Request By:
Mr. Robert W. Riley
General Counsel
Department for Human Resources
275 East Main Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General as to under what circumstances the Commonwealth may defend and indemnify the full-time physician employees of the Department for Human Resources in actions against them on allegations of malpractice within the scope and course of their employment. You particularly ask what effect the State Employees' Defense Act, KRS 12.211 - 12.215, has upon this matter.
It is the opinion of the Attorney General that the State Employees' Defense Act is intended to provide defense only in actions against state employees for their acts or omissions of a discretionary nature. We hold that the act provides no defense or indemnification for negligence torts or suits for injury arising from mechanical or ministerial negligence. We further believe that actions for malpractice are of such a nature and are therefore not encompassed within the provisions of KRS 12.211 - 12.215.
The Kentucky Board of Claims Act, KRS 44.070 - 44.160, provides a limited waiver of immunity whereby parties may be compensated for the negligence of state employees. When state employees are sued personally in the civil courts for negligence, it is necessary that they provide their own defense through private counsel. The only exception to this would be in a case where the head of the employing department believes that the state has an interest in the outcome of the litigation to the extent that defense should be provided through staff counsel or contract attorneys. In such a case there would be no legal obligation on the part of the state to indemnify the employee for any money judgment against him.
Malpractice insurance carried by physician employees of the state is therefore most advisable.