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R.W. v. Schrein11/1/2002
s not a professional act or service for which medical malpractice insurance coverage is provided. See, e.g., Snyder v. Major, 789 F. Supp. 646 (S.D.N.Y. 1992), modified 818 F. Supp. 68 (S.D.N.Y. 1993); St. Paul Ins. Co. of Illinois v. Cromeans, 771 F. Supp. 349 (N.D. Ala. 1991); Physicians Ins. Co. v. Pistone, 555 Pa. 616, 726 A.2d 339 (1999); D.D. v. Insurance Co. of North America, 905 P.2d 1365 (Alaska 1995); N.M. Physicians Mut. Liability v. LaMure, 116 N.M. 92, 860 P.2d 734 (1993); Roe v. Federal Ins. Co., 412 Mass. 43, 587 N.E.2d 214 (1992); Niedzielski v. St. Paul Fire & Marine Ins. Co., 134 N.H. 141, 589 A.2d 130 (1991); S. C. Med. Malpractice Liab. Ins. v. Ferry, 291 S.C. 460, 354 S.E.2d 378 (1987); Smith v. St. Paul Fire & Marine Ins. Co., 353 N.W.2d 130 (Minn. 1984); American Casualty Co. v. Corum, 131 Or. App. 445, 885 P.2d 726 (1994), vacated on other grounds 321 Or. 135, 894 P.2d 461 (1995); Lindheimer v. St. Paul Fire & Marine Ins., 643 So. 2d 636 (Fla. App. 1994); Steven G. v. Herget, 178 Wis. 2d 674, 505 N.W.2d 422 (Wis. App. 1993); Cluett v. Medical Protective Co., 829 S.W.2d 822 (Tex. App. 1992); Standard Fire Ins. v. Blakeslee, 54 Wash. App. 1, 771 P.2d 1172 (1989); St Paul Fire Ins v Quintana, 165 Mich. App. 719, 419 N.W.2d 60 (1988); Hirst v. St. Paul Fire & Marine Ins. Co., 106 Idaho 792, 683 P.2d 440 (Idaho App. 1984). generally, Annot., 60 A.L.R.5th 239 et seq. (1998 & Supp. 2002).
There is no dispute among appellate courts, even in those cases that find insurers to be liable for sexual contact, about the applicability of the holding in Marx v. Hartford Acc. & Ind. Co., 183 Neb. 12, 157 N.W.2d 870 (1968). Generally, cases that find sexual contact to be "professional services" do so by either (1) expanding the scope of the "act" to include the sexual contact or (2) lowering the requirement for causation between the act and the damages. There is no dispute that when a court is determining the coverage of a professional liability insurance policy, it must examine the nature of the act performed, rather than the title or professional character of the actor. Niedzielski, supra.
Based on these standards, courts have generally refused to require insurers to provide coverage for sexual acts, based on professional liability insurance policies with medical care providers, because sexual activity with a patient is not a part of the delivery of professional services or part of medical treatment. See Snyder, supra. When the physician's sexual contact with his or her patient is not necessitated by the particular course of medical treatment, then the malpractice insurance policy does not provide coverage for the damages sustained by the victim. Blakeslee, supra.
The most well-known statement of the minority rule is St. Paul Fire & Marine Ins. Co. v. Asbury, 149 Ariz. 565, 720 P.2d 540 (Ariz. App. 1986). In that case, the Court of Appeals of Arizona articulated the following rationale for concluding that sexual assault was a "professional service":
The claims of Dr. Asbury's patients that he manipulated their clitorises while performing routine gynecological examinations, if true, was tortious conduct committed while providing professional services and covered by his insurance policy. Most of the cases cited to us by St. Paul are distinguishable because the tortious sexual abuse of the patient was not intertwined with and inseparable from the services provided. Id. at 567, 720 P.2d at 542. Accord, St. Paul Fire & Marine Ins. v. Torpoco, 879 S.W.2d 831 (Tenn. 1994); St. Paul Fire and Marine Ins. Co. v. Shernow, 222 Conn. 823, 610 A.2d 1281 (1992).
The Asbury court adopted the rationale of the trial court in that case,
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