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SJC-13821
WILLIAM E. O'CONNOR vs. MAG MUTUAL INSURANCE COMPANY.
Bristol. April 6, 2026. - August 7, 2026.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, Dewar, & Wolohojian, JJ.
Insurance, Liability insurance, Construction of policy, Coverage, Defense of proceedings against insured, Insurer's obligation to defend. Contract, Insurance. Medicine. Board of Registration in Medicine. Doctor, License to practice medicine, Prescription. Declaratory Relief. Words, "Professional services."
Civil action commenced in the Superior Court Department on August 15, 2023.
The case was heard by Elaine M. Buckley, J.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Christopher C. Trundy for the plaintiff. Sean M. Ennis for the defendant.
WENDLANDT, J. This case concerns the scope of an insurer's
duty pursuant to a "limited regulatory defense" provision of a
medical professional liability insurance policy requiring it to 2
provide "defense costs" to the insured, a physician, in
connection with an administrative proceeding "which arises out
of . . . a patient complaint about [the physician's]
professional activities." In particular, we are asked to
consider whether, pursuant to this provision, the insurer's duty
extended to an administrative proceeding commenced by the Board
of Registration in Medicine (board) seeking to suspend the
physician's certificate of registration to practice medicine
based on a patient's complaint; the complaint centered on the
physician's alleged criminal conduct unrelated to his
professional treatment of the patient, but also included an
allegation that the physician prescribed an addictive medication
to the patient when the patient's primary care physician would
no longer do so. Concluding that in these circumstances the
insurer's duty to provide regulatory defense coverage was
triggered, we vacate the Superior Court judge's order entering
judgment in favor of the insurer and remand for further
proceedings consistent with this opinion.
1. Background. We recite the following facts from the
parties' agreed facts and exhibits.
a. The policy. In 2019, Dr. William E. O'Connor
(physician) purchased a medical professional liability insurance
policy (policy) from MAG Mutual Insurance Company (insurer) for
the one-year period commencing September 1, 2019 (coverage 3
period). The policy required the insurer, inter alia, to
provide the physician with "limited regulatory defense" for
proceedings regarding his medical license during the coverage
period. The policy defined "regulatory defense" in medical
license proceedings as "[d]efense costs for any investigation,
hearing, formal action or administrative proceeding brought
against [the insured] by any licensing board . . . or regulatory
authority which arises out of" either "a covered claim"1 or "a
patient complaint about [the insured's] professional
activities." The policy defined "professional activity" as
"[p]roviding . . . medical professional services by [the
insured] to a patient."2 The policy did not define "professional
services."
1 The policy defined "claim" as an action "made by or on behalf of a patient and includ[ing] a civil lawsuit, notice of a civil lawsuit or notice of an intention to hold [the insured] responsible for damages for an incident covered by" the policy; the policy required the insurer to protect the insured from "claims first made . . . during the policy period and arising out of [the insured's] professional activities during the protected period." The physician does not contend that the board proceedings arose out of a "covered claim," see note 7, infra.
2 The policy further specified that "professional activity" included "claims for civil damages resulting from [the insured's] violation of laws governing the standards of care in [his] medical practice and [the insured's] duties to [his] patients" (emphasis added). See note 1, supra. However, the policy provided that "any acts which are in violation of any other law, statute, ordinance or regulation, including but not limited to willful destruction, [or] alteration or falsification of medical records" were not covered "professional activity" 4
b. Board proceedings. In December 2019, while the policy
was in effect, the husband (husband) of the physician's former
patient (patient) filed a complaint (board complaint) with the
board. The husband alleged that (i) an abuse prevention order
had been issued against the physician for stalking the patient,
leaving harassing voicemail messages on her telephone, stealing
her mail, and surveilling her property; (ii) the physician had
violated the abuse prevention order by trespassing onto the
patient's property and attempting to break into her house;
(iii) an arrest warrant had issued against the physician as a
result; and (iv) the physician had been in a romantic
relationship with the patient from 2008 to 2016 and had
prescribed an addictive medication to her for about six years
during this period. Pertinently, the husband asserted that the
physician prescribed the medication to the patient "as her
primary care physician would not fill anymore orders [sic] as he
was concerned about the addictive nature of the drug"; the
husband stated that the patient "feels that [the physician] used
under the policy. Although the insurer relied, in part, on this latter provision in rejecting the physician's request for coverage, it does not rely on the provision on appeal. See note 4, infra. 5
the addictive qualities of the drug as leverage to make [the
patient] dependent on him and stay in the relationship."3
A board investigation showed that a warrant had issued for
the physician's arrest for trespass, violation of an abuse
prevention order, and attempting to commit a crime at the
patient's property. The police report attached to the warrant
stated that the physician had attempted to break into the
patient's home; the husband's allegations referenced this
incident. The investigation also confirmed that the physician
had prescribed an addictive medication to the patient
approximately two dozen times between November 21, 2012, and
October 4, 2016.
In February 2020, the board's complaint counsel filed a
motion for summary suspension of the physician's certificate of
registration to practice pending a hearing on whether the
physician's license to practice medicine should be revoked.
Complaint counsel alleged that the physician "may represent a
serious threat to the public health, safety, or welfare" and, in
support of her motion, attached an affidavit of the board's
3 The husband later supplemented the board complaint, alerting the board to the physician's continued misconduct. The husband alleged that the physician had stolen mail from his and the patient's mailbox, had forged checks, and had left voicemail messages for the patient despite the terms of the abuse prevention order. The husband subsequently provided the board investigator with a "flash" drive containing materials to support his allegations. 6
investigator, who averred that he had confirmed much of the
husband's allegations. On the same day, the investigator
informed the physician of the husband's allegations and advised
him that the board had scheduled a hearing on complaint
counsel's motion.
c. Coverage dispute. The physician promptly notified the
insurer regarding the pending board proceedings and asked the
insurer to provide regulatory defense coverage under the terms
of the policy. The insurer denied coverage, contending that the
regulatory defense provision of the policy required coverage of
defense costs only if the administrative proceeding arose out of
a "covered claim" or "patient complaint about [the insured's]
professional activities." The insurer explained that the board
proceedings did not arise out of a "covered claim," which the
policy defined as "claims" first made and arising out of
professional activities during the policy period, which began on
September 1, 2019. See note 1, supra. Because the board
complaint alleged that the physician had stopped treating the
patient in 2016, before the coverage period commenced, the
insurer informed the physician that the claim was not covered
and thus that the administrative proceeding did not "arise[] out
of a covered claim" as required to trigger the regulatory
defense provision of the policy. 7
The insurer then noted that many of the husband's
allegations did not arise from a patient complaint about the
physician's "professional activities." In particular, the
insurer stated that the allegations of "stalking, trespass and
theft do not appear to relate to any professional services that
[the physician] may have provided to [the patient]." Because
the alleged criminal conduct did not concern the physician's
professional activities, the insurer contended, the limited
regulatory defense provision was not triggered.
Finally, the insurer asserted that "it is possible that
prescribing [the addictive medication] as alleged over a period
of six years could constitute a violation[] of laws which do not
govern the standard of care in [the physician's] medical
practice and . . . duties to [his] patients"; and, if so, the
conduct alleged "[did] not constitute a professional activity
and [therefore] result[ed] in no coverage." See note 2, supra.4
The physician challenged the insurer's denial of coverage
and asked the insurer to tender the full amount of the policy
limit as regulatory defense coverage, asserting that the
physician's defense costs in connection with the board
proceedings already had exceeded the policy limit. The
physician explained that the insurer's "covered claim" analysis
4 The insurer does not press this rationale for denial of coverage on appeal. 8
did not bar regulatory defense coverage because he sought
coverage for a proceeding arising out of a patient complaint
regarding his professional activities, which -- unlike a
"covered claim" -- was not limited to claims first made and
arising out of professional activity during the policy period.
See note 1, supra. The physician further asserted that the
insurer's denial violated G. L. c. 93A, § 11.
The insurer adhered to its position that regulatory defense
coverage was not available under the policy. The insurer
reasserted that the matter did not present a "covered claim"
because the physician's treatment of the patient occurred prior
to the policy period. The insurer also asserted that the board
matter was not covered because the husband, and not the patient,
had initiated the board complaint and thus the board proceedings
did not arise from a "patient" complaint.5 Finally, the insurer
restated its view that "multiple allegations" in the board
complaint did not concern the physician's "professional
activities," and that "it is possible" that the prescription
activity "could constitute a violation[] of laws which do not
govern the standards of care," thereby placing those allegations
outside the policy's coverage.
5 The insurer does not raise this argument on appeal. 9
2. Prior proceedings. The physician commenced the present
action in the Superior Court against the insurer seeking a
judgment declaring that the insurer had a duty to provide
regulatory defense coverage in connection with the board
proceedings.6 In its counterclaim, the insurer sought a
declaration that the policy did not apply. The parties agreed
to a jury-waived trial based solely on agreed facts and
exhibits, wherein the physician denied the husband's
allegations.
The trial judge concluded that the insurer had no duty to
provide regulatory defense coverage. The judge reasoned that
the allegations in the board proceedings did not arise from
"professional activities" but from criminal conduct that did not
involve providing professional services to the patient. In
response to the argument that the allegation regarding the
prescription of medication to the patient sufficed to bring the
claim within the policy's coverage, the judge stated that
"[t]here is nothing about the claim of over prescribing
medication for the purpose of coercing the [patient] to continue
her relationship with [the physician] which could be construed
as his providing 'professional services' to the [patient]." The
6 The physician also alleged breach of contract and violation of G. L. c. 93A, asserting that the insurer's denial of his request for coverage under the policy constituted an unfair and deceptive practice. 10
court entered judgment in favor of the insurer on all counts.
The physician timely appealed, and we transferred the case to
this court sua sponte.
3. Discussion. a. Standard of review. This case
requires us to interpret the terms of an insurance policy, "a
question of law subject to de novo review." Rawan v.
Contintental Cas. Co., 483 Mass. 654, 662-663 (2019). Because
the parties submitted the case to the trial judge based on
agreed facts and a purely documentary record, we are in the same
position as the judge to assess the evidence. See Commonwealth
v. Linton, 483 Mass. 227, 233-234 (2019).
When construing an insurance policy, we begin with the
policy's plain language, construing the words "in light of their
plain meaning [while] giving full effect to the document as a
whole[,] . . . consider[ing] 'what an objectively reasonable
insured, reading the relevant policy language, would expect to
be covered' . . . [and] interpret[ing] the provision of the
standard policy in a manner consistent with the statutory and
regulatory scheme that governs such policies." Mount Vernon
Fire Ins. Co. v. VisionAid, Inc., 477 Mass. 343, 348 (2017),
quoting Golchin v. Liberty Mut. Ins. Co., 466 Mass. 156, 159-160
(2013). "Any ambiguity [in an insurance policy] should be
resolved in favor of the insured[,] and coverage should be 11
provided." Vickodil v. Lexington Ins. Co., 412 Mass. 132, 134
(1992).
We agree with the parties that our analysis of the
regulatory defense provision of the policy at issue is informed
by case law construing so-called "duty to defend" provisions in
insurance contracts, which generally require an insurer to
defend the insured in suits seeking damages for covered claims
or covered losses, including shouldering defense costs such as
payment of attorney's fees and costs. In those cases, the
inquiry whether the duty to defend is triggered must be
conducted prior to a final determination of the merits of the
allegations. See Metropolitan Prop. & Cas. Ins. Co. v.
Morrison, 460 Mass. 352, 358 (2011) ("[T]he nature of the claim
and not the ultimate judgment against the insured . . . triggers
the duty to defend . . . even though the plaintiff may not
succeed" [quotation and citation omitted]); 14 J.R. Plitt,
D. Maldonado, & J.D. Rogers, Couch on Insurance § 200:3, at 200-
17 (3d ed. 2005) ("The duty to defend arises prior to the
completion of litigation, and therefore, insurers are required
to meet their defense obligation before the scope of the
insured's liability has been determined"). The provision before
us also concerns the insurer's duty to cover defense costs, an
inquiry that similarly must be conducted prior to resolution of
the regulatory proceeding on the basis of the allegations made. 12
In determining whether an insurer has a duty to defend, we
have stated that "[a]ny uncertainty as to whether the pleadings
include or are reasonably susceptible to an interpretation that
they include a claim covered by the policy terms is resolved in
favor of the insured, and the insurer must undertake the defense
until it obtains a declaratory judgment of no coverage."
Deutsche Bank Nat'l Ass'n v. First Am. Title Ins. Co., 465 Mass.
741, 745 (2013). Thus, to determine whether the insurer's duty
to provide regulatory defense coverage was triggered by the
board proceedings in the matter at bar, we must determine
whether the underlying allegations set forth in complaint
counsel's motion, which incorporated by reference the
investigator's affidavit and attached exhibits, including, inter
alia, the board complaint (collectively, the operative
complaint), are "reasonably susceptible of an interpretation
that states or roughly sketches a claim covered by the policy
terms," Holyoke Mut. Ins. Co. in Salem v. Vibram USA, Inc., 480
Mass. 480, 484 (2018), quoting Billings v. Commerce Ins. Co.,
458 Mass. 194, 200 (2010), "notwithstanding the possibility that
the underlying claim may ultimately fail, or that the merits of
the claim are weak or frivolous," Holyoke Mut. Ins. Co. in
Salem, supra. See Billings, supra (determining insurer's duty
under insurance policy "based on the facts alleged in the
complaint, and on facts known or readily knowable by the insurer 13
that may aid in its interpretation of the allegations in the
complaint").
The allegations need not "specifically and unequivocally"
trigger coverage; the allegations need only show "a possibility
that the liability claim falls within the insurance coverage"
(citation omitted). Billings, 458 Mass. at 201. See Hirst v.
St. Paul Fire & Marine Ins. Co., 106 Idaho 792, 797, 798 (Ct.
App. 1984) (although insurer's obligation to defend "depends
upon the underlying complaint against its insured, this
obligation . . . is present whenever there appears to be a
potential for coverage under the policy," and "continue[s] until
such time as the claim against the insured is confined to a
recovery that the policy does not cover" [citation omitted;
emphasis in original]).
Moreover, the duty to provide regulatory defense coverage
is triggered so long as one of the allegations that forms the
basis of complaint counsel's motion for summary suspension is
potentially covered by the regulatory defense provision. See
Mount Vernon Fire Ins. Co., 477 Mass. at 351, citing GMAC Mtge.,
LLC v. First Am. Title Ins. Co., 464 Mass. 733, 738 (2013) ("The
'in for one, in for all' rule requires that, where an insurer is
obligated to defend an insured on one of the counts alleged
against it, the insurer must defend the insured on all counts,
including those that are not covered"); GMAC Mtge., LLC, supra 14
at 738-739, citing 1 J.D. Palomar, Title Insurance Law § 11:2,
at 907 (2011), and A.D. Windt, Insurance Claims and Disputes:
Representation of Insureds & Insurers § 4.13, at 128 (1982)
(noting that "[one] rationale behind ['in for one, in for all']
general rule is that dividing representation between covered and
noncovered claims is impractical").
b. Professional activities. Pursuant to the regulatory
defense provision of the policy, the insurer agreed to provide
"[d]efense costs for any investigation, hearing, formal action
or administrative proceeding brought against [the insured] by
any licensing board . . . or regulatory authority which arises
out of a covered claim[7] or a patient complaint about [the
insured's] professional activities" (emphases added). The
policy defines "professional activity" as "[p]roviding . . .
medical professional services by [the insured] to a patient."
Here, there is no dispute that the board proceeding is
encompassed by "any investigation, hearing, formal action or
administrative proceeding brought against [the insured] by any
licensing board." The central question on appeal is whether the
board proceeding arose out of a patient complaint about the
7 The Superior Court judge determined that the board proceedings did not arise out of a covered claim because the board complaint was not a civil lawsuit, a notice of a civil lawsuit, or a notice of intention to hold the physician responsible for damages. See note 1, supra. The physician does not challenge this conclusion on appeal. 15
physician's provision of medical "professional services" to the
patient.
The policy does not define the term "professional
services." Absent an express definition in a professional
liability insurance policy, we have determined that a
"professional service" means
"one arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual, rather than physical or manual . . . . In determining whether a particular act is of a professional nature or a 'professional service' we must look not to the title or character of the party performing the act, but to the act itself."
Roe v. Federal Ins. Co., 412 Mass. 43, 48 (1992), quoting Marx
v. Hartford Acc. & Indem. Co., 183 Neb. 12, 13 (1968).
Whether a particular act constitutes "professional
services" depends on several relevant considerations, including
"that membership in [the] profession has traditionally been
recognized as requiring the possession of special learning,"
that "when rendering patient care, [said professionals] are
called upon to use or apply special learning," and that there is
a "causal relationship between the alleged harm and the
complained-of professional act or service, that is, it must be a
medical or dental act or service that causes the harm, not an
act or service that requires no professional skill." Roe, 412
Mass. at 49. The focus of such an assessment is "the act or 16
service performed rather than the fact that the alleged
wrongdoer was a physician." Id. In short, "the scope of
professional services does not include all forms of a medical
professional's conduct simply because he or she is a doctor."8
Id., quoting Niedzielski v. St. Paul Fire & Marine Ins. Co., 134
N.H. 141, 144 (1991). "Common sense, of course, will always
provide a useful guide in differentiating covered from uncovered
cases." Roe, supra.
With this guidance in mind, the insurer correctly
determined that the allegations of the operative complaint
centering on the physician's criminal conduct do not comprise
professional services. These allegations included stalking the
patient, leaving harassing voicemail messages on her telephone,
stealing her mail, surveilling her property, and trespassing
onto the patient's property and attempting to break into her
house. None of these actions required membership in the medical
profession or involved rendering patient care. See Roe, 412
8 Other jurisdictions have adopted a similar approach, looking to the act performed by the professional rather than the character of the actor as a professional to determine coverage for alleged professional activities under insurance policies. See, e.g., Horn v. Burns & Roe, 536 F.2d 251, 255 (8th Cir. 1976); Mason v. Liberty Mut. Ins. Co., 370 F.2d 925, 926 (5th Cir. 1967); Gulf Ins. Co. v. Gold Cross Ambulance Serv. Co., 327 F. Supp. 149, 152 (W.D. Okla. 1971); Hirst, 106 Idaho at 796; Niedzielski v. St. Paul Fire & Marine Ins. Co., 134 N.H. 141, 144 (1991); Vigue v. John E. Fogarty Memorial Hosp., 481 A.2d 1, 3 (R.I. 1984); Sanzi v. Shetty, 864 A.2d 614, 618 (R.I. 2005). 17
Mass. at 49. Perforce, there is no causal relationship between
the harm caused by this conduct and any professional service;
the acts required no professional skill in medicine. See id.
The only connection between the complained-of criminal conduct
and the medical profession is the fact that the conduct
allegedly was performed by a physician. As such, this conduct
is not a "professional service" as required to trigger
regulatory defense coverage. See id., quoting Niedzielski, 134
N.H. at 144 ("[T]he scope of professional services does not
include all forms of a medical professional's conduct simply
because he or she is a doctor").
The allegation that the physician prescribed addictive
medication to the patient when her primary care physician would
no longer do so in view of the medication's addictive qualities
requires a different result. To begin, the prescription of
medication to a patient is an act requiring "membership in [the
medical] profession [that] has traditionally been recognized as
requiring the possession of special learning." Roe, 412 Mass.
at 49. Only certain licensed healthcare professionals may
prescribe medication, and the scope of this prescriptive
authority is governed by both State and Federal law. See
Commonwealth v. Stirlacci, 483 Mass. 775, 781 (2020), quoting
G. L. c. 94C, § 19 (a) ("The Controlled Substances Act mandates
that valid prescriptions for controlled substances 'be issued 18
for a legitimate medical purpose by a practitioner acting in the
usual course of his [or her] professional practice'"). See
generally G. L. c. 13, § 10 (establishing and enumerating duties
and authorities of board); G. L. c. 94C, § 18 (issuance of
prescription by practitioner or physician); G. L. c. 94C, § 19
(prescription; restrictions on issuance).
Moreover, the prescription of medication -- especially
addictive or controlled substances -- when performed while
"rendering patient care," requires the physician "to use or
apply special learning," Roe, 412 Mass. at 49; as such,
prescribing medication involves "specialized knowledge, labor,
or skill," where "the labor or skill involved is predominantly
mental or intellectual, rather than physical or manual"
(citation omitted), id. at 48. See Stirlacci, 483 Mass. at 782
(construing phrase "usual course of professional [medical]
practice" in statute governing prescription of controlled
substances to mean "the routines customarily expected in the
context of the medical profession"). Here, the operative
complaint can be read to allege that, at the time the physician
prescribed the addictive medication, he was rendering care to
the patient, who had been receiving prescriptions for the
medication at issue from her primary care physician. See
Billings, 458 Mass. at 200-201 (allegations need only show
"possibility" of coverage [citation omitted]). 19
In addition, at least on the face of the operative
complaint, there existed a potential "causal relationship
between the alleged harm [to the patient] and the complained-of
professional act or service." Roe, 412 Mass. at 49.
Specifically, the husband alleged that the physician prescribed
a controlled substance to the patient when her primary care
physician would not continue to do so in view of its addictive
qualities. A fair inference from this allegation is that the
patient potentially was harmed by the physician's continued
issuance of prescriptions for the drugs, which ran counter to
another physician's professional judgment.9 Compare Standard
Fire Ins. Co. v. Blakeslee, 54 Wash. App. 1, 11 (1989) (insurer
had no duty to defend dentist accused of sexual assault of
patient where "[dentist's] administration of nitrous oxide,
although admittedly a professional service, [could not] be said
to be a proximate cause of" patient's injuries), with St. Paul
Fire & Marine Ins. Co. v. Shernow, 222 Conn. 823, 830 (1992)
(insurer was required to indemnify dentist accused of sexual
assault of patient for damages stemming from misapplication of
nitrous oxide where "there was not only evidence of negligent
administration of the nitrous oxide, but also direct, physical
9 In so concluding, we do not suggest the applicable standard of care. 20
injury proximately caused by the nitrous oxide itself,"
including permanent damage to patient's lungs).
This case is distinguishable from the circumstances
presented in Roe. That case did not concern an insurer's duty
to defend; instead, we addressed an insurer's duty to indemnify
a dentist who had settled an action brought by a patient who
alleged the dentist had sexually assaulted her, including once
after administering novocaine for a dental procedure. Roe, 412
Mass. at 44-46. Other than placing the patient in a vulnerable
position for his assaultive behavior, there was no finding or
admission by the dentist that the administration of novocaine
itself harmed the patient. In other words, there was no causal
relationship between the patient's harm and the rendering of any
professional services. Here, by contrast, because the insurer's
duty under the regulatory defense provision is triggered by
allegations showing merely a "possibility" of conduct warranting
coverage, Billings, 458 Mass. at 201, we must consider that the
operative complaint gives rise to an inference that the patient
suffered injury, separate and apart from the prolonging of an
apparently unwanted relationship with the physician, from the
continued prescription of the medication when her primary care
physician would no longer prescribe it. Cf. St. Paul Fire
& Marine Ins. Co., 222 Conn. at 829-830 (in addition to sexually
assaulting patient after administering nitrous oxide for dental 21
procedure, dentist also caused injury to patient's lungs by
improperly administering nitrous oxide to maintain patient's
vulnerable state).
In these circumstances, we conclude that the allegations of
the operative complaint regarding the prescription of the
medication to the patient constitute providing a professional
service. In turn, the operative complaint triggered the
insurer's obligation to provide regulatory defense coverage even
though, as discussed supra, the complaint also alleges criminal
misconduct that falls outside the scope of professional
services. See Mount Vernon Fire Ins. Co., 477 Mass. at 351
("where an insurer is obligated to defend an insured on one of
the counts alleged against it, the insurer must defend the
insured on all counts, including those that are not covered");
Simplex Techs., Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196,
199 (1999) ("That some, or even many, of the underlying claims
may fall outside the coverage does not excuse [insurer] from its
duty to defend these actions").
4. Conclusion. Concluding that the insurer's duty to
provide regulatory defense coverage was triggered in the
circumstances presented, we vacate the Superior Court judge's
order entering judgment in favor of the insurer and remand for
further proceedings consistent with this opinion.
So ordered.