NY: Nurse not covered Dr.-employer's policy: nurses should have their own professional ins.
CASE FACTS: On April 3, 2007, the Supreme Court of New York entered a declaratory judgment involving a nurse's right to coverage under her physician-employer's professional liability policy. In an underlying suit the court denied the nurse's right to coverage under her employer's policy. The motion court ruled that the nurse was covered under her employer's policy and granted the nurse's motion The plaintiffs in the underlying action argued, inter alia, that the Nurse Sharona Cohen, who was employed by Dr. Andrew Gardner, negligently rendered genetic counseling services. Nurse Cohen alleged that she rendered the genetic counseling services as an employee of Dr. Gardner. The policy in question covered the physician himself (referred to in the policy as "you") and the physician's solo professional service corporation, the physician's administrator, qualified temporary substitute physician, and estate. In addition, the policy covered "Vicarious Liability Claims," defined as "liability arising from claims made against you because of Professional Services which were provided (or should have been provided) for whose conduct you are legally responsible." The policy warned, however: "Be sure you understand that you are not covered under this policy for the acts of certain people in your employment for whose conduct you are responsible UNLESS THEY ARE INSURED UNDER A SEPARATE PROFESSIONAL LIABILITY INSURANCE POLICY," in which event the insurer would pay the excess of the vicarious liability claim over the coverage provided by the other policy. The exclusions section of the policy lists such "certain people": "Employed Physicians," physician's assistants, specialist's assistants, nurses providing anesthesia services, nurse practitioners and midwives employed by the physician. The motion court agreed, that the policy was ambiguous as to whether it covered employees of the physician other than the ones listed in the exclusions section. The motion court held if it generally excluded employees, it would be to render the "vicarious liability provision "meaningless...."
COURT'S OPINION: The Supreme Court of New York, Appellate Division, disagreed with the motions court and found, inter alia, that there was no evidence whatsoever that Nurse Cohen or Dr. Gardner were intended to be covered where the employee was neither named or covered by endorsement.
Editor's Note: This represents a classic illustration as to why every nurse should have her own professional liability insurance. It is relatively inexpensive, and no nurse should practice without it! Cohen v. Medical Malpractice Ins. Pool of N. Y. State, 2008-NY-114.2008 (11/12/2008) -NY (2008).
A. David Tammelleo JD Editor & Publisher
Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who Who in American Law, Who's Who in America and Who's Who in the World