Policyholder Services

Coverage for Non-Traditional Services

By Kimberly Wittchow, OMIC Legal Counsel

Digest, Spring 2008

This article will review the OMIC professional liability policy coverage of various activities, such as call, forensic consulting, diagnostic and interpretive services, and cosmetic skin care.

OMIC’s policy responds to claims that result from injury to a patient because of a professional services incident (an act, error, or omission) arising from direct patient treatment. Direct patient treatment is defined as the provision of health care services to a patient, including making diagnoses, providing medical or surgical treatment, prescribing or dispensing drugs or medical supplies or devices, rendering opinions to a patient, giving advice to a patient, or referring a patient to, or consulting about a patient with, another physician or health care provider. The policy responds, therefore, when you are treating an individual within a physician-patient relationship. Of course, there are times when the issue of whether an individual was your patient will arise. As the claim unfolds it will be determined whether such a relationship existed. If one did exist, you may have liability, and OMIC’s policy will respond. If no relationship existed, coverage may not be available, but most likely there would also be no corresponding duty to that individual on your part that could give rise to liability.

ER Call

The majority of OMIC insureds take ER call and OMIC’s policy is meant to cover it. If you have a duty to a patient, then a physician-patient relationship exists and coverage, within all the terms and conditions of your policy, applies. For more information about your on-call duties, see the lead article and Closed Claim Study in this issue.

Forensic Consulting

Forensic consulting takes many forms: providing expert witness testimony and undertaking independent medical exams are the most prevalent. There are several provisions of the policy to reference when determining whether there is coverage for these activities. First, as described above, there must be a physician-patient relationship (see the Hotline article). If not, no coverage applies. In addition, OMIC’s policy has a specific forensic consulting exclusion. It provides that OMIC will neither defend an insured nor pay damages or supplementary payments because of a Claim that arises out of services performed by the insured as a paid consultant. When such Claim is made by anyone other than the insured’s patient. As an example, this means that coverage would be excluded if an employer who hired you for an IME sued you over your determination (claiming you were negligent in your review). However, if the employee, the person being examined by you and thus your patient in a limited capacity, sued you because you missed a diagnosis that should have been apparent during your IME, you would be covered.

Diagnostic/Interpretive Services

Providing diagnostic and interpretive services may also expose you to liability. Again, to determine whether there is coverage, we look at whether direct patient treatment was provided. These services would fit under the definition of direct patient treatment as “consulting about a patient with another physician or health care provider.” However, we would also need to consider the telemedicine issue of practicing medicine in multiple states. Your policy specifically excludes defense, damages, or supplementary payment coverage for direct patient treatment when the health care provider does not hold the required license, certification, or accreditation. Thus, you will need to make sure you are properly licensed in the states where the patient is located as well as where you practice.

Cosmetic Skin Care

In the skin care arena, services are often rendered by allied health care professionals under the supervision of either an ophthalmologist within his or her office or, if at a Medispa, an ophthalmologist medical director who may or may not be on-premises. OMIC covers the insured if sued for direct patient treatment provided not only by the insured, but also by an employee acting within the scope of his or her training, licensure, and employment or any other person acting under the supervision, direction, or control of the insured. If these criteria are met, the insured will be covered for the vicarious liability of his or her employees or supervisees. Careful attention should be paid to the scope of practice of the ancillary personnel, to ensure they are practicing within the scope of their licensure. Also, there is a difference between directly supervising staff and being a medical director. The policy specifically excludes coverage for your role as a medical director at any facility, unless that facility is also insured by OMIC under your policy. Many of our insureds have not considered their Medispas a separate entity and have not applied for coverage, leaving themselves as medical directors, their business, and their staff vulnerable to liability suits.

Another consideration is that insureds are only covered for procedures within their coverage class. There are four coverage classes. In the no surgery class, mechanical epilation is specifically permitted. Restricted surgery class 1 additionally covers laser hair removal, injection of Botox or collagen and other fillers, micropigmentation, photorejuvenation, superficial chemical peels limited to the epidermis, and electrical epilation. Less restrictive surgery class 2 also covers thermage. Surgery class 3 has no restrictions except for the general policy exclusions. Refer to your policy or contact your underwriter to determine what specific cosmetic procedures are covered by your coverage class.