Is a doctor entitled to recover from his insurer for costs incurred defending against a patient's claim?

10 In Hartogs v. Employers Mut. Ins. Co. of Wis. (Sup.Ct.1977) 89 Misc.2d 468, 391 N.Y.S.2d 962, 964, a case arising out of similar facts, the court observed that "[a] distinction should be drawn in a factual situation such as this between medical malpractice in the mind of the patient and medical malpractice in the mind of the doctor. Plainly when the patient submitted [to the doctor's acts] she believed that appropriate medical therapy was being administered. Only some time thereafter did she discover that she had been duped, the victim of fraud and subterfuge. On the other hand, the doctor administering the 'treatment' at all times knew, and has so stated in the previous trial and on this motion, that what he was doing was in no way pursuant to the doctor-patient relationship. The obvious purpose was to permit him to accomplish his personal satisfaction. [p] The distinction to be drawn between the injured party and the insured is clear. No longer is it the law in this state 'that the liability policy existed solely for the protection of the insured' [citation]. The courts recognize that the injured person also is to be protected." Accordingly, while the court indicated that the injured patient had properly recovered for her injuries from the insurer, it concluded that the doctor was not entitled to be reimbursed by the insurer for costs he had incurred in defending against the patient's claim. "[A]s between the [doctor] and his insurer those actions could not constitute malpractice and were never intended to be included within the protective coverage of the malpractice policy." (Id. 391 N.Y.S.2d at p. 965.)