I don’t have any statistic on this this.  But, anecdotally, reading a lot of cases, I would say that those in the medical field, seeking coverage for sexual misconduct, in the course of treating a patient, have an uphill battle.  Sexual misconduct exclusions are usually broad and, in general, courts seem disinclined to reward perpetrators, of such conduct, with the luxury of someone else paying for its consequences.

But, in NCMIC Insurance Co. v. Smith, No. 18-533 (S.D. Ohio May 30, 2019), the Ohio federal court was not prepared to rule out coverage, under a medical malpractice policy, for a chiropractor who allegedly sexually assaulted over 40 female patients during the course of chiropractic treatment.  The chiropractor, Smith, facing a class action, sought coverage from NCMIC Insurance Co. under a Professional Liability Policy. 

NCMIC Insurance Co. filed an action seeking a declaratory judgment that it had no obligation to provide coverage to Smith, for defense or any liability, in connection with the suit.

The policy at issue contained the type of insuring agreement provisions that you would expect to see in a medical malpractice liability policy.  This was followed by various exclusions, including one for “[s]exual impropriety, sexual intimacy, sexual assault, sexual harassment or any other similarly defined act.”

Addressing a motion for summary judgment, the court concluded that the intentional tort claims were not a “negligent omission, act or error” to trigger the insuring agreement.  In addition, the intentional tort claims were excluded from coverage by various exclusions, including the sexual impropriety, sexual assault, etc. exclusion.  Not surprisingly, the court stated: “[T]he actions underlying the claims of assault and battery are rooted in sexual misconduct—including allegations that Defendant Smith exposed patients’ breasts, touched their breasts, and placed his genitals in contact with patients while performing chiropractic procedures.  Consequently, the Court agrees with Plaintiff that the underlying complaints unquestionably allege a pattern of sexual assault and impropriety, therefore triggering exclusion C.”

The court next turned to the negligence claims.  Here it was a different story.  The court focused on the claim for failure to obtain informed consent and concluded that the negligence requirement, to trigger the insuring agreement, was satisfied.  The court stated that “Defendant Smith ‘failed to disclose ... [the] material risks and dangers inherent in the procedures [Defendant] Smith proposed to perform on her.  Specifically, [he] failed to disclose to [Defendant Doe] the risk that the treatment ran the risk of [her] breasts being touched or exposed, as well as the risk that her hand would be pressed against his genitals.’  Defendant Homer similarly alleges that Defendant Smith fell below the standard of reasonable chiropractic care by failing ‘to disclose to [Defendant Homer] the risk that her breasts would be touched or exposed, as well as the risk that her hand would be in contact with his penis.’  Construing the evidence in the light most favorable to the nonmovants, these alleged facts support a cause of action that Defendant Smith negligently failed to obtain informed consent concerning ‘inadverten[t] or accidenta[l] touch[ing]’ during treatment.”

Turning to the potential duty to indemnify, here too the court could not rule out the possibility of the chiropractor having acted negligently, despite his conviction for numerous counts of sexual imposition: “[A] genuine dispute of material fact exists as to whether Defendant Smith committed intentional torts against Defendants Doe and Homer. [NCMIC] states, ‘it is clear from [Defendant] Smith’s conviction for 66 counts of sexual imposition as well as the nearly identical allegations made by [Defendants] Doe and Homer against [Defendant] Smith in their respective complaints that [Defendant] Smith committed unauthorized touching.’  Yet Defendant Smith avers that ‘[a]ll physical contact [he] made with [Defendant Doe] was either for the purpose of providing chiropractic treatment or incidental to the provision of chiropractic treatment.’  Defendant Smith denies that he intentionally touched Defendant Doe’s breasts, or intentionally caused his genitals to come in contact with her hand.  At this stage in the litigation, no jury has resolved whether Defendant Smith acted intentionally, negligently, both, or neither.  Because an insurer’s duty to indemnify is fact dependent, the Court cannot conclude that [NCMIC] has no duty to indemnify Defendant Smith as a matter of law.”

For plaintiffs seeking to plead into coverage for sexual assault, alleged in the course of medical treatment (or, at least a defense for the insured, opening the door to possible coverage), the Rx from Smith is to allege that the medical provider failed to get informed consent that he or she could come into contact with the patient’s private areas. 

I suspect that not every court would buy into this.  Some courts ignore labels on complaints and apply a common sense approach to what’s really at issue.  That argument was rejected here.  And, presumably, not every type of medical procedure, where sexual impropriety allegedly took place in the process, could give rise to an allegation that, as part of the procedure, a patient’s private areas could come into contact with the medical provider.  Thus, the medical provider should have obtained informed consent.  Of course, even if such a lack of informed consent claim is groundless, well, you know what a groundless claim means for purposes of duty to defend…