Failure to Warn Claim Not Covered
August 26, 2013
The insurer filed a declaratory judgment action seeking a declaration that the liability policy did not cover a claim of medical malpractice against the insured (Balfour) based on failure to warn. This case is Hanover American Insurance Company v. Saul, 2013 WL 812353.
Briner alleges that Saul, the insured's former spouse, sexually assaulted one of the insured's minor patients in the office building where the insured has her clinic, and that the insured committed medical malpractice by failing to warn her patient of Saul's history and propensity to sexually molest under age females. Balfour's insurer filed a motion seeking a no-coverage declaration because the policy it issued to Balfour “indisputably excludes the acts she is accused of committing”.
The court saw its task in this instance to construe the professional liability policy to determine whether the insurer owed a duty to defend and indemnify the insured with respect to the claims brought by Briner. The policy provided indemnification for all sums to which the insurance applies and for which the insured becomes legally obligated to pay as damages caused by an accident from an incident during the policy period. The injury must be caused by an insured under the policy. “Incident” is defined as “any negligent omission, act, or error in the providing of professional services by an insured”. “Professional services” consisted of “services that are within the scope of practice of a chiropractor in the state where the chiropractor is licensed”.
The insurer asserts that the policy does not afford coverage because there was no act of professional malpractice. It argued that coverage is provided only when Balfour negligently treats a patient, not for violating a duty to warn. Balfour responded that whether she owed a professional duty to warn and protect her minor patient from Saul is an issue within the exclusive province of the state court presiding over the underlying lawsuit.
The court did not agree with Balfour that it should refrain from adjudicating the scope of her professional duties. The court said that it was appropriate to resolve the issue on the basis of the pleadings, plus the insurance policy, and the Briner complaint.
The pertinent policy language is clear, said the court. The contractual duty to defend and indemnify is triggered by an injury that must be caused by an accident arising from an incident. An incident is limited to any negligent omission, act, or error committed by Balfour in the provision of services that are within the scope of practice of a chiropractor. While the conduct alleged in the Briner complaint may be a violation of some duty, it is not a violation of a professional duty Balfour owed as a chiropractor. The court found that the warnings Balfour is alleged to have failed to provide do not fall within the scope of her professional services.
The court concluded that there was no basis stated for recovery under the policy for the claims asserted against the insured. The motion by the insurer to dismiss was granted.
Editor's Note: The United States District Court for the Western District of Oklahoma read the policy language and compared it with the complaint against the insured and simply found no relationship. A failure to warn was not included in the scope of professional services that the insured provided. As the court noted, the failure to warn patients of the insured's former husband's perversion may be a violation of some duty, but it was not a violation of the insured's professional duty as a chiropractor, and that professional duty was what the insurance policy covered.