Risk Management

Providing Care When Disaster Strikes

By Kimberly Wynkoop

OMIC Legal Counsel

Digest, Winter 2010

When disaster strikes, many physicians want to offer their skill to aid the victims in their recovery. The last thing a physician pursuing such an altruistic mission may consider is claims arising from this care. Nevertheless, prudent physicians will want assurance that what they are undertaking will not expose them to uninsured losses. OMIC would like to explain how its policy covers its insureds for claims that might result from such volunteer services.

Practicing Outside Coverage Area

When insureds look to provide health care outside of the united States, they should be aware of the Coverage Territory provision in their policy (Section VIII.22). It states that, in order for coverage to apply, the insured’s principal place of practice must be the same as that specified in his or her application for insurance. This does not prevent insureds from occasionally practicing outside of this area, it just ensures that they are underwritten and rated appropriately for the majority of their practice. As long as this is the case, coverage will apply to professional services incidents that take place anywhere in the world. However, in order for OMIC to cover the claim,it must be brought within the 50 United States or Washington DC.

Most, if not all, medical professional liability policies contain this language limiting where claims may be brought. This is because insurers are generally unfamiliar with the laws and court systems outside of the U.S. This, coupled with the distance and language barriers posed, makes it extremely difficult to controland manage claims and to find appropriate personnel to oversee and adequately defend them. In addition, the insurer may not legally be permitted to operate in these foreign countries.1 (Note that OMIC’s policy does not cover claims brought in any U.S. territories or possessions. Although the law is not settled on the issue, it appears that risk retention groups are not permitted to operate outside of the 50 states and DC. Additionally, most of the other concerns noted above also apply to these territories and possessions.)

Good Samaritan and Bona Fide Emergency Treatment

In order for coverage to apply, the rest of the policy provisions must also be adhered to. This includes practicing within the scope of one’s licensure and within the ordinary and customary scope of practice of ophthalmologists. OMIC considers ophthalmic or non- ophthalmic treatment provided as a Good Samaritan or in a bona fide emergency to be within the ordinary and customary scope of practice of ophthalmologists. This means providing emergency medical services to an injured person at the scene of an accident without expecting to receive compensation from the injured person for the service. Regarding licensure, insureds will want to check the licensure provisions and requirements in both their state of practice and the location where they will be providing volunteer services.

Responding to emergency medical needs in a disaster zone immediately after the disaster has struck would be considered a bona fide emergency or “Good Samaritan” situation. This could occur, for example, in treating victims and evacuees for non-ophthalmic injuries in the direct aftermath of an earthquake, hurricane, or terrorist incident. Attending to victims’ and evacuees’ non-immediate medical needs after the disaster would not be considered occurring during a bona fide emergency. Therefore, OMIC would cover an ophthalmologist for ophthalmology-related treatment only in this scenario.

If an insured plans to assist in a disaster-stricken or underserved area on a volunteer basis through an organization, the insured should check with that organization, as it might also provide or give access to professional liability coverage for these services. Since the aim of these organizations may be to provide medical care in non-u.S. territories, and they may anticipate that specialists could provide care outside of their specialty, they might offer or provide access to coverage for claims beyond the scope of your OMIC policy.

Documentation of Care

From a risk management perspective, OMIC advises that insureds maintain, to the degree possible, at least basic documentation of any treatments performed, including identifying information of the patient and a short narrative summary of the diagnosed injury/condition and specific medical care delivered by the insured. For easy retrieval, such notes should be arranged alphabetically in a file labeled “Care Provided to [Incident] Disaster Victims.” If resources are available, since it is likely that patients will not be seen again by the insured, the insured should give patients a copy of the visit note, with treatment and follow-up recommendations. For more risk management advice, call (800) 562-6642, ext. 641.

If you plan on spending any significant amount of time providing services outside of your typical practice territory, please inform your OMIC underwriter before doing so.

1. Bregman RA and Gibson JP. “Professional Liability Insurance.” International Risk Management Institute, INc. (Dallas). 2009; Sections VII.B.14 and XXII.E.11.