Verdicts

No Insurance Coverage for Clerical Worker's 'Professional Services'

A Florida trial court properly found that an insurer was required to defend against a negligence claim brought against a doctor's employee but not to indemnify her, as the professional services exclusion of the doctor's business owner's policy excluded coverage for services performed by the employee in filing, and making the doctor aware of, lab reports. Estate of Tinervin v. Nationwide Mut. Ins. Co., — So.3d —-, 2009 WL 4060905 (Fla.App. 4 Dist., 11/25/09).

The deceased, an obese child with high blood pressure, sought the help of a pediatrician whose wife was employed in his medical office. Her duties included the filing of lab reports in the patient's chart, and providing them to the doctor for review. An outside lab performed tests on the decedent, revealing abnormal values. In February 2005, the lab mailed the abnormal test results to the doctor, who testified that his office usually receives reports within one or two days after blood is drawn. However, the first time he remembered seeing the decedent's lab results was three months later, in May, 2005. The decedent died on June 2, 2005. The doctor opined that if he had seen the lab report earlier, he would have taken different actions in his treatment of the decedent.

The plaintiff sued the doctor for medical malpractice and his employee/wife for general negligence. The doctor and his employee requested coverage under the insurer's business owner's policy, but the insurer refused to defend or indemnify the doctor and his employee based on the exclusion for injuries arising from professional services. That exclusion provided that the insurer would not defend employees nor indemnify them when they injured someone in the course of performing professional health care services. The insurer claimed that misfiling the lab results fell within the professional services exclusion because it was an “intricate part” of the medical services the doctor rendered. The plaintiff countered that the employee's negligence was not excluded because her services were clerical, as she had no professional responsibility to read or to interpret the lab reports.

The insurer refused to defend the wrongful death action. The doctor and his employee entered into a $5 million consent judgment with the plaintiff. As part of the settlement, they assigned their coverage claims to the plaintiff. The plaintiff then brought this action against the insurer alleging that the insurer breached its duties to defend and indemnify the employee.

The trial court focused its inquiry on whether the employee provided “professional services” within the meaning of the policy's exclusion. The plaintiff argued that the employee merely provided clerical services, although she was a trained nurse who had worked as such in the Philippines (though she was not licensed in Florida). The insurer pointed out that the employee took vital signs and wrote them in the patient's chart, and prioritized test results so that the most serious results were on the top. It also argued that the employee acted as a medical assistant because she operated medical equipment and performed functions that were the tasks of a professional medical assistant under section 458.3485(1), Florida Statutes (2007). That section defines a medical assistant as “a professional multiskilled person dedicated to assisting in all aspects of medical practice under the direct supervision and responsibility of a physician. This practitioner assists with patient care management, executes administrative and clinical procedures, and often performs managerial and supervisory functions. Competence in the field also requires that a medical assistant adhere to ethical and legal standards of professional practice, recognize and respond to emergencies, and demonstrate professional characteristics.”

The trial court concluded the insurer had a duty to defend the wrongful death claims based on the allegation that the employee was a non-professional employee. However, it also found the insurer had no duty to indemnify because the professional services exclusion applied. That was because the alleged negligence was either the failure of the doctor to review the results or the failure of the employee to furnish the report to him. Either failure culminated in the doctor's professional judgment that resulted in the decedent's death. The trial court said it was not “inclined to 'unbundle' the acts which are part of providing medical services and put one act under a legal microscope.”

The appellate court agreed, finding that “the employee's acts were causally connected to the professional services rendered by the doctor. The policy clearly excludes medical services, and the employee's duties were an 'intricate part' of the medical services provided by the doctor.”

Baby Provided No Services

A New York court held that the mother of a deceased baby could not state a claim for loss of the child's services because the child, at the time of its death, was too young to have been able to provide services. Charles v. Suvannavejh, 18660/2005 (Sup. Ct., Bronx County (NY) 11/17/09).

The plaintiff, mother of a baby who was either stillborn or died soon after birth, sued for medical malpractice and wrongful death. Among her claims was one for loss of the child's services. The court, on defendants' motion, granted dismissal of this cause of action, holding that although a claim for loss of a child's services during the child's life may be viable when a child attains an age and capability to provide services, the short life span of the plaintiff's child did not allow for such a claim.

No Insurance Coverage for Clerical Worker's 'Professional Services'

A Florida trial court properly found that an insurer was required to defend against a negligence claim brought against a doctor's employee but not to indemnify her, as the professional services exclusion of the doctor's business owner's policy excluded coverage for services performed by the employee in filing, and making the doctor aware of, lab reports. Estate of Tinervin v. Nationwide Mut. Ins. Co., — So.3d —-, 2009 WL 4060905 (Fla.App. 4 Dist., 11/25/09).

The deceased, an obese child with high blood pressure, sought the help of a pediatrician whose wife was employed in his medical office. Her duties included the filing of lab reports in the patient's chart, and providing them to the doctor for review. An outside lab performed tests on the decedent, revealing abnormal values. In February 2005, the lab mailed the abnormal test results to the doctor, who testified that his office usually receives reports within one or two days after blood is drawn. However, the first time he remembered seeing the decedent's lab results was three months later, in May, 2005. The decedent died on June 2, 2005. The doctor opined that if he had seen the lab report earlier, he would have taken different actions in his treatment of the decedent.

The plaintiff sued the doctor for medical malpractice and his employee/wife for general negligence. The doctor and his employee requested coverage under the insurer's business owner's policy, but the insurer refused to defend or indemnify the doctor and his employee based on the exclusion for injuries arising from professional services. That exclusion provided that the insurer would not defend employees nor indemnify them when they injured someone in the course of performing professional health care services. The insurer claimed that misfiling the lab results fell within the professional services exclusion because it was an “intricate part” of the medical services the doctor rendered. The plaintiff countered that the employee's negligence was not excluded because her services were clerical, as she had no professional responsibility to read or to interpret the lab reports.

The insurer refused to defend the wrongful death action. The doctor and his employee entered into a $5 million consent judgment with the plaintiff. As part of the settlement, they assigned their coverage claims to the plaintiff. The plaintiff then brought this action against the insurer alleging that the insurer breached its duties to defend and indemnify the employee.

The trial court focused its inquiry on whether the employee provided “professional services” within the meaning of the policy's exclusion. The plaintiff argued that the employee merely provided clerical services, although she was a trained nurse who had worked as such in the Philippines (though she was not licensed in Florida). The insurer pointed out that the employee took vital signs and wrote them in the patient's chart, and prioritized test results so that the most serious results were on the top. It also argued that the employee acted as a medical assistant because she operated medical equipment and performed functions that were the tasks of a professional medical assistant under section 458.3485(1), Florida Statutes (2007). That section defines a medical assistant as “a professional multiskilled person dedicated to assisting in all aspects of medical practice under the direct supervision and responsibility of a physician. This practitioner assists with patient care management, executes administrative and clinical procedures, and often performs managerial and supervisory functions. Competence in the field also requires that a medical assistant adhere to ethical and legal standards of professional practice, recognize and respond to emergencies, and demonstrate professional characteristics.”

The trial court concluded the insurer had a duty to defend the wrongful death claims based on the allegation that the employee was a non-professional employee. However, it also found the insurer had no duty to indemnify because the professional services exclusion applied. That was because the alleged negligence was either the failure of the doctor to review the results or the failure of the employee to furnish the report to him. Either failure culminated in the doctor's professional judgment that resulted in the decedent's death. The trial court said it was not “inclined to 'unbundle' the acts which are part of providing medical services and put one act under a legal microscope.”

The appellate court agreed, finding that “the employee's acts were causally connected to the professional services rendered by the doctor. The policy clearly excludes medical services, and the employee's duties were an 'intricate part' of the medical services provided by the doctor.”

Baby Provided No Services

A New York court held that the mother of a deceased baby could not state a claim for loss of the child's services because the child, at the time of its death, was too young to have been able to provide services. Charles v. Suvannavejh, 18660/2005 (Sup. Ct., Bronx County (NY) 11/17/09).

The plaintiff, mother of a baby who was either stillborn or died soon after birth, sued for medical malpractice and wrongful death. Among her claims was one for loss of the child's services. The court, on defendants' motion, granted dismissal of this cause of action, holding that although a claim for loss of a child's services during the child's life may be viable when a child attains an age and capability to provide services, the short life span of the plaintiff's child did not allow for such a claim.