs in the process of drawing their blood; and injury to persons to whom the blood is administered, resulting from impurities in the blood, improper typing of the blood, etc.; the transmission of the AIDS virus is an example of such a covered injury. PR 00 07 09 08—blood banks professional liability coverage form—covers injury arising out of a medical incident that occurs during the policy period and that arises out of the named insured's business as a blood bank. The coverage form mirrors the hospital professional liability coverage form, PR 00 03 09 08, in content and language see Hospital Professional Liability Insurance; therefore, only the different clauses will be shown in this article.
The clause about the insurance applying only if the injury arises out of the named insured's business as a blood bank is the only difference in the insuring agreements between PR 00 07 and PR 00 03. The exclusions are also the same on both forms, with two exceptions: PR 00 07 does not have the antitrust law exclusion that appears on PR 00 03; and, PR 00 07 excludes coverage for injury arising out of the ownership, maintenance, use or entrustment to others of any auto, whereas PR 00 03 adds aircraft and watercraft to this exclusion. The insured blood bank should be especially aware of this auto exclusion since many blood banks operate bloodmobiles; if the insured has a bloodmobile exposure, an auto policy is required. The supplementary payments section, the who is an insured section, the limits of insurance section, and the conditions section of PR 00 07 are the same as on PR 00 03.
The definitions section of PR 00 07 differs from the one on PR 00 03 in that PR 00 07 does not have a definition for “ambulance”. This comports with the exclusions sections of the two coverage forms in that PR 00 03 declares that the auto exclusion does not apply to any loading or unloading of patients from any ambulance; PR 00 07 has no such exception to the auto exclusion, so a definition of “ambulance” would be superfluous. There is also a difference in the definition of “medical incident” that accommodates the scope of the blood banks operations.
7. ”Medical incident” means any act or omission arising out of:
a. The providing of or failure to provide professional health care services in connection with the making of a blood donation;
b. The handling or distribution of any blood products; or
c. Any representation or warranty made at any time with respect to any blood product.
Analysis
The wording of this definition makes the point that PR 00 07 applies to the liability exposures that the insured blood bank faces that are noted at the beginning of this discussion on PR 00 07. If the insured injures someone in connection with the making of a blood donation, for example, through the negligent use of a needle, PR 00 07 will apply. If the insured distributes any blood products such as plasma or whole blood through a transfusion, and the product is tainted or somehow causes an injury, PR 00 07 will apply to a claim. So, the insured has professional liability and product liability coverages through PR 00 07.
A question may arise if someone is injured in a bloodmobile. PR 00 07 excludes coverage for injury arising out of the ownership or use of any auto and this includes a bloodmobile. However, PR 00 07 might respond if someone is giving blood in a bloodmobile and suffers an injury. This is so for at least two reasons. First, the auto exclusion should be applied only if the injury is caused by the auto; if the blood donor is injured due to the making of a blood donation, the donation process, not the bloodmobile, caused the injury. Second, if the injury occurs while the bloodmobile is not moving and is being used as a process center, an argument can be made that the bloodmobile is mobile equipment at the time of the incident and therefore, not included in the auto exclusion. After all, the definition of “mobile equipment” includes a vehicle maintained primarily for purposes other than the transportation of persons or cargo. A bloodmobile set up as a blood donation processing center is certainly being used for purposes other than the transportation of cargo or persons. Furthermore, it would seem too be illusory coverage if the insured is a blood bank, and an insurer providing coverage for professional health care services in connection with the making of a blood donation, were to deny coverage for someone injured during the blood donation process simply because the injury occurred in a bloodmobile.
Diagnostic Testing Laboratories
PR 00 09 09 08 is the form used for diagnostic testing laboratories professional liability coverage. The wording of the form parallels that found on PR 00 03, the hospital professional liability coverage form. This discussion centers on those clauses that are unique to PR 00 09.
b. This insurance applies to injury only if:
(1) The injury is caused by a “laboratory incident” that takes place in the “coverage territory”;
(2) The injury occurs during the policy period; and
(3) The injury arises out of your business as a diagnostic testing laboratory or facility.
Analysis
This clause identifies PR 00 09 as a coverage form that applies to liability arising out of the named insured's business as a diagnostic testing lab. The term “laboratory incident” is a defined term that will be discussed later, but suffice it to say that PR 00 09 is meant to apply to a breach of professional care by the insured.
The exclusions on PR 00 09 are the same as the ones found on PR 00 03 with some exceptions. PR 00 09 has no antitrust law exclusion or an auto exclusion. However, the diagnostic testing liability form does have two exclusions that are not on PR 00 03.
d. Therapeutic Treatment
Injury arising out of any therapeutic treatment rendered by or at the direction of the insured.
f. Liability Arising Out Of Acts Or Omissions As Doctor Of Medicine.
Injury arising out of an insured's liability for his or her acts or omissions as a doctor of medicine.
Analysis
PR 00 09 is a coverage form for diagnostic liability; exclusion d. emphasizes that point. Diagnostic activities deal with identifying a disease or an illness; therapeutic activities deal with treating or remedying a disease or disorder. If the insured wants liability insurance for his or her therapeutic activities, PR 00 09 is not the form to use.
Similarly, exclusion f. applies to the acts or omissions of the insured as a doctor. PR 00 09 applies to diagnostic testing activities. PR 00 01—physicians, surgeons and dentists professional liability coverage form—is the coverage form to use if the insured is a doctor and wants professional liability insurance. If an insured is both a doctor and runs a diagnostic testing lab, he or she would need the two coverage forms at the very least to insure proper coverage. (Remember, PR 00 01 excludes coverage for injuries for which the insured may be held liable as proprietor, officer, or member of any laboratory—see exclusion d. on PR 00 01.)
PR 00 09 has the same supplementary payments, who is an insured clauses, limits of insurance clauses, and conditions as PR 00 03. The definitions on the two forms are mostly the same, except that PR 00 09 does not have a definition for “ambulance” or “auto”. PR 00 09 does have a definition for “laboratory incident”.
5. ”Laboratory incident” means any act or omission in the providing of or failure to provide professional diagnostic testing services:
a. In the performance of clinical-pathological examinations and services for diagnosing the status of health, disease or injury of human beings or animals; or
b. In the taking of diagnostic tests and subsequent reporting of or reliance upon the results of such tests.
Analysis
This definition outlines the scope of coverage that is granted in the insuring agreement of PR 00 09. “Laboratory incidents” are the key to coverage under the terms of PR 00 09, and this definition makes the point that the insured has to be engaged in his or her professional capacity of diagnosing illnesses or injuries in order for PR 00 09 to apply. Note that the definition includes diagnostic testing that the insured may do on animals. And, clause b. of the definition means the insured has completed operations coverage should a faulty diagnosis cause a doctor or a veterinarian to treat a patient incorrectly, causing harm to that patient.
Optometrists
Optometrists professional liability coverage is provided through the use of form PR 00 11 09 08. This form closely tracks with the physicians, surgeons and dentists coverage form, PR 00 01, so only the clauses unique to PR 00 11 will be discussed here.
The insuring agreements on PR 00 11 offer coverage for individuals and for groups. The coverage is based on optometric incidents (a defined term) as opposed to the medical incidents requirement on the physicians coverage form.
b. This insurance applies to injury only if:
(1) The injury is caused by an “optometric incident” that takes place in the “coverage territory”;
(2) The injury occurs during the policy period; and
(3) The injury arises out of the individual insured's profession as an optometrist.
Analysis
Optometrists are persons who practice the profession of examining the eye and prescribing correctional lenses, but not drugs or surgery. The practice of optometry can include the production or reproduction of ophthalmic lenses and kindred products, including the mounting thereof to supporting materials and the fitting thereof to the eyes; unfortunately for the insured under PR 00 11, such activities are excluded from coverage.
The exclusions on PR 00 11 are basically the same as those found on PR 00 01. However, there is the one other exclusion on PR 00 11 that bears mention.
g. Products Liability
Injury arising out of:
(1) The production or reproduction of ophthalmic lenses and related products, including the mounting of such lenses into frames;
(2) The fitting of ophthalmic lenses to the eyes; or
(3) The preparing, selling, handling, or distributing of optical goods or products in connection with your practice of optometry.
Analysis
PR 00 11 does not provide products liability coverage for the insured even though he or she may have such an exposure in connection with the practice of optometry. Products liability coverage will have to be provided under PR 00 01 as a professional medical service, or under a CGL form as a products/general liability exposure. PR 00 11 applies only if the insured causes injury through examining someone's eyes or through a faulty prescription for a patient.
This products liability exclusion seems to be quite a limitation on the coverage provided by PR 00 11. Especially troubling is the fact that the fitting of lenses to the eyes is not a covered exposure; however, PR 00 11 wants to leave such exposures in the hands of opticians, with the insureds under PR 00 11 sticking strictly to the business of examining eyes and writing prescriptions for glasses.
The remaining provisions of PR 00 11 are the same as the ones on PR 00 01. The only difference is that the definitions section of PR 00 11 defines optometric incident instead of medical incident.
7. ”Optometric incident” means any act or omission:
a. Arising out of the providing of or failure to provide professional optometric services by:
(1) The insured; or
(2) Any person acting under the personal direction, control, or supervision of the insured.
b. Arising out of the insured's serving as a member of a formal accreditation, standards review or equivalent professional board or committee.
Analysis
“Optometric incident” is defined to provide the same coverage as the definition of “medical incident” in the physicians liability form, except that it refers to any act or omission in the furnishing of professional optometric services. Any such act or omission together with all related acts or omissions in the furnishing of such services to any one person shall be considered one optometric incident. And, the scope of professional optometric services is limited by the exclusions that appear on PR 00 11.
Veterinarians
The veterinarians professional liability coverage form is PR 00 13 09 08. PR 00 13 follows the format of the physicians, surgeons and dentists professional liability coverage form, PP 00 01. This discussion will highlight those particular parts of PR 00 13 that distinguish PR 00 13 from PR 00 01.
PR 00 13 offers coverage for individual professional liability (coverage A) and for group professional liability (coverage B) based on a “veterinary incident”; “veterinary incident” is a defined term that will be discussed later.
The exclusions on PR 00 13 are the same as those on PR 00 01 for the most part; however, there are some differences.
PR 00 01 has an exclusion for liability arising out of the insured's being a proprietor, administrator, or trustee or governor of any hospital, clinic, or other enterprise. The veterinarian liability form does not have this particular exclusion, probably because a vet, while many times in solo practice, does operate hospital facilities, albeit animal hospital facilities, on his premises. Since this is such a normal risk exposure for a veterinarian, it would make no sense for the insured vet to not have coverage, or to be forced to purchase an entirely separate policy to handle the hospital exposure.
PR 00 13 has three exclusions that PR 00 01 does not have.
f. Theft
Liability arising out of the theft of any animal.
g. Fire Liability
Injury due to fire, however caused.
h. Auto
Injury arising out of the ownership, maintenance, or use or entrustment of any “auto”. Use includes operation and loading or unloading.
Analysis
It would be easy to say that these exposures are excluded because they have nothing to do with the insured's profession as a veterinarian; after all, the ordinary, non-professional citizen could cause an injury to an animal arising out of a theft, or a fire, or the use of an auto. However, a vet could have these exposures. For example, if the vet is treating a pet at the vet's clinic and accidentally causes a fire that kills the pet, the vet is liable for the loss, but where is the liability coverage? PR 00 13 does not have it; the CGL form doesn't have coverage due to the care, custody, or control exclusion; and the commercial property form does not apply since that form does not consider animals as covered property (except under certain circumstances).
If the insured vet feels the need for liability coverage in such an instance, he or she should consider a specialty type coverage (an animal mortality policy) for the exposures of theft or fire or auto loss to an animal he or she is treating, or perhaps use the legal liability coverage form, CP 00 40. This coverage form applies to the liability of the insured for direct loss or damage to tangible property of others in the care, custody, or control of the insured. (For more information on CP 00 40, see Legal Liability Coverage Form.
The rest of PR 00 13 has the same provisions as PR 00 01: supplementary payments, who is an insured, limits of insurance, conditions, and definitions. The only difference in the wording of the clauses of the two forms is that PR 00 13 refers to “veterinary incident” instead of “medical incident”, in keeping with the fact that PR 00 13 is for vets. And, speaking of “veterinary incident”, that is a defined term.
11. ”Veterinary incident” means any act or omission:
a. Arising out of the providing of or failure to provide professional veterinarian services by:
(1) The insured; or
(2) Any person acting under the personal direction, control or supervision of the insured.
b. Arising out of the insured's serving as a member of a formal accreditation, standards review or equivalent professional board or committee.
Analysis
PR 00 13 provides liability coverage for injury caused by a veterinary incident that takes place in the coverage territory, that occurs during the policy period, and that arises out of the insured's profession as a veterinarian. This definition simply reinforces the aim of PR 00 13, namely, liability coverage for the insured if the insured causes injury through his or her profession as a veterinarian.
And, if the insured causes injuries through serving as a member of a professional board or committee, PR 00 13 will respond to a claim against the insured. This means, as an example, that if the insured causes a fellow veterinarian public embarrassment and mental anguish by disparaging the fellow vet's professional skills, thereby causing that veterinarian to lose his or her accreditation, PR 00 13 will apply. At the very least, PR 00 13 will provide a defense for the insured against a lawsuit, and, if the insured is found liable, PR 00 13 will pay those sums that the insured is legally obligated to pay as damages.