Policyholder Services

Will OMIC cover me if I accidentally injure operating room staff during a surgical procedure?

One of OMIC’s insureds presented this question along with a hypothetical situation, in which a surgeon performing a procedure on an HIV-positive patient accidentally pricked a nurse with a needle and the nurse later tested positive for HIV. There are numerous other scenarios in which other medical personnel can be injured as a result of the physician’s actions.

The first issue to resolve is whether the injured person is considered your “employee” and, therefore, subject to worker’s compensation laws. Every state worker’s compensation law includes an exclusive remedy provision that stipulates that the benefits prescribed in the act are the covered injured employee’s sole remedy against the employer; the employee is not entitled to sue for additional damages. If you legally employ the injured party, then his/her exclusive remedy for recovery is through your worker’s compensation coverage. Even if the staff member were legally an employee of the hospital, coverage may exist under your worker’s compensation policy if you are considered a “special employer” based upon the relationship and extent of supervision you provide. For worker’s compensation purposes, it is possible for a person to have two employers. As an example, leased or temporary employees have a “general employer” (the leasing agency) and a “special employer” (the company/person to whom the employee is leased.)

It is also necessary to determine whether you are considered a “fellow employee” in the event it is determined you are not the “employer.” The majority of states protect fellow employees against tort liability along with the protections granted to employers who are in compliance with worker’s compensation laws.

Assuming you are neither the “employer” nor “fellow employee,” liability exposure does exist. Every state allows the employee and the employer/insurer recourse against a third party responsible for the employee’s workplace injury. In a majority of states, the employee can accept compensation from the employer/insurer and sue the third party who caused the injury. In a few states, the employee must choose between suing the third party or accepting compensation from the employer/insurer.

OMIC conducted extensive research to determine what coverage, if any, existed to protect the physician against such third-party-recovery claims. We posed this question to a variety of consultants, including attorneys, reinsurers, insurance instructors, and other professional liability carriers. It is their shared opinion that, absent the finding that the surgeon is a “special employer” of the nurse and covered under worker’s compensation, the liability exposure is general negligence rather than professional liability. As such, it should be covered under the physician’s comprehensive general liability policy or umbrella. We have learned, however, that some carriers have broad “professional services” exclusions and may attempt to deny coverage for any such claim on the basis that it falls within the scope of their professional services exclusion.

To our knowledge, no insurance policy extends coverage for intentional acts and a person who intentionally caused an injury would be uninsured.

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