AVOIDING LIABILITY BLOG

DO YOU REALLY NEED PROFESSIONAL LIABILITY INSURANCE?

Many nurses often wonder if purchasing their own, individual professional liability insurance, in which they are the named insured, is really necessary.  The following case is one to consider when deciding if you are going to purchase professional liability protection for yourself.  (1)

 

Sharona Cohen, an R.N., was a genetic counselor working  with  Dr. Andrew Gardner. Dr. Gardner provided OB GYN services and genetic counseling to his patients. A client sued Ms. Cohen and Dr. Gardner and alleged that Ms. Cohen  had “negligently rendered counseling services”. (2)  Ms. Cohen believed she should be covered under  Dr. Gardner’s policy and filed a declaratory judgment action  seeking a verdict in her favor without a trial that she was indeed covered under the Dr.’s  professional liability insurance policy.  

 

During lower court proceedings, the language of the policy was brought into question in terms of the coverage, if any, it afforded Ms. Cohen.  The policy clearly covered Dr. Gardner (he was referred to as “you” in the policy), his solo practice, his administrator, a substitute physician, and his estate. (3)  

 

The policy also contained the following language:

         “Be sure you understand that you are not covered under this policy for the acts of

           of certain people in your employment for whose conduct you are responsible unless

           they are insured under a separate professional liability insurance policy…” (Emphasis

           added).

 

The policy went on to state that if employees were covered under a separate professional liability insurance policy, Dr. Gardner’s insurance would cover the excess of the vicarious liability claim coverage provided by the employee’s policy.  It also listed certain individuals who would be excluded from this coverage section: employed physicians, physicians’ assistants, specialists’ assistants, nurses providing anesthesia services, nurse practitioners, and  nurse midwives employed by Dr. Gardner. (4)

 

In the lower Motion Court, Ms. Cohen argued many issues, one being that since she was not named in the exclusions listed in the policy (she was not providing anesthesia, nurse practitioner or nurse midwife services), she should be covered under Dr. Gardner’s policy.  At best, she argued, the language was ambiguous as to coverage.  The Motion Court agreed with this ambiguous language argument.  That decision was appealed to the Appellate Division of the New York Supreme Court and  it’s decision appealed  to New York highest court.

 

The appellate court held that there was no evidence to support the argument that Ms. Cohen would be covered under his policy given the above circumstances.  Moreover, the policy’s coverage language, standing alone, the court opined, does not provide professional liability insurance coverage for certain individuals [pursuant to the policy’s terms] (5), absent compliance with the other provisions of the policy.

The appellate court’s findings were reviewed and a Slip Opinion issued by the New York’s highest court. (6)   It was determined that Ms. Cohen was not an employee of Dr. Gardner’s but rather an independent contractor.  Further, Dr. Gardner’s policy covered medical incidents (such as surgery, births) and Ms. Cohen did not render any medical care that resulted in a medical incident.  In addition, Ms. Cohen was not a “Leased Employee” or a “Temporary Worker” (individuals who would be covered under the policy).  Therefore, the opinion stated, the appellate court’s decision must stand and no summary judgment would be entered in favor of Ms. Cohen.  Thus, no coverage was available for her under the Dr.’s professional liability insurance.

 

This case illustrates several points in regard to professional liability insurance policies:

  1. You  need to purchase and  maintain your own professional

liability insurance policy;

  1. If you are an independent contractor, you  must purchase your own professional liability policy;
  2. If you are an independent contractor and  have employees of your own, you need to make certain the employees are covered under your policy or that they purchase their own policy;
  3. If you are an employee, or purchase your own policy, carefully read the

professional liability insurance policies and/or any others upon you

rely (e.g., an employer’s policy);

  1. When unclear about a certain provision or provisions in a professional

liability insurance policy, seek clarification from the insurance company’s agent;

  1. If relying on an employer’s professional liability insurance policy, ask

for a copy or ask to read the policy in order to determine if you are a named

employee,  if you are covered under an endorsement to the policy, or if you are excluded from certain provisions, as examples;

  1. Carefully scrutinize the definition of  nursing practice in any policy and  decide if it includes your  role at your place of work or your role as an independent contractor;
  2. When purchasing your own professional liability insurance policy, obtain as much coverage for individual and aggregate claims during the policy period as you can afford; and
  3. If you are purchasing your own professional liability insurance, purchase an occurrence policy rather than a claims-made policy.

FOOTNOTES

  1. Cohen v. Medical Malpractice Insurance Pool of New York State, 56 A.D. 3d 2008.
  2.   A. David Tammelleo (2008).  “NY: Nurse Not Covered Dr.-Employer’s Policy:

                       Nurses Should Have Their Own Professional Ins”,49 (7) Nursing Law’s Regan

                      Report, 3.

  1. Id.
  2. Id.
  3. Cohen, supra note 1.
  4. Cohen v. Medical Malpractice Insurance Pool of New York State, 2010 N.Y. Slip Op. 30784(U) (2010).

 

DISCLAIMER

THIS BULLETIN IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT TO BE TAKEN AS SPECIFIC LEGAL OR ANY OTHER ADVICE BY THE READER. IF LEGAL OR OTHER ADVICE IS NEEDED, THE READER IS ENCOURAGED TO SEEK SUCH ADVICE FROM A COMPETENT PROFESSIONAL.
REFERENCES

ABOUT THE AUTHOR

Nancy Brent: Nursing

Nancy Brent: Nursing

Nancy J. Brent, RN, MS, JD, a nurse attorney in private law practice in Wilmette, IL, represents nurses and other health care providers before the state agency that regulates health professionals. Brent graduated from Loyola University of Chicago School of Law in 1981. Her experience prior to opening her private practice included a year of insurance defense for a major insurance company and establishing a law firm with two other attorneys. After three years of doing defense work at the firm, Brent decided to establish a private practice in 1986. Brent has published extensively and has lectured across the country in the area of law and nursing practice. She is a member of several legal and nursing professional associations, including the American Nurses Association, Sigma Theta Tau International Honor Society of Nursing, the Illinois State Bar Association, and The American Association of Nurse Attorneys (TAANA).

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