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Is the hospital I resigned on good terms from years ago still responsible to legally defend me against charges in a malpractice case?

Wednesday April 30, 2014
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Question:

Dear Nancy,

I resigned on good terms many years ago from a hospital but recently have been named as a defendant in a malpractice case. Is the hospital still responsible to legally defend me?

Luis



Dear Nancy replies:

Dear Luis,

It is difficult to respond to your question without knowing the details of the professional liability insurance policy that covered you when you were an employee at the facility. It is assumed that you relied on your employer for your professional coverage and that you did not have your own professional liability policy. Some general comments can be made.

More likely than not, your employer's insurance coverage is for employees only, and since you were no longer employed when the lawsuit was filed, there is no duty of the employer's insurance company to defend or represent you. This could change, however, if the insurance policy was an occurrence policy, which would cover former employees if they were covered and employed at the time when the incident, which is the subject of the suit, took place. The key with occurrence policies is when the incident arose and if there was coverage,, not when the suit was filed.

The allegations against you and the former employer may result in liability for both of you if the allegations are proven, so in some ways, you and your former employer may have the same interests in a favorable verdict. If, however, the employer can allege you were functioning out of the scope of your employment, or performed negligent patient care after being disciplined and retrained it might attempt to place the blame for the patient injury solely on you.

You should consult with a nurse attorney or other attorney in your state who does defense work for healthcare providers in malpractice suits. The attorney can advise you about your status in this suit, can review the complaint and appearances of attorneys filed with the court, and, if need be, defend you in the suit. You should seek the consultation as soon as possible.


Cordially,
Nancy




Nancy J. Brent, RN, MS, JD, is an attorney in private practice in Wilmette, Ill. This information is for educational purposes only and is not intended as legal or any other advice. The reader is encouraged to seek the advice of an attorney or other professional when an opinion is needed.