A Massachusetts plastic surgeon was suspended by the state Board of Medicine in 2020 for allegedly stalking and harassing a former patient—a patient who happened to be a former girlfriend.
A complaint filed with the Board by the woman’s husband also alleged that Dr. William E. O’Connor, of Fall River, prescribed addictive medication to the girlfriend when another doctor would not, perhaps in an attempt to make her dependent on O’Connor’s companionship, court filings indicate.
Because of that prescribing activity, which a lower court judge and the physician’s liability insurer said was illicit and was not part of his professional duties, the Massachusetts Supreme Judicial Court this week said it had little choice but to find that Mag Mutual Insurance Co. must pay for O’Connor’s legal defense.
“Here, the operative complaint can be read to allege that, at the time the physician prescribed the addictive medication, he was rendering care to the patient…” the high court justices wrote in the opinion. “In turn, the operative complaint triggered the insurer’s obligation to provide regulatory defense coverage even though … the complaint also alleges criminal misconduct that falls outside the scope of professional.”
The court overturned the lower court’s finding that Mag Mutual had no duty to defend, and the justices remanded the case for further proceedings.
O’Connor, who specialized in facial surgery and ear, nose and throat conditions, had purchased a Mag Mutual professional liability policy in 2019. Later that year, the woman’s husband filed his complaint with the Board of Medicine. The board investigated then suspended the doctor’s license. The suspension made headlines in local news outlets at the time.
O’Connor filed notice with the insurance company, asking for defense or reimbursement for his legal fees while he fought the allegations, the court explained. Mag Mutual denied the claim, arguing that the physician had stopped treating his girlfriend as a patient in 2016, well before the policy period began.
After O’Connor sued for breach of contract, the insurer also said in court briefs that the stalking and harassment, including alleged break-ins and phone messages, were part of the complaint but were not part of the doctor’s professional activities, so coverage was excluded. The complaint also had come from the husband, not the former patient, and the prescribing of addictive medication was probably a criminal act, Mag Mutual’s lawyers noted.
“What was alleged is intentional tortious conduct, for which coverage is not available under the policy,” Mag Mutual’s attorney, Sean Ennis, wrote in a brief.
The Superior Court judge, Elaine Buckley, agreed with the insurer.
“There is nothing about the claim of over prescribing medication for the purpose of coercing the [patient] to continue her relationship with [the physician] which could be construed as his providing ‘professional services’ to the [patient],” Buckley wrote.
But in the appeal, the Supreme Court pointed out that Massachusetts statutes and previous court decisions require a pretty broad interpretation of an insurer’s responsibilities. Policy ambiguities should be resolved in favor of the insured. And allegations against a policyholder need to show only a possibility that claim falls within the coverage, the opinion explains.
Further, as long as just one of the allegations is potentially covered, the insurer must defend, Justice Dalila Argaez Wendlandt wrote for the court.
“The ‘in for one, in for all’ rule requires that, where an insurer is obligated to defend an insured on one of the counts alleged against it, the insurer must defend the insured on all counts, including those that are not covered,” Wendlandt explained, quoting from three previous court opinions.
One rationale for that rule is that dividing representation between covered and noncovered claims is impractical, she noted.
The deciding factor was the fact that O’Connor prescribed the meds to his girlfriend. That’s something only a professional medical provider can do, even if it was under shady circumstances.
“Only certain licensed healthcare professionals may prescribe medication, and the scope of this prescriptive authority is governed by both State and Federal law,” the Supreme Court opinion concluded.
The opinion did not say how much O’Connor had spent on legal representation in fighting the complaint allegations, only that the amount exceeded the policy limits.
O’Connor, who began his practice in 1980, appears to be no longer in practice. The Board of Medicine website indicates his license expired in 2021. An answering service for an office phone number listed for O’Connor said Tuesday that he does not work there.
Mag Mutual, headquartered in Atlanta, is owned by health care provider policyholders.
Topics Massachusetts
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