Scope of practice and malpractice insurance

Excerpted from page 44 of the July/August 2022 edition of AOA Focus.

It is common for doctors of optometry to have questions regarding whether their scope of practice is covered by their malpractice insurance policy. Kevin Johnson, senior vice president of Lockton Affinity—an AOAExcel®-endorsed business partner—shed some light on pertinent questions regarding scope-of-practice coverage as well as scope expansion.

What does a doctor need to do to ensure their entire scope of practice is covered by their malpractice policy?

First, look at their insurance policy. The policy should contain language to confirm whether scope of practice is covered. The policy should be specific about what is and isn’t covered. Second, if they’re not sure how to interpret an insurance policy, reach out to their current insurance agent and ask them if their policy provides scope-of-practice coverage, and if so, ask where that is found in their insurance policy packet.

What does an exclusion mean for a policy? What are some common exclusions a doctor might find in their policy?

An exclusion means that an action or event is not covered by the policy, so it is excluded from having any insurance coverage for the policy holder. As far as common exclusions, the most important one that we try to identify is a surgery exclusion. The exclusions vary in how they are worded. Some of the more concerning exclusions include having no coverage if surgery penetrates tissue or any part of the body. If you have a foreign body in your eye, sometimes it can be in the second or third layer of the eye, which by the letter of the law could be potentially excluded because it is considered surgery.

Can you explain the difference between a full policy and a certificate of insurance?

A full policy is the entire insurance document, which can be quite lengthy (sometimes from 80 to 100 pages). The full policy can include everything from the declarations page to any endorsements that are added to the policy specific to your individual risk. This document will contain all the relevant policy language. A certificate of insurance is usually a one-page document that is going to have very high-level information and will contain the name of the insured, the name of the insurance company who is providing the coverages, and the applicable limits for the coverages that are outlined on the one-page document. The certificate is provided as evidence of coverage.

What are the consequences for a doctor when their policy doesn’t cover a claim?

In the worst-case scenario, it could be catastrophic. If the coverage doesn’t cover a claim and the claim is severe (for instance, the patient suffers loss of vision or something along those lines) or if the personal liability insurance has an exclusion that doesn’t offer coverage, at that point the doctor might potentially have to come out of pocket to cover those damages for their patient based off the incident.

What questions should a doctor be asking their insurance broker regarding their policy?

The first question we always have a doctor ask their insurance broker is: Does your current coverage provide scope of practice? As their state scope changes and evolves, if a doctor has scope of practice built into the policy form, they don’t have to call in every time the state changes. If it’s not set up that way in the policy, then the doctor needs to check in with their insurance agent every time the scope changes. Other questions include: Is there a surgery exclusion on my malpractice insurance and if there is, what specifically does it exclude? What is considered surgery based off the policy document that I have?

In the upcoming year, some states may be passing legislation to expand their scope of practice. When scope of practice expands, what steps can a doctor take to ensure their professional liability policy covers these changes?

In the Lockton Affinity policy available to AOA members, scope-of-practice language is already built in. As the state changes and as use of lasers becomes more prominent, those under the Lockton Affinity policy do not have to call in and confirm the coverage. For other policies and other agencies, if their policy form doesn’t contain language for scope of practice, they would need to call in to confirm every time their state changed the scope of practice to confirm they are covered. We encourage those people to have that in writing from their insurance agent.