Issues in Physician Coverage for Prisoner-Instituted Lawsuits

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Both federal and state prisons as well as county jails often contract for medical services from third-party doctors. While providing medical care for prisoners is a necessary part of society, it can be dangerous for doctors who provide this service. This is because these doctors are often involved in lawsuits against prisoners for their involvement in providing medical services. Take this example:

A prisoner files a lawsuit alleging negligence in the treatment for the lower right leg injury to which the patient was subject. Two months after the injury, the patient complained that an external fixator had been replaced with a cast. Although the orthopedic surgeon suggested additional surgery, prison staff believed that a brace could be used to manage the patient’s leg. Prison health staff ignored the fact that the brace had not been received for two more months. It then caused severe damage to the patient’s left leg. The patient was using crutches for the next month and fell on steps, causing more injury. The patient filed a pro se (no plaintiff’s attorney) action against the prison officials and the orthopedic surgeon alleging a violation of his civil rights. The patient also filed a claim for punitive damage. The orthopedic surgeon suggested further surgery at the beginning stages. However, the lawsuit against the orthopedic doctor claimed that the surgeon should have been more active in advocating for the patient’s rights. Although the claim was eventually dismissed, there were substantial expenses incurred by physician to support the dismissal.

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The above type of claim can be filed by either an attorney or pro se. It is not unusual for prison doctors to file such claims. Although the facts of these claims will vary, it is common for them to include violations by state and federal civil right; violations state and Federal constitutional rights; violations state and Federal laws, statutes and regulations such as the Americans With Disabilities Act. Intentional and negligent torts that are not directly related to providing medical services such as intentional infliction or emotional distress based on alleged willful and malicious acts; fraudulent or deceptive trade practices based on alleged concerted actions with prison or jail officials; records tampering

The aforementioned allegations are not typically covered by professional liability policies. This applies whether the policy is through PPIX, or any other mainstream professional liability insurance carrier. The typical provisions do not cover injury that results from criminal, intentional, willful, and malicious acts, violations of any civil right law, statute, or regulation, as well as damages arising from any contract to which the doctor is a party. Some definitions found in typical professional liability policies might also exclude coverage for the allegations. A “claim” can be defined as “bodily injury” that results from “professional services.” Other than the allegations of actual bodily injury, the aforementioned civil rights violations are not covered by professional liability policies.

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Many prisoner lawsuits request damages that go beyond compensatory damages. This includes punitive damages and attorney’s fees. All but compensatory damages are excluded from most professional liability policies. Public policy in Pennsylvania also prohibits the payment of punitive damages directly against insured physicians by insurers.

These allegations and claims can have a significant impact on a physician’s ability to collect damages. A physician’s personal assets could be exposed if a doctor is awarded based on allegations or a request to recover damages that are not covered under a professional liability policy. Even if the doctor is not awarded, it may be necessary to retain personal counsel at his expense to defend and advise against these allegations. If the court refuses to dismiss the claim early, these expenses may be increased by the judicial system.

Practice tip: Protecting civil rights violations is not an area of common knowledge for physicians. This is a common practice for jail and prison staff. It is common for jail and prison staff to provide coverage. If you are a physician who provides medical services to prisoners via a contract with prisons or jails, make sure that you negotiate a contract that guarantees that the institution will cover any claims that may arise under the contract. This includes claims alleging violations federal, state, and/or local constitutions, laws, statutes, regulation(s), and/or ordinance(s). While it is preferable to provide both indemnity as well as defense coverage, it is not necessary that the physician be covered.

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