Applying Maine law, the United States Court of Appeals for the First Circuit has held that a professional liability insurer had no duty to defend a physician for claims arising out of his alleged improper accessing of his ex-wife’s medical records on the basis that such action did not constitute the rendering of professional services.  Med. Mut. Ins. Co. of Me. v. Burka, 2018 WL 3805909 (1st Cir. Aug. 10, 2018).

The insured, a physician, sought coverage for two lawsuits brought by his ex-wife who alleged that the physician improperly accessed her medical records during their deteriorating marriage to harass and embarrass her.  Among other counts, the ex-wife asserted a cause of action pursuant to a Maine statute prohibiting the disclosure of an individual’s confidential health care information in the course of a doctor-patient relationship.

The physician sought a defense under a physicians liability insurance policy.  The policy provided coverage for claims arising from “professional services” rendered within the scope of the insured’s duties as a physician employee of the hospital.  The policy defined “professional services” to include an insured’s “obligation to maintain patient confidentiality in the handling of patient records in the direct course of providing professional services to that patient.”  The insurer filed suit, seeking a judicial declaration that the ex-wife’s suits did not allege the provision of professional services.  The district court held that the insurer had no duty to defend.

On appeal, the insured argued that the term “professional services” was ambiguous due to its allegedly circular definition and therefore should be construed to mean to “maintain confidentiality in the handling of patient records.”  The appeals court acknowledged what it saw as the “poor drafting” of the term “professional services,” but held that the circularity did not “beget ambiguity.”  Rather, the court held that the only reasonable interpretation of the policy was that an insured’s alleged mishandling of patient records was covered only if the physician’s breach of confidentiality arose “in the direct course of providing [healthcare services] to that patient.”

The court found that the insured’s alleged breach could not have possibly arisen in the course of providing healthcare services to his ex-wife.  The court noted that the physician’s alleged personal motives for accessing the documents and the context in which he accessed them “directly contradict[ed] a professional association between them.”  The court further rejected the insured’s argument that, because the alleged statutory violation requires a doctor-patient relationship, the complaint alleged such a relationship.  The court distinguished the legal sufficiency of a complaint from “whether [Maine’s] comparison test reveals a duty to defend[.]”