Professional Negligence Law Reporter

A New York appellate court held that an insurer must defend an insured physician in a suit alleging that he sexually abused a former patient.

Here, a former patient alleged pediatrician Bogdan Mscichowski sexually abused her as a child. Mscichowski brought an action against MLMIC Insurance Co., seeking a declaration that the defendant had a duty to defend and indemnify him in the underlying suit. The trial court found that the insurer had no duty to defend or indemnify Mscichowski.

Reversing, the appellate court held that the duty to defend is broad, and an insurer will be asked to provide a defense when the allegations in a complaint suggest a reasonable possibility of coverage. Here, the court said, the complaint alleges sexual abuse but also claims that the physician improperly cared for and treated his former patient. Without further details about the alleged abuse, the court said it could not categorically conclude that the underlying complaint was devoid of facts or allegations that potentially brought the patient’s claims within the insurance protection the physician had purchased.

Consequently, the court held that the defendant had failed to meet its burden of establishing that all the claims in the underlying action were subject to the policy’s exclusion for sexual assault and battery.

Citation: Mscichowski v. MLMIC Ins. Co., 227 A.D.3d 1372 (N.Y. App. Div. 2024).

Plaintiff counsel: David Rothenberg, Rochester, N.Y.