Kansas Statutes 40-3408. Liability of insurer or self-insurer for injury or death arising out of act or omission of healthcare provider, limitation; fund coverage excess over liability insurance coverage; permissive exclusions from coverage
Terms Used In Kansas Statutes 40-3408
- Basic coverage: means a policy of professional liability insurance required to be maintained by each healthcare provider pursuant to the provisions of Kan. See Kansas Statutes 40-3401
- Charitable healthcare provider: means the same as defined in Kan. See Kansas Statutes 40-3401
- Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- Fund: means the healthcare stabilization fund established pursuant to Kan. See Kansas Statutes 40-3401
- Healthcare provider: means a person licensed to practice any branch of the healing arts by the state board of healing arts, a person who holds a temporary permit to practice any branch of the healing arts issued by the state board of healing arts, a person engaged in a postgraduate training program approved by the state board of healing arts, a medical care facility licensed by the state of Kansas, a podiatrist licensed by the state board of healing arts, a health maintenance organization issued a certificate of authority by the commissioner, an optometrist licensed by the board of examiners in optometry, a pharmacist licensed by the state board of pharmacy, a licensed professional nurse who is authorized to practice as a registered nurse anesthetist, a licensed professional nurse who has been granted a temporary authorization to practice nurse anesthesia under Kan. See Kansas Statutes 40-3401
- Inactive healthcare provider: means a person or other entity who purchased basic coverage or qualified as a self-insurer on or subsequent to the effective date of this act but who, at the time a claim is made for personal injury or death arising out of the rendering of or the failure to render professional services by such healthcare provider, does not have basic coverage or self-insurance in effect solely because such person is no longer engaged in rendering professional service as a healthcare provider. See Kansas Statutes 40-3401
- Insurer: means any corporation, association, reciprocal exchange, inter-insurer and any other legal entity authorized to write bodily injury or property damage liability insurance in this state, including workers compensation and automobile liability insurance, pursuant to the provisions of the acts contained in article 9, 11, 12 or 16 ofchapter 40 of the Kansas Statutes Annotated, and amendments thereto. See Kansas Statutes 40-3401
- Professional liability insurance: means insurance providing coverage for legal liability arising out of the performance of professional services rendered or that should have been rendered by a healthcare provider. See Kansas Statutes 40-3401
- Professional services: means patient care or other services authorized under the act governing licensure of a healthcare provider. See Kansas Statutes 40-3401
- Self-insurer: means a healthcare provider who qualifies as a self-insurer pursuant to Kan. See Kansas Statutes 40-3401
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See Kansas Statutes 77-201
- Tort: A civil wrong or breach of a duty to another person, as outlined by law. A very common tort is negligent operation of a motor vehicle that results in property damage and personal injury in an automobile accident.
(a) For a claim for personal injury or death arising out of the rendering of or the failure to render professional services by a healthcare provider, the insurer of a healthcare provider covered by the fund or self-insurer shall be liable only for the amount of basic coverage in effect on the date of the incident giving rise to the claim, subject to an annual aggregate amount of not less than three times the primary amount for all such claims against the healthcare provider. If any liability insurance in excess of such amounts is applicable to any claim or would be applicable in the absence of this act, any payments from the fund shall be excess over such amounts paid, payable or that would have been payable in the absence of this act.
(b) If any inactive healthcare provider has liability insurance in effect that is applicable to any claim or would be applicable in the absence of this act, any payments from the fund shall be excess over such amounts paid, payable or that would have been payable in the absence of this act.
(c) Notwithstanding anything in article 34 of chapter 40 of the Kansas Statutes Annotated, and amendments thereto, to the contrary, an insurer that provides coverage to a healthcare provider may exclude from coverage any liability incurred by such provider:
(1) From the rendering of or the failure to render professional services by any other healthcare provider who is required by Kan. Stat. Ann. § 40-3402, and amendments thereto, to maintain professional liability insurance in effect as a condition to rendering professional services as a healthcare provider in this state; or
(2) based upon or relating to the healthcare provider’s sexual acts or activity, but in such cases the insurer may provide reasonable and necessary expenses for attorney fees incurred in defending against such claim. The insurer may recover all or a portion of such expenses for attorney fees if an adverse judgment is returned against the healthcare provider for damages resulting from the healthcare provider’s sexual acts or activity.
(d) The fund shall not be liable for payment of any claim excluded by an insurer pursuant to this section or any claim otherwise excluded from coverage under a healthcare provider’s professional liability insurance.
(e) Notwithstanding any provision of article 34 of chapter 40 of the Kansas Statutes Annotated, and amendments thereto, to the contrary, an insurer that provides coverage to a healthcare provider may exclude from coverage:
(1) Any liability incurred by such healthcare provider as a result of professional services rendered as a charitable healthcare provider; or
(2) any liability incurred by such healthcare provider that is covered under the federal tort claims act pursuant to chapter 171 of title 28 of the United States code.