Does a medical malpractice insurer have to cover a claim of sexual assault against the insured doctor? Not in the case of Elashker v Medical Liab. Mut. Ins. Co., 2007 NY Slip Op 09638 decided by the Third Department on Thursday. The doctor at issue was an attending physician at a nursing home. He was accused by a nurse employed by the nursing home of sexual assault. The doctor referred the claim to his medical malpractice insurance carrier. The insurance carrier investigated the claim but then denied coverage.
The doctor then commenced a declaratory judgment action that the insurer was obligated to defend him because the nurse had also been a patient of the doctor and she had testified in her underlying action that the doctor had been palpating her thyroid when the attack occurred.
The Third Department affirmed summary judgment in favor of the insurer. The medical malpractice policy at issue only covered claims brought against an insured for “Professional Services” that were provided or should have been provided. The Court stated that there was no evidence that the nurse ever complained about the doctor’s “professional services” or asserted that his conduct was professional malpractice. In such circumstances, the Court stated that the thyroid examination described by the nurse merely provided the occasion for the alleged assault and did not convert the doctor’s acts into professional malpractice.
I wonder if medical malpractice carriers offer a separate sexual assault rider to their policies.