There is no written contract, and the insured physician and substitute are not part of an Association, Corporation, or Partnership. There is only a verbal mutual agreement to cover for the insured physician during those special occasions.

How can the vicarious liability of our insured physician be covered if he is sued in a malpractice claim for a medical incident arising out of the services rendered by the covering or substitute physician? Would coverage A—Individual Professional Liability—under his policy provide defense and coverage? Would it be necessary to purchase coverage B—Insuring Agreement Partnership, Association, or Corporation Professional Liability to cover his exposure?

Puerto Rico Subscriber

A

In reviewing the ISO professional liability form for physicians, it appears that it may be difficult to cover a physician's vicarious liability in the situation you describe. That form promises to cover injuries that arise out of a “medical incident.” It then defines “medical incident” as: “Arising out of the providing of or failure to provide professional medical or dental services by: (1) The insured; or (2) Any person acting under the personal direction, control or supervision of the insured. Injuries arising out of the insured's serving as a member of a formal accreditation, standards review or equivalent professional board or committee are also covered.

In the case you describe, the insured physician did not provide the service. And, the substitute physician does not appear to be “acting under the personal direction, control or supervision of the insured.”

Purchasing coverage B might be a solution. If the insured is organized as one of the described business entities, then the entity is covered for any injury “caused by any person for whose acts or omissions the [named insured] is legally responsible.” But, a court would still have to find that the named insured was “legally responsible” for the acts of the substitute physician.

Many independently filed forms will provide coverage for a physician's vicarious liability in instances where there is a lengthy absence (sometimes referred to as a locum tenens), as in the case of maternity or family leave, but rarely provide this coverage on a “day here, day there” basis. You might wish to contact the insurer to obtain input.