Policyholder Services

Does my OMIC policy cover me for “breach of confidentiality” claims if a patient’s medical information becomes public?

There are many ways in which a patient’s medical information could become known by others. For example, other patients could overhear staff conversations, or medical records could be lost in transit between office locations. Coverage for any resulting injury may exist under the OMIC policy, depending upon how the complaint is worded, for the unintentional release of information arising out of the delivery of health care services. (OMIC’s policy specifically excludes intentional or malicious acts or omissions, as well as certain allegations such as libel, slander, invasion of privacy, and defamation of character.)

Although certain claims alleging breach of confidentiality may not be covered under the professional liability coverage agreements of the policy, coverage may instead be extended under Additional Benefit B, Broad Regulatory Protection for security breaches and privacy breaches. This benefit provides reimbursement for legal expenses and fines or penalties related to governmental proceedings instituted against the insured based upon violations of US federal, state, and local statutes and regulations associated with the control and use of personally identifiable financial or medical information, such as the Health Insurance Portability and Accountability Act (HIPAA) privacy regulations. (Other regulatory proceedings are also covered. Please see your policy for details.) Coverage under this additional benefit is limited to $50,000 for each regulatory proceeding and in the aggregate.

OMIC does not assume any duty to defend under Additional Benefit B. And, while OMIC will provide a list of panel counsel from which the insured can select, the insured has complete freedom of choice of counsel. If the insured retains non-panel counsel, a co-payment applies. In addition, fees for non-panel counsel are subject to a maximum hourly rate.

Coverage may also be available through your general liability carrier. In a 2004 ruling, the Delaware Superior Court found that a physician’s commercial liability insurer, not his medical professional liability insurer, must defend him against a claim arising from the unauthorized release of confidential patient information. In the case, the judge determined that a breach of patient confidentiality constituted ordinary negligence, not medical malpractice.