40-3408. Liability of insurer or self-insurer for injury or death arising out of act or omission of health care provider, limitation; fund coverage excess over liability insurance coverage; permissive
40-3408
40-3408. Liability of insurer or self-insurer forinjury or death arisingout of act or omission of health care provider, limitation; fund coverageexcess over liability insurance coverage; permissive exclusions fromcoverage.(a) The insurer of a health care provider covered by the fund orself-insurer shallbe liable only for the first $200,000 of a claim for personal injury or deatharising out of the rendering of or the failure to render professional servicesby such health care provider, subject to an annual aggregate of $600,000 forall such claims against the health care provider. However, if any liabilityinsurance in excess of such amounts is applicable to any claim or would beapplicable in the absence of this act, any payments from the fund shall beexcess over such amounts paid, payable or that would have been payable in theabsence of this act. The liability of an insurer for claims made prior to July1, 1984, shall not exceed those limits of insurance provided by such policyprior to July 1, 1984.
(b) If any inactive health care provider has liability insurance ineffectwhich is applicable to any claim or would be applicable in the absence ofthis 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 KansasStatutesAnnotated to the contrary, an insurer that provides coverage to a health careprovider may exclude from coverage any liability incurred by such provider:
(1) From the rendering of or the failure to render professionalservices byany other health care provider who is required by K.S.A. 40-3402 and amendmentsthereto to maintain professional liability insurance in effect as a conditionto rendering professional services as a health care provider in this state; or
(2) based upon or relating to the health care provider's sexualactsor activity, but in such cases the insurer may provide reasonable andnecessary expenses for attorney fees incurred in defending against suchclaim. The insurer may recover all or a portion of such expenses for attorneyfees if an adverse judgment is returned against the health care providerfor damages resulting from the health care provider's sexual acts or activity.
History: L. 1976, ch. 231, § 8; L. 1984, ch. 238, § 5; L. 1986,ch. 229, § 30; L. 1990, ch. 174, § 3;L. 1997, ch. 134, § 4; July 1.