Policyholder Services

Liability and coverage for patient falls

KIMBERLY WYNKOOP, OMIC Senior Legal Counsel

Lawsuits and claims arising from patient falls present an interesting issue for the court system and insurance companies: Was the fall due to alleged professional liability or premises liability? This may appear to be a question of semantics, but the answer has important consequences for both plaintiffs and defendants.

Professional liability (PL), or medical malpractice, is a type of liability for negligence that involves a breach of the standard of care in the performance of healthcare services. Premises liability is a type of general liability (GL) for negligence that occurs when an owner or possessor of property does not adequately protect people on the property from hazards on the premises.

Courts across the United States have analyzed this issue and come up with different ways to determine if a claim is a PL or GL claim. Some look at whether the defendant’s conduct required the exercise of professional expertise, skill, or judgment. However, others reject this line of reasoning stating that providers perform both highly skilled and mundane tasks when rendering healthcare services, and that a breach when performing any such tasks would be considered professional liability. Others focus on the responsibility of providers to offer a safe environment for diagnosis and treatment; if there are unsafe conditions that cause injury to a patient due to the provider’s negligence, it is professional liability.

The ultimate outcome is often specific to the facts of the case. One consideration is whether the patient was in the waiting room or in the office treatment area or had already been admitted to the ambulatory surgery center (ASC). If the patient fell in the waiting room, it is less likely a court will consider a claim one of professional liability.

Another consideration is whether something on the premises broke or malfunctioned versus whether the provider or employee failed to supervise or secure the patient; if the latter, professional liability is more likely.

Why does it matter if a claim is filed as a PL or GL claim? First, most if not all states have different laws and procedures for malpractice and premises claims. For instance, a PL suit may first need to be vetted by a medical review panel. The statute of limitations for bringing the suit may also differ and, if so, is generally shorter for PL claims. Further, in many states, the amount of medical malpractice damages that can be recovered is capped, while general liability awards have no limits. The type of suit also may determine what type of discovery occurs and if expert witness testimony is required. Finally, it will determine what insurance is available to cover the claim and by which insurer.

Limited office premises liability coverage in OMIC policy

Professional liability policies generally do not cover injury due to unsafe conditions or, more generally, injury that does not directly result from an act or omission in the provision of healthcare services, such as a failure to diagnose or an error made in surgical treatment. General liability policies, on the other hand, often specifically exclude injury sustained during the delivery of healthcare. Some carriers, like OMIC, include limited office premises liability insurance in their professional liability policies. In OMIC’s case, we offer $50,000 in premises liability coverage. However, if the insured has GL coverage for a premises liability claim, OMIC’s limited coverage is not available. OMIC’s $50,000 is a safeguard in the unlikely event that premises liability coverage is not available elsewhere; but when it is, the carrier specializing in that line of business is in the best position to defend and pay the claim.

Since it is not always clear whether the legal basis for a claim is professional or general negligence, OMIC often must coordinate with our insureds’ GL carriers in fall-related claims. To date, GL carriers have paid settlements in nine OMIC-reported claims. In three settlements, OMIC and the GL carrier paid equal amounts. In the following claim, the GL carrier paid only a small portion of the settlement.

A staff member escorted an 82-year-old woman with a history of seven falls to the front desk after her exam in the office. Without warning, the patient fell face first in a tiled hallway. Most of her injuries involved her teeth and bridgework. OMIC paid $21,000 and the GL carrier paid $5,000 for dental work.

In five claims, only the GL carrier paid. In one such claim, an 83-year-old patient was taken by an ASC staff member to her car in a wheelchair after cataract surgery. The patient fell when moving from the wheelchair into the car and broke some ribs. The plaintiff attorney filed the claim as a GL case, alleging that the wheelchair was defective. When no problem with the wheelchair was discovered, the GL carrier denied the claim, asserting that is was a PL claim involving negligent supervision. OMIC’s defense attorneys countered that no special skill or knowledge was required to push a patient in a wheelchair to the patient’s car and that, therefore, this was a case of general, not professional, liability. The GL carrier ultimately settled the claim for $205,000.

Notice: Because the Kansas Health Care Stabilization Fund and the Nebraska Excess Liability Fund each require health care providers to maintain individual limits of liability and prohibit the sharing of limits, office premises liability coverage is not available in Kansas or Nebraska. The policy is modified to this effect via Endorsement OMC160 – Kansas Amendatory Endorsement and OMC158 – Nebraska Amendatory Endorsement.