Scope of the Phrase “Professional Services” – Massachusetts 

O’Connor v. MAG Mutual Ins. Co.
--- N.E.3d ----, 2026 WL 2274608 (Mass. Aug. 7, 2026)

The Massachusetts Supreme Judicial Court addressed whether a medical professional liability insurer was obligated to provide regulatory defense coverage under a policy’s limited regulatory defense provision for an administrative proceeding brought by the Massachusetts Board of Registration in Medicine (Board). The appellate court vacated the Superior Court’s judgment in favor of the insurer and held that the insurer’s duty to provide regulatory defense coverage was triggered where at least one allegation in the operative complaint arose out of a patient complaint about the insured physician’s professional activities.

The insured physician, Dr. William E. O’Connor (O’Connor) purchased a medical professional liability insurance policy (policy) from MAG Mutual Insurance Company (MAG Mutual). The policy required the insurer to provide limited regulatory defense coverage, defined as “[d]efense costs for any ... administrative proceeding brought against [the insured] by a licensing board ... or regulatory authority which arises out of” either “a covered claim” 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.” The term “professional services” was not defined in the policy.

In December 2019, the husband of O’Connor’s former patient filed a complaint with the Board. The complaint alleged that O’Connor had stalked the patient, left harassing voicemail messages, stolen her mail, surveilled and trespassed onto her property, and violated an abuse prevention order. The complaint also alleged that O’Connor had prescribed an addictive medication to the patient for approximately six years when her primary care physician would no longer do so due to concerns about the drug’s addictive nature. In February 2020, the Board’s complaint counsel filed a motion for summary suspension of O’Connor’s certificate of registration.

MAG denied coverage, contending that the Board's proceedings did not arise out of a covered claim or a patient complaint about the physician’s professional activities. The insurer argued that the allegations of criminal conduct — stalking, trespass and theft — did not relate to any professional services provided to the patient. Regarding the prescription allegation, MAG asserted that prescribing the addictive medication could constitute a violation of laws that do not govern the standard of care in O’Connor’s medical practice, thereby falling outside the definition of professional activity.

The appellate court applied the standard used in duty-to-defend cases, concluding that MAG’s obligation is triggered if the underlying allegations are reasonably susceptible to an interpretation that they include conduct covered by the policy’s terms. The appellate court agreed with the insurer that the criminal conduct allegations —stalking, harassing voicemail messages, stealing mail, surveilling property, and trespassing — did not constitute professional services because none of those actions required membership in the medical profession or involved rendering patient care. However, the appellate court held that the allegation regarding the prescription of addictive medication required a different result.

The appellate court reasoned that prescribing medication is an act requiring membership in the medical profession and the possession of special learning, and that prescribing controlled substances while rendering patient care requires the physician to apply specialized knowledge. Because the operative complaint could be read to allege that O’Connor was rendering care to the patient at the time he prescribed the medication —and because a fair inference from the allegations was that the patient was potentially harmed by the continued prescription of a drug that another physician deemed too addictive — the appellate court concluded that the prescription allegation involved a professional service.

Applying the broad standard for duty-to-defend analyses, the appellate court held that the insurer was obligated to provide regulatory defense coverage for the entire proceeding, including the allegations of criminal conduct that did not independently constitute professional services.

By: Joshua LaBar