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Firearm counseling by physicians: coverage under medical liability insurance policies. (Original Article).

Background: Physicians who offer firearms counseling may increase their legal liability, depending on the attitudes of their medical malpractice insurance carriers.

Methods: A survey was mailed to the 100 largest medical malpractice insurers. Requested data included their experience with claims involving allegations of negligent firearm counseling by physicians, their opinion regarding whether firearm counseling by physicians would be covered under their medical malpractice policies, and their prediction of how their insurance group or company would handle such claims.

Results: Fourteen surveys were returned. No respondents reported having dealt with a case involving an allegation of negligent firearm counseling by a physician. Eight respondents (57%) thought that such counseling would not be covered under their medical malpractice policy, whereas six respondents (43%) said that it would.

Conclusion: A majority of responding insurers thought that physician firearm counseling would not be covered under their medical malpractice policies. Physicians wishing to counsel their patients about the risks and benefits of owning and using firearms are advised to seek assurance of medical malpractice insurance coverage from their insurers or the annexation of a rider to their current policies.

**********

In recent years, there have appeared in the medical literature calls for physicians to take a more active role in preventing gun violence. (1-5) I have previously suggested, however, that physicians who engage in firearm counseling may risk greater legal liability than physicians who decline to engage in such discussion. (6) Closely related to the issue of potential legal liability is that of medical liability insurance, which strongly affects the practice of medicine. Thus, "Few doctors are willing to risk clinical practice without it.... If insurance is unavailable, or if coverage is inadequate, a doctor may leave the individual practice of medicine"; (7) likewise, "Premium costs for high-risk specialties such as obstetrics are causing doctors to change the way they practice, as by ceasing to deliver babies." (7) Analogously, I think that any refusal of medical malpractice insurers to cover firearm counseling by physicians is an important consideration for physicians who are otherwise inclined to counsel pa tients about the risks and benefits of owning and using firearms. Stated another way, I think that physicians who are inclined to counsel their patients about firearms should be interested in knowing whether such counseling is covered under their medical liability insurance policies. For example, assume that a patient divests a firearm on the advice of a physician that the risk of harm outweighs the benefit of self-protection. The patient subsequently is the victim of a rape, robbery, aggravated assault, or homicide and sues the physician for medical malpractice, alleging that the advice he gave her was negligent. Would such counseling fall within the scope of medical malpractice insurance policies?

Medical liability contracts share several features: 1) a coverage clause that outlines the types of risks the insurer is willing to assume, 2) a broad exclusion provision that highlights various types of risks or behaviors that the insurance company is unwilling to assume, 3) a narrower "intentional acts" provision stating that injuries or acts "expected or intended" from the insured's perspective are excluded, 4) a duty-to-defend provision that compels the company to hire legal counsel for the insured and pay defense costs, and 5) a duty-to-pay clause that outlines the conditions under which the insurer will pay once liability has been established. (8) Insurers that face a claim alleging that an insured physician negligently counseled a patient regarding firearms might choose to 1) defend or settle the action; 2) defend the action with a reservation of rights (Under a reservation of rights, the insurer provides a defense for the insured even if it thinks that it is under no obligation to do so, withdrawing a nd/or seeking reimbursement later if facts prove it to be correct. (9); 3) seek a declaratory judgment to determine whether it owes a duty to defend (An insurer could do this either by filing a separate declaratory judgment action (10) or by filing a cross-complaint for declaratory relief in the underlying personal injury action.(11); or 4) deny the request for a defense. They might choose to ground their decision in any of the above-mentioned clauses or provisions. To learn more about the attitudes of medical liability insurers toward coverage of firearm counseling by physicians, I conducted a survey.

Methods

I created a questionnaire (Table 1) and sent it to the vice-presidents of claims at each of the top 100 medical maLpractice insurers listed on the insurecom web site (http:// www.insure.com/) on June 1, 2001. The questionnaires were mailed on June 25, 2001. The package mailed consisted of a cover letter, the questionnaire, and a self-addressed return envelope. In each cover letter, I asked respondents to forward me a copy of their boilerplate medical malpractice insurance policy. The U.S. Postal Service returned seven questionnaires because of address changes. These seven questionnaires were remailed after the intended recipients' current addresses were verified.

Results

Fourteen (14%) of the 100 recipients returned the surveys. Five respondents included copies of their medical liability policies (Table 2). None of the respondents reported having dealt with a case involving an allegation of a physician's negligent firearm counseling. Eight respondents (57%) thought that such counseling would not be covered under their medical malpractice policies. Four (50%) of these eight respondents reported that they would deny the request for a defense, two (25%) reported that they would seek a declaratory judgment to determine their duty to defend, and one (12.5%) reported that the insurer would defend with a reservation of rights. Six respondents (43%) thought that physician firearm counseling would be covered under their medical malpractice policies. Four (67%) of these six respondents reported that they would defend or settle, and two respondents (33%) reported that they would defend with a reservation of rights. Two of the respondents who thought that firearm counseling was not cover ed under their medical liability policies forwarded copies of their firms' medical malpractice policies (Table 2, Policies 1 and 2), as did three respondents who thought that firearm counseling was covered under their medical liability policies (Table 2, Policies 3-5)

Discussion

I suspect that, despite assurances of anonymity and confidentiality, many survey recipients declined to respond because of concern that their responses might be used in connection with specific present or future cases. think that this was probably the single most important explanation for the low response rate. I do not think that additional mailings of the survey would have increased the response rate substantially. In my experience, subsequent mailings of surveys yield only a fraction of the response rate obtained in the first mailing. Furthermore, subsequent mailings may confound matters when surveys are conducted anonymously (as mine was), because the investigator cannot be sure whether the response to a subsequent mailing represents new data (ie. a response from someone who did not respond to the first mailing) or data already collected (ie, a second response from someone who responded to the first mailing and is responding again despite instructions not to do so).

Although a low response rate certainly raises questions about the representativeness and generalizability of the data, I am concerned that this may be an insurmountable problem in any research project that relies on data provided by the insurance industry. I was not surprised to learn that none of the responding insurers reported dealing with a claim involving negligent firearm counseling by a physician. A LexisNexis search conducted previously had turned up no such cases. (6)

Eight responding insurers (57%) thought that a malpractice claim arising from allegedly negligent firearm counseling by physicians would not be covered under their malpractice policies. All eight thought that firearm counseling fell outside the scope of their policies' coverage clauses. Six responding insurers (43%) thought that a malpractice claim arising from allegedly negligent firearm counseling by physicians would be covered under their malpractice policies. Three indicated explicitly that firearm counseling fell within the scope of their policies' coverage clauses, and one of these commented in addition that "no exclusions would apply." The remaining three explained that firearm counseling fell within the scope of their policies' coverage clauses as well. One respondent wrote, "Conduct by a patient that was directed by the advice of a physician within the framework of a physician-patient relationship is always insured under the policy." A second respondent wrote that the acts would be covered because "t he advice was offered within the context of the physician-patient relationship [and] our policy's definition of professional services is quite broad." A third respondent wrote that the acts would be covered "if the petition alleges medical malpractice."

Four respondents (29%) stated that they would defend or settle, four (29%) replied that they would deny the request for a defense, four (29%) wrote that they would defend with a reservation of rights, and two (14%) indicated that they would seek a declaratory judgment. What does all this mean for physicians who are inclined to counsel patients regarding firearms? Fewer than one in three of the responding medical liability insurers in my survey would defend or settle. The remaining two-thirds would deny the request for a defense, compel the physician to prevail in a declaratory judgment action before providing such a defense, or seek reimbursement from the physician post hoc for legal defense costs. I found it interesting that two of the six insurers that thought that physician firearm counseling was covered under their policies nonetheless would seek reimbursement later by defending under a reservation of rights. Clearly, from the counseling physician's point of view, none of these latter scenarios is optimal ; each might serve to chill his or her desire to offer firearm counseling.

How should physicians who are interested in firearm counseling interpret these results? First, they should seek clarification regarding whether firearm counseling by physicians is covered under their medical liability insurance policies. If such counseling falls outside the scope of coverage of their insurance policies, physicians who still wish to counsel their patients regarding firearms might consider requesting the attachment of a rider to the policy expressly providing for coverage in such situations.

My reading of the policies forwarded to me yielded no textual explanation of the different positions taken by the various insurers. Of course, I received policies from only 5 of 14 respondents. Had all respondents forwarded policies to me, textual bases for the differing positions of the insurers might have been found. It must also be kept in mind, however, that the insurers have available to them not just the text of their policies but also experience in applying and interpreting those policies in light of their states' statutory, regulatory, and case law. Explanations for the different positions taken by the insurers might be grounded in those sources. I would have been interested in learning whether the insurers attitudes correlated with some other factor, such as the insurer's size, the insurer's Standard & Poor's financial security rating, or the geographic location of the firm's corporate offices; however, the design of my study precluded gathering such information.

Conclusion

A slight majority of responding insurers thought that physician firearm counseling would not be covered under their medical malpractice policies. Fewer than one in three responding insurers reported that they would defend or settle suits involving such claims. The vast majority of respondents reported that they would deny the request for a defense, seek a declaratory judgment, or defend with a reservation of rights. Physicians who wish to counsel their patients regarding the risks and benefits of owning and using firearms are advised to seek an assurance of coverage from their insurers or the attachment of a rider to their policies.
Table 1

Survey and results


Please place a check (/) next to your answers of choice. Answers
requiring an explanation may be continued on the back of this
page of space is needed.

A patient divests herself of a firearm on the advice of her
physician (you may assume that the gist of the advice given by
the hypothetical physician to the patient is that, as concems
guns, the risk of harm outweighs the benefits afforded by self-
protection) and is subsequently the victim of a rape, robbery,
aggravated assault, or homicide. She sues her physician for
medical malpractice, alleging that the advice he
gave was negligent.

1. To the best of your knowledge, has your Group or Company
 ever had to deal with a case such as that described above?
(0%) YES [If YES, skip questions 4 and 5]
14 (100%) NO [If NO, skip questions 2 and 3]
2. What did your Group or Company do? [Answer this question
only of you answered YES to question 1.]
- Defended or settled
- Defended with a reservation of rights
- Sought a declatory judgment action to determine its duty to
 defend
- Denied the request for a defense
3. Your Company or Group did what it did: [Again, answer this
question only of you answered YES to question 1.]
- Because firearm counseling fell within the scope of the
 policy's coverage clause
- Because firearm counseling fell outside the scope of the
 policy's coverage clause
- Because firearm counseling fell within the scope of a
 policy exclusion provision
- For the following reason:
4. Do you believe the physician's acts would be covered under
 your medical malpractice policy? [Answer this question
 only of you answered NO to question 1.]
3 (21%) YES, because firearm counseling falls within
 the scope of the policy's coverage clause
3 (21%) YES, for the following reason:
6 (43%) NO, because firearm counseling falls outside the
 scope of the policy's coverage clause
0 (0%) NO, because firearm counseling falls within the
 scope of a policy exclusion provision
2 (14%) NO, for the following reason:
5. How do you think your Group or Company would respond
to the hypothetical described above? [Again, answer this
question only of you answered NO to question 1.]
4 (29%) Defend or settle
4 (29%) Defend with a reservation of rights
2 (14%) Seek a declaratory judgment action to determine its
 duty to defend
4 (29%) Deny the request for a defense

Please remember to forward to us a blind copy (ie, with
company-identifying information blcaked out) of your
boilerplate medical malpractice insurance policy.

Table 2

Medical malpractice insurance policies of five survey respondents

 Duty to pay Duty to defend

Policy 1 Damages "arising out of the "...any suit against an
 performance of professional insured seeking damages
 services rendered," where [arising out of performance
 professional services means of professional services],
 "health care services even if any of the
 performed in the insured's allegations of the suit are
 profession..." groundless, false, or
 fraudulent..."

Policy 2 Damages "arising out of the "...any suit against the
 rendering of or failure to insured under [the] insuring
 render professional agreement, even if any of the
 services," where professional allegations of the suit are
 services means "services groundless, false, or
 performed or which should fraudulent..."
 have been performed by an
 insured in furtherance of
 medical, surgical, dental, or
 nursing treatment and care of
 patients provided that...if
 a license is required under
 state law to provide such
 services, an insured shall be
 duly licensed by the state to
 provide such services..."

Policy 3 Damages "arising out of the "...any suit against the
 performance of professional insured seeking such even
 services damages, rendered or if any of the allegations of
 which should have been the suit are groundless,
 rendered...", where false, or fraudulent..."
 professional services means
 "professional health care
 services requiring
 specialized knowledge and
 skill in the delivery of
 health care, and includes
 service by a person, while
 acting within the scope of
 their duties."

Policy 4 Damages "arising out of the "...any suit against the
 rendering of or failure to insured seeking damages which
 render...professional are payable under the terms
 services" where professional of this policy, even if any
 services means "services of the allegations of the
 performed in the practice of suit are groundless, false,
 the...licensed medical or fraudulent."
 professional of the named
 insured."

Policy 5 "...claims which the insured "...any claim seeking those
 becomes legally obligated to damages, even if the
 pay because of 'professional allegations of the 'claim'
 services' provided or which are groundless, false, or
 should have been provided." fraudulent."

 Relevant exclusions

Policy 1 None








Policy 2 None
















Policy 3 None














Policy 4 None









Policy 5 None


Acknowledgment

I am grateful to Matt Gracey, Jr., of Gracey-Danna, Inc., for his comments on an earlier draft of this article.

Accepted March 27, 2002.

References

(1.) Cassel CK, Nelson EA, Smith TW, Schwab CW, Barlow B, Gary NE. Internists' and surgeons' attitudes toward guns and firearm injury prevention. Ann Intern Med 1998;128:224-230.

(2.) Davidoff F. Refraining gun violence. Ann Intern Med 1998;128:234235 (editorial).

(3.) American College of Physicians. Firearm injury prevention. Ann Intern Med 1998;128:236-241.

(4.) American Medical Association. Talk to your patients about gun safety. Am Med Mews 1998 Nov 9;9:39 (editorial).

(5.) Brown RL, Goldman LS. Physician Firearm Safety Guide. Chicago, American Medical Association, 1998.

(6.) Paola F. Physicians, firearm counseling, and legal liability. South Med J 2001;94:88-92.

(7.) Fiscina 8, Boumil MM, Sharpe DJ, Head M. Medical Liability. St. Paul, MN, West, 1991.

(8.) Rice WE. Insurance contracts and judicial discord over whether liability insurers must defend insureds' allegedly intentional and immoral conduct: A historical and empirical review of federal and state courts' declaratory judgments--1900-1997 Am U L Rev 1998;47:1131, 1146.

(9.) Hecla Mining Co v New Hampshire Ins Co, 811 P2d 1083, 1089 (Colo 1991).

(10.) Shell Oil Co v AC&S, Inc, 649 NE2d 946, 949 (Ill App Ct 1995).

(11.)RI Reynolds Co v California Ins Guar Ass'n, 235 Cal App 3d 595, 599 (Cal Ct App 1991).

RELATED ARTICLES: Key Points

* Among medical malpractice insurers who responded to mailed survey, 57% thought that a malpractice claim arising from a physician's alleged negligent firearm counseling would not be covered under their policies.

* Among respondents, only 29% reported that they would defend or settle such claims; the remaining 71% stated that they would deny the request for a defense, compel the physician to prevail in a declaratory judgment action before providing such a defense, or seek reimbursement from the physician post hoc for the cost of the physician's defense.

* Physicians who are interested in counseling patients about firearms are advised to seek clarification regarding whether such counseling is covered under their medical liability insurance policy.

From the Division of Medical Ethics and Humanities, Department of Internal Medicine, University of South Florida College of Medicine, and the Spinal Cord Injury Service, James A. Haley Veterans Affairs Hospital, Tampa, FL.

Reprint requests to Frederick A. Paola, MD, JD, Division of Medical Ethics and Humanities, Department of Internal Medicine, University of South Florida College of Medicine, MDC Box 19, 12901 Bruce B. Downs Boulevard, Tampa, FL 33612-4799. Email: fpaola@hsc.usf.edu

Copyright [C]2003 by The Southern Medical Association

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COPYRIGHT 2003 Southern Medical Association
No portion of this article can be reproduced without the express written permission from the copyright holder.
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Author:Paola, Frederick A.
Publication:Southern Medical Journal
Geographic Code:1USA
Date:Jul 1, 2003
Words:3155
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