Federal and state prisons, as well as county jails, often procure medical services for prisoners from outside, third-party physicians. Although admittedly filling a societal need, trouble can lurk for physicians providing prison medicine if the physician does not have an appropriate agreement in place for professional liability coverage since these physicians are often named in prisoner lawsuits relating to the involvement of the physicians in the provision of medical services. For example:
A prisoner alleging negligence in the treatment of the patient's lower right leg injury files a lawsuit. The patient's complaint claims that an external fixator was replaced with a cast two months after the initial injury. The involved orthopedic physician suggested further surgery, but prison health personnel thought the leg could be managed with a brace. It was claimed that the brace was not received for another two months and then it caused damage to the patient's leg that was ignored by prison health personnel. While using crutches the following month, the patient fell on steps causing further injury. In a subsequently filed pro se (no plaintiff's attorney) action, the patient alleged a violation of the patient's civil rights against the prison officials, as well as the orthopedic surgeon, for failing to provide the patient with care. The complaint included a claim for punitive damages. Although the orthopedic surgeon recommended further surgery in the early stages, the claim against the orthopedic surgeon alleged that the physician should have been more of an advocate on the patient's behalf. The claim was ultimately dismissed, but there were significant expenses incurred by the physician relating to the dismissal of the claim.
Whether filed pro se or by an attorney, the foregoing type of claim is not atypical for those providing prison medicine. The underlying facts will differ, but it is not uncommon for these prisoner claims to include violations of state and federal civil rights; violations of state and federal constitutional rights; violations of state and federal laws, statutes, and regulations, such as the Americans With Disabilities Act; intentional and negligent torts not directly related to provision of medical services, such as intentional infliction of emotional distress based upon alleged willful or malicious acts; fraudulent and deceptive trade practices based upon alleged concerted action with prison or jail officials; and records tampering.
Physicians must be aware that the afore-mentioned allegations are typically not covered under professional liability policies, whether through PPIX or other mainstream professional liability insurance carriers. Typical provisions exclude coverage for: injury arising out of criminal or intentional, willful, or malicious acts; violations of any civil rights law, statute or regulation; and, damages arising out of any contract to which the physician is a party or third-party. Certain definitions contained within typical professional liability policies may also serve to exclude coverage as to the allegations. For example, a "claim" is typically defined as involving "bodily injury" arising out of "professional services." The afore-mentioned allegations of civil rights violations, other than those alleging actual physical injury, do not involve bodily injury and so would not be covered under a typical professional liability policy.
Most prisoner lawsuits also request damages beyond compensatory damages, including punitive damages, attorney's fees, and court costs. Typical professional liability policies exclude all but compensatory damages. Additionally, public policy in Pennsylvania prohibits payment by an insurer of punitive damages awarded directly against an insured physician.
The impact of these allegations and requests for damages can be substantial to a physician. Any award based upon allegations or a request for damages not covered by a professional liability policy can expose a physician's personal assets. Even if there is no award against the physician, personal counsel may have to be retained at the expense of the physician to advise and defend against those allegations. These expenses can be compounded by the judicial system should there be a reluctance by the court to dismiss the claim at an early stage.
Practice tip: Defending against civil rights violations is not a common area of physician knowledge. It is common for those operating prisons and jails. Why not keep the coverage for occurrences taking place as part of the prison health program with the experts at defending against such claims? For those physicians providing medical services to prisoners through a contract with a prison or jail, be sure to negotiate a contract which provides that the institution will provide coverage for any claims that arise pursuant to the contract, including those claims alleging violations of federal, state and/or local constitution(s), law(s), statute(s), regulation(s) and/or ordinance(s). It is best if both indemnity and defense coverage is provided, but it should be an absolute minimal requirement that defense coverage be afforded to the physician.
Steve is the author of a popular magazine and has a very good knowledge in the areas Medical practice risk management. He wrote many articles for Medical malpractice insurance companies
