40-3408. Liability of insurer or self-insurer for injury or death arising out of act or omission of healthcare provider, limitation; fund coverage excess over liability insurance coverage; permissive exclusions from coverage. (a) For a claim for personal injury or death arising out of the rendering of or the failure to render professional services by a healthcare provider, the insurer of a healthcare provider covered by the fund or self-insurer shall be liable only for the amount of basic coverage in effect on the date of the incident giving rise to the claim, subject to an annual aggregate amount of not less than three times the primary amount for all such claims against the healthcare provider. If any liability insurance in excess of such amounts is applicable to any claim or would be applicable in the absence of this act, any payments from the fund shall be excess over such amounts paid, payable or that would have been payable in the absence of this act.

(b) If any inactive healthcare provider has liability insurance in effect that is applicable to any claim or would be applicable in the absence of this act, any payments from the fund shall be excess over such amounts paid, payable or that would have been payable in the absence of this act.

(c) Notwithstanding anything in article 34 of chapter 40 of the Kansas Statutes Annotated, and amendments thereto, to the contrary, an insurer that provides coverage to a healthcare provider may exclude from coverage any liability incurred by such provider:

(1) From the rendering of or the failure to render professional services by any other healthcare provider who is required by K.S.A. 40-3402, and amendments thereto, to maintain professional liability insurance in effect as a condition to rendering professional services as a healthcare provider in this state; or

(2) based upon or relating to the healthcare provider's sexual acts or activity, but in such cases the insurer may provide reasonable and necessary expenses for attorney fees incurred in defending against such claim. The insurer may recover all or a portion of such expenses for attorney fees if an adverse judgment is returned against the healthcare provider for damages resulting from the healthcare provider's sexual acts or activity.

(d) The fund shall not be liable for payment of any claim excluded by an insurer pursuant to this section or any claim otherwise excluded from coverage under a healthcare provider's professional liability insurance.

(e) Notwithstanding any provision of article 34 of chapter 40 of the Kansas Statutes Annotated, and amendments thereto, to the contrary, an insurer that provides coverage to a healthcare provider may exclude from coverage:

(1) Any liability incurred by such healthcare provider as a result of professional services rendered as a charitable healthcare provider; or

(2) any liability incurred by such healthcare provider that is covered under the federal tort claims act pursuant to chapter 171 of title 28 of the United States code.

History: L. 1976, ch. 231, § 8; L. 1984, ch. 238, § 5; L. 1986, ch. 229, § 30; L. 1990, ch. 174, § 3; L. 1997, ch. 134, § 4; L. 2014, ch. 56, § 12; L. 2017, ch. 35, § 3; L. 2021, ch. 108, § 15; July 1.