A Maryland US court declined a doctor’s request for an indemnity from his medical malpractice insurers because the insured doctor failed to report a request for medical records from the patient’s lawyer as required by the policy during the policy period.

The attorney’s request for medical records was sent on 20 April 2021. The insurance policy did not become effective till 9 October 2021 and there was no coverage for, and no duty to defend against, claims asserted in the litigation. The exclusion in the policy entitled the Medical Records Request Exclusion stated “… this policy does not apply to any claim arising out of, based upon or attributable to, in whole or in part, or in any way involving … any claim or suit brought by a patient where, prior to the inception of this policy, a patient or legal representative of a patient requested the patient’s medical records from you or your medical practice.” A “claim” was defined as “a demand for money or services … alleging an injury caused by an incident to which the insurance applied”.

The court held that under the plain language of the exclusion the request for medical records had been made before the effective date of the policy which therefore did not provide coverage. The court rejected a suggestion by the insured that the letter from the attorney’s asking for medical records was a claim because it threatened litigation if the records were not provided. The letter did not include a demand for money, only a demand for records. The court held that the exclusion was absolute and it was irrelevant whether or not the doctor reasonably believed that the incident may result in a demand for money.

Similar provisions will be found in medical malpractice policies in South Africa and the same result would follow.

[Aspen Specialty Insurance Co. v JJ Dormu D.O. case no 8:22-cv-00791 in the US District Court for the District of Maryland]