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New Mexico Physicians Mutual Liability Co. v. Lamure8/31/1993
ur in a medical facility); Roe v. Federal Insurance Co., 412 Mass. 43, 587 N.E.2d 214, 218 (1992) (holding that a dentist's sexual assault of a patient in his office did not occur in rendering "professional services" within the scope of his liability insurance); St. Paul Fire & Marine Insurance Co. v. Quintana, 165 Mich. App. 719, 419 N.W.2d 60, 63 (holding that the sexual assault of a patient by an EEG technician was not "professional services" covered by professional liability insurance), appeal denied, 430 Mich. 885 (1988); Smith v. St. Paul Fire & Marine Insurance Co., 353 N.W.2d 130, 132 (Minn.1984) (holding that malpractice insurance did not cover liability of an insured physician who sexually assaulted several young male patients since the physician's acts were not part of medical treatment); Niedzielski v. St. Paul Fire & Marine Insurance Co., 134 N.H. 141, 589 A.2d 130, 133 (1991) (holding that a dentist who sexually assaulted a child in his office before filling her tooth was not covered by his insurance because " easonable persons would not define 'professional services' as including either sexual contact or assault between a dentist and his patient"); South Carolina Medical Malpractice Liability Insurance Joint Underwriting Ass'n v. Ferry, 291 S.C. 460, 354 S.E.2d 378, 381 (1987) (denying indemnification under malpractice insurance to a dentist who sexually assaulted
his patient); Standard Fire Insurance Co. v. Blakeslee, 54 Wash.App. 1, 771 P.2d 1172, 1177 (holding that professional liability insurance did not cover injuries to a patient who was drugged and sexually abused by her dentist because the harm was not caused in rendering "professional services"), review denied, 113 Wash.2d 1017, 781 P.2d 1320 (1989).
These cases confirm our view that LaMure's first sexual assault of Kristopher, even though committed during an examination of Kristopher's thumb, did not constitute "rendering professional services" within the coverage provisions of his malpractice insurance. As noted in Marx, "professional services" in the context of malpractice insurance coverage do not include all acts of a professional. 157 N.W.2d at 871-72. Rather it is the professional nature of a particular act by an individual that qualifies conduct as "professional services." When LaMure stopped examining Kristopher's thumb and began sexually assaulting him, LaMure's rendering of professional services ended. We are confident that coverage for "professional services" was never intended to encompass this situation.
We note, however, that some courts, under a particular set of facts, are likely to find that professional liability insurance covers sexual abuse of medical patients. This second category of cases addresses professional liability coverage for the sexual assault, misconduct, or involvement by mental health care professionals, including psychiatrists, psychologists, and therapists, with their patients. Though these cases are somewhat divided, many have held that the misconduct causes harm resulting from "professional services" when evidence concerning transference and counter-transference is presented. The theory is that due to transference, an essential aspect of therapy involving the exchange of emotions between therapist and patient, and the intense and intimate nature of mental health treatment, sexual contact between therapist and patient is foreseeable when the health care professional does not properly handle transference and counter-transference. Because transference appears to be an integral part of therapy, these courts consider sexual misconduct by the therapist as arising from "professional services," and they find insurance covera
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