Personal Liability Insurance Coverage; ONA Concerns Re Bill 179

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					ONA Biennial Convention – November 2010

                       Personal Liability Insurance Coverage
                           ONA Concerns re Bill 179 Amendment

On September 23, 2010, ONA met with representatives of the Ministry of Health and Long-Term
Care (MOHLTC) and the College of Nurses of Ontario (CNO). At this meeting, we outlined our
concerns with respect to the professional liability insurance amendment in Bill 179 to the Health
Professions Procedural Code. This amendment requires members of all health regulatory
colleges to be “personally insured against professional liability” under a professional liability
insurance policy.

Bill 179 received Royal Assent on December 15, 2009, but there has not been a day set for
proclamation by the Lieutenant Governor in Council. While it has not yet been proclaimed in
force, the regulatory colleges, including the CNO, are proposing amendments to their general
by-laws in anticipation of the amendment.

Employers of ONA members are legally responsible for the negligence of all its employees,
including those of its employees governed by a regulatory college (vicarious liability). This
follows from the longstanding common law principle of vicarious liability under which employers
are liable for the acts of their employees. In practice, this means that employing agencies like
hospitals and homes all carry primary liability insurance, which provides coverage for claims
against its employees. In the case of hospitals, this insurance generally covers claims to the
level of $15,000 to $20,000,000. Accordingly, all patients receiving health care from ONA
members are already protected by this liability coverage.

In addition to the liability insurance carried by the employing agencies, ONA provides excess
insurance coverage for its membership through ONA Liability Insurance Ltd. This insurance
provides extra insurance coverage for its members for situations where judgment is awarded or
a settlement made against a member of ONA in excess of the amount of primary insurance
coverage carried by the member’s employer. The limits of this policy are $1,500,000 per loss,
with a $6,000,000 aggregate limit per member. It is contingent on primary insurance by the
employer to a minimum of $5,000,000. Accordingly, the current liability coverage for ONA
members provides an additional layer of protection, on top of the primary insurance required to
be carried by all agencies in which ONA members work.

The requirement that each member of a college be “personally insured against professional
liability” may be subject to an interpretation that requires all ONA members to purchase
personal primary insurance, which duplicates the coverage already being provided by and
through their employer’s primary insurance plan.

Not only does this undermine the concept of vicarious liability, which has historically been in
place in all common law jurisdictions and has worked well in the health care industry, it results in
significant increased costs to both ONA members specifically and to the health system
generally, with no increased benefit to patients. While it is totally justifiable to require all self-
employed health care professionals to carry personal liability insurance, the same
considerations should not apply with respect to employed health care professionals where
primary insurance is already being carried by the employers.

ONA will continue to lobby CNO and the government to ensure ONA's Liability Insurance is
recognized as an appropriate insurance plan under the Regulated Health Professionals Act
(RHPA). It continues to be our position that the majority of ONA members have adequate
personal insurance coverage, with such coverage being provided by their employer and by
ONA’s Liability Insurance Plan.
Personal Liability Insurance Coverage: ONA Concerns re Bill 179 Amendment                  Page 2
ONA Biennial Convention – November 2010

What we want from CNO

•   Confirmation that the proposed amendments to the general by-law, which were approved by
    CNO Council at its September 2010 meeting, will not come into force pending proclamation
    of the amendment to the Code.

•   Finalization of the by-law to be put on hold until such time as the concerns raised by ONA
    with MOHLTC can be addressed. Given the by-law is unnecessary until there is
    proclamation of the amendment by the Lieutenant Governor and Council, this is a
    reasonable request.

•   The College’s Notice to Members of the proposed amendments has resulted in a great deal
    of confusion on the part of ONA members with respect to the adequacy of the coverage
    provided for our members and ONA’s excess liability insurance compliance with the
    proposed by-law. The College should inform its membership that until the amendment is
    proclaimed and a by-law is passed by Council, members of the College will not be required
    to provide proof of insurance.

What we want from MOHLTC

•   Confirmation there is no current plan to proclaim into law the professional liability insurance

•   Confirmation of their commitment to defer proclaiming the amendment until such time as
    further consideration can be given to the impact of this proposed legislation and further
    discussions with ONA.

•   Prior to any proclamation of this amendment, that a distinction be recognized between
    independent practitioners and those who are employed in a setting under which the
    employer’s primary insurance provides adequate coverage to its employees.

What we want from employers

•   The government has advised colleges that the requirement for personal insurance for health
    professional can be provided through employers. ONA will take the position that employers
    are required to provide to ONA members satisfactory proof they are in compliance with the
    anticipated requirements of their colleges. While it is our hope the primary insurance already
    carried by hospitals complies with the requirements being put in place by CNO, some
    modifications to the policies or additional insurance may be necessary for regulated
    employees. Employers must assume any costs of meeting these new requirements.

•   ONA has asked for the Ontario Hospital Association (OHA) to consult member hospitals on
    this matter and, through discussion with the principal insurers, including Healthcare
    Insurance Reciprocal of Canada (HIROC), provide ONA with information with respect to
    the adequacy of the current coverage in meeting the proposed amendments. Other
    employers will be required to do the same.

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