Personal Professional Liability Insurance Required as of January 1, 2008

The role of pharmacists in an evolving health care system brings about great opportunity and along with the opportunity, comes some risk. This risk, or exposures for health care deliverers, also translates into risk for the public.

Much literature is available that speaks to the liability and safety issues connected with multi-disciplinary or team based approaches to health care delivery. It is no surprise that more than half of the regulatory colleges in Ontario require their members to maintain professional liability insurance as do most other non health professional regulatory agencies

It is for these reasons that the College is proceeding with exercising its by-law making powers, as prescribed under the Health Professions Procedural Code section 94 (1)(y), to bring forward mandatory professional liability (PL) coverage for members. Mandating PL insurance further fulfils the College’s public protection mandate by ensuring that members of the public who are harmed as a result of a medical misadventure involving a pharmacist/intern can make a claim that could be covered through insurance.

In recommending this action the College explored models of mandated coverage in place for pharmacists across Canada ranging from prescribing specific criteria to simply setting minimum limits of coverage. Given the model for services in Ontario, the College believes a more prescribed approach is appropriate. We also investigated the private insurance marketplace to ensure the liability insurance products as prescribed in the by-law were available in the market at an affordable rate.

We can confirm that the following insurance products and broker organizations satisfy the criteria prescribed in College by-law.

Ontario Pharmacists' Association Broker, AON Reed Stenhouse Contact: Eija Kanniainen, OPA Phone: 416-441-0788, ext 4226 Toll Free: 1-866-903-3780 www.opatoday.com	Canadian Society of Hospital Pharmacists Broker: The Insurers Financial Group Contact: Dianne Leibold Phone: 905-707-5141, ext 1202 Toll Free: 1-800-563-7283, ext 1202 dianne.leibold@ifgcanada.com
Pharmaguard Individual Malpractice Liability, Broker, Gary McCaslin McCaslin Horne Insurance Brokers Inc. Phone: 905-877-8738 Toll Free:1-800-668-4830 mchorne@bellnet.ca www.pharmaguardins.com	Pottruff and Smith Broker - Leo Adragna Toll Free - 1-800-263-2369 x 309 ladragna@pottruffsmith.com www.pottruffsmith.com

Gellatly Insurance Limited Broker - Ben Malik Phone: 416 236 2321 ext.121 Toll Free: 1-800-381-4092 ext.121 bmalik@gellatlyinsurance.com www.gellatlyinsurance.com

2.2.1.1 Limit of Liability
An amount of $2,000,000 per claim or per occurrence and $4,000,000 annual aggregate is the acceptable minimum limit of coverage.

2.2.1.2 Definition of Insured Services
The definition of Insured Services needs to contain language for coverage of those professional services in the practice of pharmacy as regulated by the Ontario College of Pharmacists.

2.2.1.3 Type of Insurance
Both "claims made" and "occurrence" form policies will be acceptable.

2.2.1.4 Retroactive Date
The policy must not contain a retroactive date and must provide for full prior acts protection.

2.2.1.5 Extended Reporting Period (ERP)
An acceptable 'claims made' policy requires an extended reporting period provision for a minimum of 3 years.

2.2.1.6 Personal Professional Liability Insurance Coverage
The policy must be issued in the name of the individual member and provide that member with mobility and coverage wherever in Ontario that member practices.

2.2.1.7 Evidence of Insurance
A certificate of professional liability insurance, provided by the insurance company, should be secured by the member for their records and may be required annually for registration with the college. The certificate will confirm compliance with the criteria prescribed by the College.
The OCP reserves the right as a part of annual registration renewal process, to periodically secure the professional liability insurance wording for review.

2.2.1.8 Legal Defence Payments
Legal defence payments for regulatory proceedings or other legal proceedings potentially afforded by a personal professional liability policy must not erode the minimum limit of liability ($2,000,000 per claim or occurrence and $4,000,000 annual aggregate) as required by the OCP Policy for Personal Professional Liability Insurance.

Who must hold professional liability insurance coverage?
Effective January 1st, 2008, all interns and Part A pharmacists must hold personal professional liability insurance coverage in accordance with the criteria set forth in the OCP By-law, Article II, Section 2.2 (noted above).
Personal professional liability insurance coverage means that the policy is issued in the name of the individual pharmacist/intern, and that it is transportable and applies wherever you practice pharmacy in Ontario during the term of the insurance policy.

What if I already have a policy but the terms aren’t the same as the by-law?
The College acknowledges that there are members who have always maintained personal liability insurance but that the provisions of the policies are not in compliance with the by-law. We recognize that some of these policies were renewed mid year through 2007 prior to the new by-law coming into effect. These members will not be required to cancel their existing policies and obtain new policies prior to January 1^st, 2008 and can rely on their coverage to meet the College’s requirement until the policy expires, or September 30, 2008, whichever comes first.

My pharmacy already insures me for professional liability. Why do I also need personal coverage?
The OCP by-law stipulates personal professional liability insurance policy issued in the name of the pharmacist so that the coverage is mobile and is with you where ever you practice pharmacy in the province of Ontario. Furthermore, personal liability insurance covers you for advice that you may give outside of a practice environment such as at a cocktail party or to a neighbour. A corporate policy including coverage for employees (e.g. pharmacists in corporate stores or hospital pharmacies) would typically have a shared limit for liability for all corporate and employee matters. As a pharmacist, you would not know how much of that limit would be available for your claims and as such this corporate policy would not achieve the minimum requirements as set forth in the OCP by-law mandating professional liability coverage e.g. $2M per claim and $4M in annual aggregate in the name of the pharmacist.
Furthermore, a corporate insurance program may have a significant self insured retention or deductible and as such the College would not be able to fully assess the corporation’s financial obligation to respond to an allegation of an error or omission.
And finally, the College would not have the ability at any given point in time to be fully satisfied that the corporate policy takes into account the full scope of the pharmacists’ individual practice as it may restrict cover to only those acts while providing services for said corporation.

Does this mean that my company should cancel my coverage?
While it is prudent business practice for your company to carry professional liability coverage it is up to your company’s management to decide how they will manage their policy in light of the need for individual members to maintain personal professional liability insurance coverage.

Can my company buy my professional liability insurance? If so, how do we go about doing this?
The corporate entity that employs you may pay for or reimburse you for your personal professional liability insurance premium provided the insurance is in your name and stays with you even if you leave the corporation.

What is the difference between claims-made insurance and occurrence-based insurance?
Claims-made insurance provides protection if the insurance policy is in force at the time a claim is made against a pharmacist. For example, if during the term of a claims-made insurance policy a professional liability claim is made, the policy would provide protection for the insured pharmacist. However, if an incident occurred during the term of the insurance, but the claim was not made until after the expiry or cancellation of the insurance policy, the policy would not provide protection for the pharmacist.
Although the legal requirement to maintain insurance is in force only while you are a registered pharmacist, prudence would suggest that if you subscribe to a claims-made policy, you should maintain “tail coverage” after you cease to practice in the event you are sued after retirement. An extended reporting period is required under the OCP Policy and you will need to comply with that criteria in the event you cease practicing.
Occurrence-based coverage provides protection if the insurance policy is in force at the time of the incident. This means that if an incident occurs that results in a claim, you will be protected by the policy, providing that the policy was in place at the time of the incident.
However, if an incident occurs before the policy was in force, and the claim was made during the policy period, the policy would not provide protection for you. You can purchase “prior-events coverage” to accompany an occurrence-based policy to cover incidents that occurred before the insurance policy went into effect. The prior-events coverage is particularly important when you change from a claims-made to an occurrence-based policy.
The above paragraphs offer basic definitions and explanations. Ask your broker about the differences. It is also important to know how changes in the type of policy you hold will affect the scope of your coverage. Again, your broker is the best person to explain the effect of changes from one type of policy to another.

Does OCP recommend one type of insurance over another?
No. Information received from the OCP insurance consultant indicates that each type of insurance has its own merits.

Does OCP endorse any particular type of insurance or insurance provider?
No. The extent of OCP’s direction to pharmacists about professional liability insurance requirements is limited to what is contained in the by-law. The college does not endorse one insurance carrier or provider over another. OCP’s sole interest is to facilitate reasonable access to professional liability insurance coverage that meets the requirements of its Policy statement. However, we have identified several products and the broker organization that represent them.

What else should I consider when I am choosing personal professional liability insurance to fulfill my registration requirements?
It is important for you to understand the scope and limitations of any insurance policy you purchase.
First, make sure that the policy is personal in scope, meaning that it is issued in your name and that it is transportable and in effect, regardless of where you practice pharmacy in Ontario during the term of the policy.
Second, make sure that the policy meets the criteria set forth in the OCP by-law.

What is the term of the insurance that I should purchase?
You need to ensure that you have insurance coverage for the entire period that you practice. At the time you renew your annual registration, the college will ask you for evidence of insurance coverage. This process will begin with the 2008 registration year.

How will OCP administer compliance with this registration requirement?
During annual fee renewal, members will be asked to provide the name of their insurance provider along with a policy/certificate number and the term of their insurance. The information submitted by members will be cross referenced against lists of covered members that insurance companies will provide to the College. Members do not need to send a copy of their insurance certificate to the college with the renewal form, unless specifically requested to do so. If you indicate a policy expiry mid-year, after annual fee renewal, you will be required to confirm that you continue to maintain insurance upon expiry. To facilitate this confirmation, the College will automatically notify you and ask you to update your insurance information online or to provide updated policy information directly to the College.

I am an intern. When will I need to provide evidence of insurance?
At the time that you submit an application for internship, you will be required to provide evidence of insurance in accordance with the by-law.

Will the OCP mandated personal professional liability product afford coverage for working with a medical directive with delegated responsibilities from a physician?
The OCP appreciates and respects the many evolving pharmacy practices within the province and the significance of an inter-disciplinary approach. In order for the product you purchase to meet the college requirement, the insured services of the mandated professional liability product will need to incorporate professional services in the practice of pharmacy as regulated by OCP. Therefore, as long as you are acting within the scope of the pharmacy profession as deemed by the OCP you will have coverage under your policy. Please consult with your insurance broker to ensure the definition of insured services complies with the OCP by-law.

In addition to the practice of pharmacy, I provide alternative care counselling (e.g. naturopathy, osteopathy, etc.), will this policy cover me for professional services apart from pharmacy?
The goal of the OCP is to mandate a personal professional liability insurance policy for the practice of pharmacy. You will need to review with your broker and insurer if the policy can be broadened to incorporate other professional services. However, if additional services are to be covered by this same policy by a coverage extension, the minimum limit available for the practice of pharmacy cannot be eroded by such a policy extension.

What if I can’t get coverage?
The OCP has identified five providers as noted above. In the unlikely event a pharmacist has exhausted all these options and remains without coverage, alternative markets in the UK and US excess/surplus lines carriers can be approached. In the unlikely event that a member can’t get coverage, they would need to move to Part B of the pharmacist register and discontinue practicing in a patient care setting until such time that they secure coverage that complies with the by-law.

Am I covered for my cognitive fee for service work (e.g. diabetic patient counselling)?
The Insured Services to be covered within the mandated personal professional liability insurance is to include the scope of practice as deemed and regulated by the OCP. The cognitive fee for service work by pharmacists is within this scope and therefore should be covered. Please consult with your broker to ensure compliance with the OCP by-law requirements.

Please direct any questions to the Client Services department at ocpclientservices@ocpinfo.com; 416-962-4861, ext 300 or 1-800-220-1921, ext. 300.