New York Codes, Rules and Regulations › Title 11 - INSURANCE › Chapter III - Policy and Certificate Provisions › Subchapter B - Property and Casualty Insurance › Part 70 - Medical Malpractice Insurance Rate Modifications, Provisional Rates, Required Policy Provisions And Availability Of Additional Coverages › Section 70.13 - Occurrence policies for physicians

Current through Register Vol. 46, No. 28, July 10, 2024
(a) Pursuant to chapter 266 of the Laws of
				  1986, as amended by chapter 208 of the Laws of 1987, sections 3436 and
				  5504  of the
				  Insurance Law required every insurer that issued or renewed policies for
				  primary levels of medical malpractice insurance covering physicians licensed to
				  practice in this State and the Medical Malpractice Insurance Association (MMIA)
				  to issue such policies solely on a claims-made basis, as prescribed by the
				  superintendent by regulation. Those sections also provided that occurrence
				  policies could be issued or renewed for insureds who currently purchased
				  occurrence policies from an admitted insurer, the MMIA, or a voluntary
				  attending physician (Channeling) program previously permitted by the
				  superintendent.
(b) Chapter 381 of
				  the Laws of 1991 amended section 3436, effective July 15, 1991, to permit the
				  issuance or renewal of medical malpractice insurance policies covering
				  physicians on a claims-made or an occurrence basis, as prescribed by the
				  superintendent by regulation. Section 5504, which applies to policies issued by
				  MMIA, was similarly amended by chapter 256 of the Laws of 1993.
(c) It has become apparent that there are
				  medical practice situations where claims-made coverage has proven impractical
				  or unworkable. Among these are short-term coverage situations involving
				  seasonal employment or substitute doctors; physicians employed by nonmedical
				  businesses; and group practices with physician turnover in fixed positions,
				  sometimes referred to as "slotting". In addition, questions have been raised
				  whether physicians insured on an occurrence basis who temporarily interrupt
				  their practice, such as for maternity or military leave, or to take advanced
				  courses, could obtain occurrence coverage upon resuming practice. It has also
				  become apparent that many physicians, even if not concerned with these special
				  situations, prefer to be insured on an occurrence basis. Further, many of the
				  facilities that grant privileges to physicians also prefer that they be insured
				  on an occurrence basis.
(d) After
				  considering the advantages and disadvantages of both the claims-made and
				  occurrence forms of coverage, the superintendent has determined that both forms
				  of coverage should be available to physicians.
(e) In making this determination, however,
				  the superintendent is also aware that since the introduction into New York of
				  the claims-made form of coverage for physicians in 1982, some insurers have
				  elected to provide such coverage solely on a claims-made basis or solely on an
				  occurrence basis for some or all classes of physicians. Accordingly, while the
				  choice of type of coverage should generally rest with the insured physician,
				  the continued availability of coverage to certain classes of physicians will be
				  enhanced by permitting insurers which, prior to the enactment of chapter 381,
				  chose to provide coverage to some or all classes solely on a claims-made or
				  solely on an occurrence basis, to continue to do so.
(f) Every insurer that issues or renews
				  policies for primary levels of medical malpractice insurance covering
				  physicians licensed to practice in this State shall:
(1) notify each insured, at least 60 (45 in
				  the case of MMIA) but not more than 120 days prior to the first renewal after
				  this section's effective date [October 22, 1991], and each applicant for
				  coverage, of the availability of coverage on both a claims-made and an
				  occurrence basis; and
(2) issue or
				  renew such policies on a claims-made or an occurrence basis as requested by the
				  insured.