Abusing Ex-Wife is Not a Physician’s Service

Obtaining Ex-Wife’s Medical Records to Harass Not a Professional Service

Divorce causes people to act in ways they would never act in normal interaction between a man and a woman. People in a divorce give up common morality and become vicious to the point of additional litigation after the divorce is final.

In Medical Mutual Insurance Company Of Maine v. Douglas Burka, No. 17-1872, United States Court of Appeals For the First Circuit (August 10, 2018) Douglas Burka, a physician, was sued by his ex-wife n state courts in Maine and Maryland. Following Burka’s request for a defense from his professional liability insurer, Medical Mutual Insurance Company of Maine (“MMIC”), MMIC brought a declaratory judgment action seeking to establish that it has no duty to defend Burka in either state proceeding.


At the core of the coverage dispute are allegations that Burka improperly accessed his wife’s medical records during their deteriorating, and ultimately failed, marriage. In the state-court complaints, Burka’s now ex-wife, Allison Cayne, claims that Burka used his status as a doctor to obtain her records so he could harass and embarrass her.

The district court granted the declaratory judgment for MMIC, concluding that the claims against Burka in both lawsuits fell outside the professional liability coverage provided by the MMIC policy (“the Policy”).

In Maine, the duty to defend arises if that comparison, with the complaint read broadly in conjunction with the policy reveals the existence of any legal or factual basis that could potentially be developed at trial and result in an award of damages covered by the terms of the policy.

Burka claimed accessing medical records, as he was alleged to have done, constitutes a “professional service” within the scope of the Policy’s coverage.

To set the stage, and explain why lawsuits were filed in two states, the First Circuit noted that Burka and Cayne moved from Tennessee to Maine in 2013 and, in 2015, as their marriage was collapsing, they both relocated independently to Maryland. Cayne’s parents are longtime residents of Maryland.

The Maryland and Maine Lawsuits

Cayne and her parents filed a complaint against Burka and his father, Dr. Steven A. Burka, in Maryland state court. The complaint alleges, in relevant part, that both during his marriage to Cayne and after their separation around April 2015, Douglas Burka engaged in a campaign to access Allison’s medical records to learn about her mental and gynecological health and other confidential medical information. Specifically, the complaint alleges that Burka conspired with his father in the spring of 2015 to improperly access Cayne’s medical records at hospitals in the Washington, D.C. area for the purpose of harassing and embarrassing her and to gain advantage in their pending divorce litigation.

The Maryland complaint refers to allegedly improper actions taken by Burka in Maine.

In Maine, the operative amended complaint alledged, in relevant part, that Burka had accessed Cayne’s medical records “at Southern Maine Healthcare” without authorization while he was employed as a doctor in that practice during the spring of 2015. Although the complaint does not specifically identify Cayne as a patient of an SMHC doctor or the practice, that status is an inevitable inference from the allegations that Burka accessed her confidential healthcare information maintained there.

The MMIC Policy

The Policy identifies SMHC Physician Services, P.A. (“SMHC”) as the named insured, and it includes a “Slot Policy Endorsement” that extends coverage to “all individual physicians listed on the SCHEDULE OF SLOTS ENDORSEMENT and working as employees or contractors of the NAMED INSURED

The District Court Proceedings

The district court issued two separate rulings on MMIC’s declaratory judgment claim. In its initial ruling, the court held that MMIC had no duty to defend the Maryland action, noting that it could discern no potential for coverage under the Policy. The court observed that the claims in the Maryland action are not based on Burka’s conduct in Maine, and the Policy covers only “professional services” furnished by physicians working within the scope of their duties for SMHC. Although the court acknowledged some ambiguity in the definition of ‘professional services’ in the Policy, it concluded that there is no potential that facts will be developed at trial that would connect Dr. Burka’s provision of ‘professional services’ under the Policy, however that term is defined, with the alleged conspiracy to access Allison’s medical records at Washington, D.C.-area medical facilities seemingly unaffiliated with SMHC at a time when Allison was no longer living in Maine.

The court explained its conclusion, in part, as follows: “Simply put, there is no ambiguity that the provision of professional services is a central component of any covered claim. Further, any common understanding of “professional services” would not encompass a physician maliciously and surreptitiously accessing a patient’s medical records for the sole purpose of harassing, threatening, or embarrassing that patient based on a spousal relationship.”

It is undisputed in this case that coverage — and thus the duty to defend — turns on whether Burka’s alleged access to the Caynes’ medical records could potentially fall within the Policy’s definition of “professional services.” That is so because the Slot Policy Endorsement, which extends the Policy to named physicians, states that coverage is provided for claims arising from incidents that “result from [the covered physicians’] PROFESSIONAL SERVICES rendered within the scope of their duties as a physician employee or contractor of” SMHC. No other Policy provision broadens the coverage beyond “professional services,” and, indeed, the Policy is identified as a “Physicians Comprehensive Professional Liability Insurance Policy.” (Emphasis added.)

The First Circuit found no ambiguity in the scope of coverage for claims based on the “professional service” of “maintain[ing] PATIENT confidentiality in the handling of PATIENT records.” The only reasonable interpretation of the Policy’s provisions is that an insured’s alleged mishandling of patient records is covered only if that behavior occurred “in the direct course” of the insured’s provision of healthcare services to the patient claiming the breach

The coverage question becomes whether the allegations in the complaints present “any potential factual or legal basis” for a finding that Burka improperly accessed or disclosed Cayne’s records at SMHC in the direct course of providing her healthcare services. The question is not whether Cayne was a patient of any doctor at SMHC, but whether Burka’s alleged mishandling of records stemmed from his own provision of healthcare services to her.

Under the affirmative terms of the Policy, coverage depends on whether the allegedly improper access to, and disclosure of, Cayne’s medical records occurred in the course of professional services — specifically, healthcare services — provided by Burka to Cayne. The duty to defend Burka thus requires a relationship of doctor to patient that is emphatically denied by the complaint’s allegations and, hence, could only be “conjure[d] . . . from speculation or supposition.”

The First Circuit will not consider facts extrinsic to the underlying complaint nor will it read allegations into the complaint in determining whether the insurer has a duty to defend.

MMIC is not obligated to defend Burka in the Maine action.


Since the court was required to apply the four corners rule and could only make its decision on coverage from the allegations of the complaints and the wording of the policy it became clear, that since the ex-wife was not a patient of Dr. Burka, his actions obtaining and publishing her medical records could not possibly be the result of his professional services.  The lesson he learned is it is best to be nice to your ex-wife because an insurer will not help you.

© 2018 – Barry Zalma

This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States.  The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant  specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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