Firearm counseling by physicians: coverage under medical liability insurance policies. (Original Article).
Background: Physicians who offer firearms This is an extensive list of small arms — pistol, machine gun, grenade launcher, anti-tank rifle — that includes variants.
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Methods: A survey was mailed to the 100 largest medical malpractice insurers. Requested data included their experience with claims involving allegations of negligent negligent adj., adv. careless in not fulfilling responsibility. (See: negligence) firearm firearm, device consisting essentially of a straight tube to propel shot, shell, or bullets by the explosion of gunpowder. Although the Chinese discovered gunpowder as early as the 9th cent., they did not develop firearms until the mid-14th cent. 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 In the context of marketing research, a representative sample drawn from a larger population of people from whom information is collected and used to develop or confirm marketing strategy. reported having dealt with a case involving an allegation The assertion, claim, declaration, or statement of a party to an action, setting out what he or she expects to prove.
If the allegations in a plaintiff's complaint are insufficient to establish that the person's legal rights have been violated, the defendant can make a 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 annexation, in international law, formal act by which a state asserts its sovereignty over a territory previously outside its jurisdiction. Many kinds of territory have been subject to annexation, chief among them those inhabited by settlers of the annexing power, 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 obstetrics (ŏbstĕ`trĭks), branch of medicine concerned with the treatment of women during pregnancy, labor, childbirth (see birth), and the time after childbirth. are causing doctors to change the way they practice, as by ceasing to deliver babies." (7) Analogously a·nal·o·gous
1. Similar or alike in such a way as to permit the drawing of an analogy.
2. Biology Similar in function but not in structure and evolutionary origin. , 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 A person is guilty of aggravated assault if he or she attempts to cause serious bodily injury to another or causes such injury purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life; or attempts to cause or purposely or , or homicide homicide (hŏm`əsīd), in law, the taking of human life. Homicides that are neither justifiable nor excusable are considered crimes. A criminal homicide committed with malice is known as murder, otherwise it is called manslaughter. 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 An individual or company who, through a contractual agreement, undertakes to compensate specified losses, liability, or damages incurred by another individual.
An insurer is frequently an insurance company and is also known as an underwriter. 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 in·ten·tion·al
1. Done deliberately; intended: an intentional slight. See Synonyms at voluntary.
2. Having to do with intention. 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 neg·li·gent
1. Characterized by or inclined to neglect, especially habitually.
2. Characterized by careless ease or informality; casual.
3. Law Guilty of negligence. counseled a patient regarding firearms might choose to 1) defend or settle the action; 2) defend the action with a reservation of rights reservation of rights Health insurance A term referring to a situation arising when there is a question as to whether a medical service is covered; usually the insurer is obliged to defend a claim while a coverage issue between insurer and policyholder is being resolved (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 Reimbursement
Payment made to someone for out-of-pocket expenses has incurred. later if facts prove it to be correct. (9); 3) seek a declaratory judgment declaratory judgment
In law, a judgment merely declaring a right or establishing the legal status or interpretation of a law or instrument. It is binding but is distinguished from other judgments or court opinions in that it includes no executive element (an order that 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 declaratory relief n. a judge's determination (called a "declaratory judgment") of the parties' rights under a contract or a statute often requested (prayed) for information in a lawsuit over a contract. 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.
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 Insure can mean:
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)
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 con·found
tr.v. con·found·ed, con·found·ing, con·founds
1. To cause to become confused or perplexed. See Synonyms at puzzle.
2. 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 malpractice, failure to provide professional services with the skill usually exhibited by responsible and careful members of the profession, resulting in injury, loss, or damage to the party contracting those services. 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 In Equity practice, the party who answers a bill or other proceeding in equity. The party against whom an appeal or motion, an application for a court order, is instituted and who is required to answer in order to protect his or her interests. wrote, "Conduct by a patient that was directed by the advice of a physician within the framework of a physician-patient relationship physician-patient relationship Medical malpractice A formal or inferred relationship between a physician and a Pt, which is established once the physician assumes or undertakes the medical care or treatment of a Pt; the establishment of a PPR is 'automatic' in 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 (job) professional services - A department of a supplier providing consultancy and programming manpower for the supplier's products. 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 Compel - COMpute ParallEL the physician to prevail in a declaratory judgment action before providing such a defense, or seek reimbursement from the physician post hoc post hoc
adv. & adj.
In or of the form of an argument in which one event is asserted to be the cause of a later event simply by virtue of having happened earlier: 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 tex·tu·al
Of, relating to, or conforming to a text.
textu·al·ly adv. 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 cor·re·late
v. cor·re·lat·ed, cor·re·lat·ing, cor·re·lates
1. To put or bring into causal, complementary, parallel, or reciprocal relation.
2. 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.
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 acknowledgment, in law, formal declaration or admission by a person who executed an instrument (e.g., a will or a deed) that the instrument is his. The acknowledgment is made before a court, a notary public, or any other authorized person.
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.
(1.) Cassel CK, Nelson EA, Smith TW, Schwab CW, Barlow bar·low
An inexpensive, one- or two-bladed pocketknife.
[After Barlow, the family name of its makers, two brothers in Sheffield, England.] B, Gary NE. Internists' and surgeons' attitudes toward guns and firearm injury prevention. Ann Intern intern /in·tern/ (in´tern) a medical graduate serving in a hospital preparatory to being licensed to practice medicine.
in·tern or in·terne
n. Med 1998;128:224-230.
(2.) Davidoff F. Refraining gun violence. Ann Intern Med 1998;128:234235 (editorial).
(3.) American College of Physicians The American College of Physicians (ACP) is a national organization of doctors of internal medicine (internists), physicians who specialize in the prevention, detection and treatment of illnesses in adults. . Firearm injury prevention. Ann Intern Med 1998;128:236-241.
(4.) American Medical Association American Medical Association (AMA), professional physicians' organization (founded 1847). Its goals are to protect the interests of American physicians, advance public health, and support the growth of medical science. . 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 St. Paul
as a missionary he fearlessly confronts the “perils of waters, of robbers, in the city, in the wilderness.” [N.T.: II Cor. 11:26]
See : Bravery , MN, West, 1991.
(8.) Rice WE. Insurance contracts and judicial discord Discord
See also Confusion.
demon of discord. [Occultism: Jobes, 93]
discord, apple of
caused conflict among goddesses; Trojan War ultimate result. [Gk. Myth. over whether liability insurers must defend insureds' allegedly intentional and immoral conduct: A historical and empirical review of federal and state courts' declaratory DECLARATORY. Something which explains, or ascertains what before was uncertain or doubtful; as a declaratory statute, which is one passed to put an end to a doubt as to what the law is, and which declares what it is, and what it has been. 1 Bl. Com. 86. judgments--1900-1997 Am U L Rev 1998;47:1131, 1146.
(9.) Hecla Mining Co v New Hampshire New Hampshire, one of the New England states of the NE United States. It is bordered by Massachusetts (S), Vermont, with the Connecticut R. forming the boundary (W), the Canadian province of Quebec (NW), and Maine and a short strip of the Atlantic Ocean (E). 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 medical ethics The moral construct focused on the medical issues of individual Pts and medical practitioners. See Baby Doe, Brouphy, Conran, Jefferson, Kevorkian, Quinlan, Roe v Wade, Webster decision. and Humanities, Department of Internal Medicine, University of South Florida College of Medicine As of Fall 2006, there were 477 students in the M.D. program; 78 students in the M.S. and 83 students in the Ph.D. program in the School of Basic Biomedical Sciences; and 55 students in the DPT program in the School of Physical Therapy. , and the Spinal Cord Injury Spinal Cord Injury Definition
Spinal cord injury is damage to the spinal cord that causes loss of sensation and motor control.
Approximately 10,000 new spinal cord injuries (SCIs) occur each year in the United States. Service, James A. Haley James Andrew Haley (January 4, 1899 - August 6, 1981) was a U.S. Representative from Florida.
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