Description of State Coverage for Volunteer Clinical Instructors and Pharmacy Students
NOTE: The State coverage is by statue (secs. 895.46 and 893.82, Wisconsin Statutes), and not through an insurance carrier. The statements below are interpretations of the statutes based on case law, plain language of the statutes, and , where there is no case law, informal interpretations of the statutes by the Attorney General’s Office.
State Coverage for Preceptors and Volunteer Clinical Instructors of the School of Pharmacy
General statement: Preceptors and volunteer clinical instructors should rely on their own insurance policies to protect them because, in almost all cases, the professional liability claims will be against them in their capacity as the patient’s pharmacist. For such pharmacy practice, these pharmacists are not agents of the State.
Provision of a legal defense: Sec. 895.46 provides a defense by the Attorney General’s Office where the preceptor or volunteer clinical instructor is the subject of a claim or suit for actions taken by him or her: (1) in supervising the student, or (2) in permitting or arranging for the student to dispense drugs to a patient (negligent supervision). In the past, insurance carriers for the licensed professional have often declined to assert this defense, but that is wholly the decision of the carrier. Previously, the Attorney General has agreed to defend such licensed professionals, where the statutes authorize it. The costs of defense may be significant, including attorney’s fee, witness fees and other costs.
Liability coverage for the costs of a judgement or settlement: Sec. 895.46 provides that judgments against State employees or agents acting within the scope of their employment or agency will be paid by the State where the judgment is in in excess of any other insurance applicable to the State employee or agent. Because all preceptors and volunteer clinical instructors carry their own professional liability insurance policies, those policies will likely be the primary coverage.
Assertion of the notice of claim defense and recovery limit on behalf of the preceptor or volunteer clinical instructor: The Attorney General’s Office has advised the University that it will assert these defenses on behalf of the preceptor or volunteer faculty member where the licensed professional is an agent of the State with respect to the act complained of. These defenses should also be asserted by the professional liability carrier whenever the carrier defends the preceptor or volunteer faculty member for claims or suits arising from the licensed professional’s supervision of the student. The patient plaintiff may argue he/she had no opportunity to know that the preceptor or volunteer faculty member was an agent of the School of Pharmacy at the time the alleged negligent act occurred. This area of the law (regarding applicability of these defenses to volunteer faculty) has not been litigated.
State Coverage of Pharmacy Students in the School of Pharmacy Preceptorship and Clinical Pharmacy Programs
General statement: It is the intent of the School of Pharmacy and the University that liability coverage will be provided by the State for all cases in which pharmacy students, acting within the scope of their agency, are the subject of a claim or suit as a result of their activities in training situations.
Provision of a legal defense: Pharmacy students dispensing drugs to patients under the supervision of a preceptor or volunteer clinical instructor are considered by the School of Pharmacy, the University, and the Attorney General’s Office to be agents of the State while providing such care. Sec. 895.46 provides a defense by the Attorney General if the student is named in a lawsuit or claim arising out of that care.
Liability coverage for the costs of a judgement or settlement: Because students normally carry no other liability insurance, the statutory liability coverage is considered the primary coverage for the student.
Notice of claim defense and statutory recovery limit for the student: These defenses will be asserted on behalf of the student where applicable on the facts of the case. The application of these defenses to students has not been litigated.
If an incident occurs where the preceptor or volunteer clinical instructor believes there may be joint and several liability between him/her and the student, the preceptor or volunteer clinical instructor, to protect his/her right to make a claim for contribution against the student, should file a notice of claim pursuant to the requirements of Sec. 893.82. This statute requires a notice of claim to be filed within 180 days of the event causing injury, or notice of the event causing injury.
If there are questions about any of the above explanations, please call the UW-Madison Office of Administrative Legal Services (608-263-7400).