When is Misconduct Professional?

Disputes often arise under both general liability and professional liability policies as to whether certain types of misconduct are professional. Typically, under Texas law, conduct is considered professional if it requires specialized skills, knowledge, or expertise.

Courts have classified “professional” services as those that are primarily intellectual, rather than primarily manual. Courts have also acknowledged, however, that it is the actual injury causing conduct, and not the title or position of the actor, that determines whether the service is professional. In some instances, both professional and non-professional conduct can be concurrent, independent causes of injury, triggering coverage under more than one policy. Thus, the Fifth Circuit has held that a suicide death of a patient who jumped from a window was caused by both ordinary negligence (based upon the failure to secure the window) and professional negligence (in placing the patient in a non-secure ward). Courts have refused to find ordinary negligence, however, where a patient was given an overdose of medicine, and a non-professional receptionist later refused to refer a call from the patient’s parents to a treating physician. Solicitation letters from lawyers, although seeking professional employment, are not in and of themselves professional.

These issues are once again brought into play in a recent unpublished opinion from the Austin Court of Appeals, Utica Nat’l Ins. Co. of Texas v. Texas Prop. & Cas. Ins. Guaranty Ass’n, 2001 WL 1298891 (Tex. App.-Austin, October 15, 2001). In that case, both general liability and professional liability insurance was in effect. The claims arose from 44 patients who were exposed to hepatitis-C as a result of contaminated anesthesia administered to them during out patient surgeries. Apparently, an employee of the hospital had been stealing drugs for his personal use by breaking open sealed glass ampules and extracting drugs using a contaminated syringe.

Not surprisingly, the insurers disagreed as to who should provide coverage. Ultimately, the court concluded that both policies were responsible. The failure to properly secure the drugs to prevent access and contamination was considered non-professional negligence. No professional judgment, education or training was required to properly store the drugs and grant access. On the other hand, the application of the contaminated anesthesia was considered professional. Accordingly, both insurers were required to defend.