<i>Most</i> HSA members dont need extra liability insurance

The Report: October 1998 vol.19 num.3


There has been a great deal of discussion and some heated debate amongmany of our members lately regarding the requirement for professional liability insurance.

Certain professional bodies such as the Canadian Society for MedicalLaboratory Science have made insurance mandatory and are refusing to process membershipfees if professional liability insurance is not purchased at the same time. Others, suchas the Registered Psychiatric Nurses Association of BC, while not making it mandatory, doencourage their members to purchase professional liability insurance.

With the strong position which some of the associations are taking, HSAinvestigated the liability of our members in the workplace. We have looked at the coveragethat most of our members have when they work in health care facilities, as well as at theprovisions of the collective agreement. Based on this review, we are of the opinion that formost of our members, there is no need to buy extra insurance.

HEABC employers are covered by the Health Care Protection Program(HCPP). This plan covers all acute-care hospitals in the province, as well as regionalhealth boards, community health councils, community health services societies and anyother health facilities that have been amalgamated into the regional bodies. Coverage isset at $50 million per occurrence.

When an action is commenced against a hospital, typically a hospitaland any employee(s) involved with the alleged incident are named in the action. Where theplaintiff does not know the name of the individual, the name Jane Doe will usually beinserted. The Health Care Protection Program represents the interests of the employee aswell as the hospital. If the employee is found liable for any negligence resulting ininjury to a patient, the hospital is automatically liable as well. The HCPP hires a lawyerto represent the hospital and the employee in any ensuing civil action.

Under Article 37.01 of the HSA collective agreement, the employerguarantees to -exempt and save harmless" each employee from any liability thatmay arise during the -proper performance of her/his duties for the Employer."This article would not provide coverage to a member who was engaged in a criminal act orany actions that may arise against an employee as a result of a criminal act by thatemployee.

As a rule, no insurance policies will provide protection againstcriminal conduct by the insured.

The plan does not contemplate trying to recover costs back from theemployee when the lawsuit is completed. Historically, this has never been known to happen.The administrators of the HCPP interpret the plan in such a way that it is incumbent uponthem to fully insure any employee, regardless of whether or not there has been negligence.

Some of the professional association literature threatens that thehospitals interests will be given priority in the event of a conflict that may ariseduring a lawsuit between the interests of the employer and the employee. The HCPP saysunequivocally that this is not the case and that the interests of the employee are equallywell represented. In fact, the obligations of a lawyer to their client under the LegalProfessions Act are very specific. If a lawyer had knowledge relating to anemployee/client that they then used against the employee/client in the interests of theemployer, they would be in breach of their solicitor/client privilege and would bedisciplined by the Law Society. While this situation has not arisen in recent history, itwould be expected that in such a case the lawyer would withdraw and in all likelihood twolawyers would be appointed to represent the employee and the employer.

In our opinion any member who is working for a health care employer andperforming their regular duties, is sufficiently insured and does not need to purchaseother professional insurance. However, remember that this applies only to employeesin facilities covered by the Health Care Protection Program set out above.Employers who are not with HEABC have other, individual plans. If you are concerned aboutthe insurance coverage at your facility, call the HSA office and we will provide you withinformation about your employers insurance plan.

It is also vital to remember that the Health Care Protection Programwill not cover any freelance work or private practice or work for any non-insuredemployers. In such a case, you should investigate the insurance the employer carries, oryou should purchase professional liability insurance.