Session Laws

Whereas, The deferred operation of this act would tend to defeat its purpose, which is to immediately assure the continued availability of professional liability insurance for health care professionals, it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. The seventh paragraph of section 8E of chapter 26 of the General Laws, as appearing in the 1992 Official Edition, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- The commissioner is authorized to make an assessment against medical malpractice insurers licensed, admitted, authorized or approved by the commissioner to pay for the rating bureau's expenses as they relate to medical malpractice insurance.

SECTION 2. Said seventh paragraph of said section 8E of said chapter 26, as so appearing, is hereby further amended by adding the following sentence:- The assessments authorized under this paragraph shall be allocated on a fair and reasonable basis among all medical malpractice insurers licensed, admitted, authorized or approved by the commissioner.

SECTION 3. Said chapter 26, as so appearing, is hereby further amended by striking out section 8I and inserting in place thereof the following section:-

Section 8I. There shall be established within the division a medical malpractice analysis bureau which shall analyze and collect data and advise the commissioner on requests filed by a medical malpractice insurer licensed, admitted, authorized or approved by the commissioner for changes in risk classifications, premiums, rates and such other matters as may be reviewed or approved by the commissioner. Said bureau may employ at least the following persons: an actuary, an attorney, a person with expertise in the area of health care systems and policies, two senior actuarial assistants and such secretarial and clerical assistance as may be necessary to carry out the purposes of this section. The commissioner shall appoint all employees of said bureau who shall be exempt from the provisions of section nine A of chapter thirty and chapter thirty-one and shall serve at the pleasure of the commissioner.

The commissioner is hereby authorized to make and collect an assessment against medical malpractice insurers licensed, admitted, authorized or approved by the commissioner to pay for the expenses of said bureau. Said assessment shall be made at a rate sufficient to produce five hundred thousand dollars annually. In addition to said amount, the assessment shall also include an amount, to be credited to the General Fund, equal to the total amount of funds estimated by the secretary for administration and finance to be expended from the General Fund for indirect and fringe benefit costs attributable to the personnel costs of said bureau; provided, however, that if the commissioner shall fail to expend for the costs and expenses of said bureau in any fiscal year the total amount of five hundred thousand dollars for the purposes set forth in this section, any amount unexpended in such fiscal year shall be credited against the assessment to be made in the following year, and the assessment in the following year shall be reduced by such unexpended amount. The assessment shall be allocated on a fair and reasonable basis among all medical malpractice insurers licensed, admitted, authorized or approved by the commissioner. The funds produced by said assessments shall be expended by the division, in addition to any other funds which may be appropriated, to assist in defraying the general operating expenses of said bureau, and may be used to compensate consultants retained by said bureau. A medical malpractice insurer licensed, admitted, authorized or approved by the commissioner shall pay the amount so assessed against it within thirty days after the date of the notice of assessment from the commissioner.

SECTION 4. Chapter 175 of the General Laws, as appearing in the 1992 Official Edition, is hereby amended by inserting after section 193T, the following new section:-

Section 193U. Every medical malpractice insurer shall make available to every eligible health care provider every medical malpractice insurance coverage which it provides to any eligible health care provider; provided, however, that only a medical malpractice insurer may cede any medical malpractice insurance policy issued to an eligible health care provider to the Massachusetts medical malpractice reinsurance plan.

No medical malpractice insurer shall discriminate against any eligible health care provider based upon the specialty practiced by health care providers within such category; provided, however, that nothing herein shall prohibit a medical malpractice insurer from establishing reasonable classifications of risks and premium charges based upon the relative risk associated with practice in a particular specialty. If, after a hearing, the commissioner determines that a medical malpractice insurer has discriminated against any eligible health care provider in violation of this section, the commissioner shall take such action as is necessary to eliminate the effect of the discrimination and to prevent further violations, including, without limitation, the suspension or revocation of the medical malpractice insurer's license, admission, authorization or approval to write medical malpractice insurance on risks within the commonwealth.

For purposes of this section, the following words shall have the following meanings:-

"Eligible health care provider," any category of health care provider that was authorized to obtain medical malpractice insurance from the joint underwriting association established by section six of chapter three hundred and sixty-two of the acts of nineteen hundred seventy-five as of December thirty-first, nineteen hundred and ninety-four.

"Health care provider", a doctor of medicine, osteopathy or dental science licensed under the provisions of chapter one hundred and twelve of the General Laws, an intern, fellow or medical officer licensed under the provisions of section nine of said chapter one hundred and twelve or a licensed hospital or clinic and its agents and employees.

"Medical malpractice insurer," any corporation or association that is licensed, admitted, authorized or approved and that has received a certificate of authority from the commissioner to write medical malpractice insurance on risks within the commonwealth on a direct basis. The term "medical malpractice insurer" shall not include: (i) a corporation or other entity that is formed under the laws of any jurisdiction other than a state of the United States or the District of Columbia and that is engaged in writing (a) medical malpractice insurance for the members, shareholders or owners of such corporation or other entity, including affiliates of such members, shareholders, owners and persons employed by, affiliated with or providing professional services to such members, shareholders, owners or affiliates, and any servicing carrier thereof; or (b) reinsurance on medical malpractice insurance written by a fronting company for the members, shareholders or owners of such corporation or other entity, including affiliates of such members, shareholders or owners and persons employed by, affiliated with or providing professional services to such members, shareholders, owners or affiliates, and any servicing carrier thereof; (ii) a trust maintained by the University of Massachusetts to self fund medical malpractice risks; or (iii) a risk retention group, as that term is defined in the Liability Risk Retention Act of 1986, 15 U.S.C. 3902, as amended from time to time, which is affiliated or under common ownership or control with a corporation or other entity described in subparagraphs (i) or (ii) of this sentence or which insures the risks of those members, shareholders, owners, affiliates or persons described in subparagraph (i) of this sentence.

"Massachusetts medical malpractice reinsurance plan," the nonprofit entity known as the medical malpractice reinsurance plan as approved by the commissioner.

SECTION 5. Section 5A of chapter 175A of the General Laws, as so appearing, is hereby repealed.

SECTION 6. Said chapter 175A, as so appearing, is hereby further amended by striking out section 5C, as inserted by section 1 of chapter 667 of the acts of 1989, and inserting in place thereof the following section:-

Section 5C. (a) (1) The medical professional mutual insurance company approved by the commissioner is hereby authorized to establish an experience review plan for all physicians insured by it. Such experience review plan shall be administered by an experience review committee established by the insurer. The said committee (i) shall consist of an even number of standing voting members, not to be less than six; and (ii) shall include physicians licensed to practice in the Commonwealth as one-half of the standing voting members. The said committee shall include as physician members only physicians appointed by the insurer from a list of nominees provided by the Massachusetts medical society, which nominees shall not all be members of said Massachusetts medical society. An additional representative of the medical professional mutual insurance company may sit as a member of the committee but shall vote only in the event of a tie vote of the other members.

(2) Said committee is hereby authorized to review the medical malpractice claim experience of insured physicians and any other relevant information obtained by the medical professional mutual insurance company through its risk management or underwriting activities. The purpose of this review is for the committee to determine, on the basis of the physician's experience, whether remedial action may reduce the possibility that the physician's practice may result in future incidents of medical malpractice, and, if so, to implement the remedial action or actions which the committee determines are indicated. If the committee determines remedial action should be implemented, it shall implement secondary remedial actions only if the committee determines (i) that primary remedial action has not or is unlikely to reduce the possibility that the physician's practice may result in future incidents of medical malpractice, or (ii) that the physician has failed or refused to comply with remedial actions implemented by the committee. Primary remedial actions are those listed in subsection (a)(3) which are not designated secondary remedial actions, and remedial actions not listed in paragraph (3) which are not designated secondary when approved for use by the commissioner. Secondary remedial actions are those listed in clauses (vi), (vii) and (viii) of said paragraph (3); similarly stringent actions not listed shall be designated secondary remedial actions when approved for use by the commissioner. In determining whether to impose remedial action, and in determining the remedial action or actions to be imposed, the experience review committee shall make its determinations solely with reference to this subsection, which is the complete and exclusive standard for such determinations by the experience review committee.

(3) The said committee is authorized to recommend and implement remedial action as provided in this subsection with respect to an insured whose medical malpractice claim experience has been reviewed. The following committee remedial actions are hereby authorized: (i) consultation with the medical professional mutual insurance company's risk management staff; (ii) audits by the medical professional mutual insurance company's risk management staff; (iii) required additional education, including residency or other training programs; (iv) ineligibility for risk management, limited practice or other applicable medical malpractice insurance discounts; (v) required consultation with or supervision by another physician; (vi) restriction of coverage to exclude coverage for a particular specialty, procedure, or medical setting; (vii) imposition of a co-payment with respect to claims asserted against the physician involving a particular specialty or procedure; provided, however, that in no event shall the committee established by the medical professional mutual insurance company impose a co-payment which is less than a minimum set out in the experience review plan or more than fifty percent per claim or in excess of fifty thousand dollars per claim for any co-payment; (viii) imposition of added charges; provided, however, that in no event shall the committee established by the medical professional mutual insurance company impose an added charge on an insured less than a minimum set out in the experience review plan or more than fifty percent of the insured's total limits premium; and (ix) any other remedial action as the commissioner may approve which is consistent with the provisions of this section. In the event the experience review committee adopts a remedial action of a type not specified in the experience review plan, the committee shall, at least thirty days before the effective date of such remedial action, advise the commissioner of the particular terms of the proposed remedial action and indicate how it is consistent with this section. Unless the commissioner disapproves the proposed remedial action before it goes into effect, such remedial action shall be deemed approved.

(4) Prior to adopting any remedial action with respect to an insured, the committee shall provide written notice to the insured of remedial action determined by it, the reasons supporting the committee's determination, and the commencement date for the remedial action, which shall not be less than thirty days from the date of the notice. The notice shall advise the insured that he may meet with the committee to obtain a further explanation of the committee's determination and to respond to the determination, and shall specify the time within which such a meeting may be requested, which shall not be less than ten business days from the insured's receipt of the notice. If the insured does not request a meeting with the committee within the time specified, he shall be deemed to have accepted the proposed remedial action, and to have waived his right to further review of the remedial action by the committee or pursuant to paragraph (6). If the insured requests a meeting with the committee, the committee shall hold a meeting prior to implementing any remedial action with respect to the insured.

(5) The medical professional mutual insurance company approved by the commissioner is hereby authorized to issue endorsements to the insured's medical malpractice insurance policy and to take such other action as is necessary to implement the remedial action adopted by said committee. In no event shall the experience review committee established by the medical professional mutual insurance company deny all coverage to a duly licensed physician based upon review under the plan if the company is required to make medical malpractice insurance coverage available to such physician pursuant to section one hundred and ninety-three T of chapter one hundred and seventy-five of the General Laws; provided, however, that the medical professional mutual insurance company may require completion of any recommended remedial actions as a condition of continued coverage. The failure to pay a co-payment or an added charge imposed by the committee shall constitute a failure to pay premium due to the medical professional mutual insurance company which may result in cancellation of insurance or the denial of coverage by the Massachusetts medical malpractice reinsurance plan approved by the commissioner. The medical professional mutual insurance company is authorized to implement remedial actions which shall continue to apply automatically to renewals of the insured's policy as provided in the experience review plan.

(6) Any person aggrieved by a final determination of the committee under this section may, within thirty days from the notice of such final determination, file a complaint in the superior court for the county of Suffolk for a review of such determination. An order of notice returnable not later than twenty days from the filing of such complaint shall forthwith issue and be served upon the medical professional mutual insurance company. Within ten days after the return of said order of notice the complaint will be assigned for a speedy hearing on the merits without a jury. Unless the court orders otherwise, imposition of remedial action by the insurer shall be stayed pending review by the court. The court shall have jurisdiction to modify, amend, annul, reverse or affirm the final determination of the committee, shall review all questions of fact and law involved therein and may make any appropriate judgment. The decision of the court shall be final and conclusive on the parties. The court may make such order as to costs as it deems equitable. The court may make such rules or orders as it deems proper, governing proceedings under this section to secure prompt and speedy hearings and to expedite final decisions thereon.

(7) Within thirty days from the effective date of this section the medical professional mutual insurance company shall file a proposed experience review plan with the commissioner; provided, however, that said insurer which becomes subject to this section more than thirty days after the effective date of this section, shall be required to file a proposed experience review plan within thirty days from the date said insurer becomes subject to this section. The commissioner shall either approve, disapprove or approve with modifications such plan following comment at a public hearing so that the plan is consistent with the requirements of this section. The commissioner shall sign a memorandum approving, disapproving, or approving with modifications the proposed plan in such form as he may prescribe within sixty days of the filing of such plan by the medical professional mutual insurance company and file the same in his office and cause a duly certified copy of such memorandum to be transmitted forthwith to the insurer and other parties to the public hearing. Any person who participates in the public hearing and who is aggrieved by the decision of the commissioner may, within twenty days from the filing of such decision thereof in his office, file a complaint in the supreme judicial court for the county of Suffolk for a review of such action, order, finding or decision. An order of notice returnable not later than seven days from the filing of such complaint shall forthwith issue and be served upon the commissioner. Within ten days after the return of said order of notice, the complaint shall be assigned for a speedy and summary hearing on the merits. The action, order, finding or decision of the commissioner shall remain in full force and effect pending the final decision of the court unless the court or a justice thereof after notice to the commissioner shall by a special order or otherwise direct. The court shall have jurisdiction to modify, amend, annul, reverse or affirm such action, order, finding or decision, shall review all questions of fact and of law involved therein and may make any appropriate judgment. The decision of the court shall be final and conclusive on the parties. The court may make such order as to costs as it deems equitable. The court shall make such rules or orders as it deems proper, governing proceedings under this section to secure prompt and speedy hearings and to expedite final decisions thereon.

(8) Except as otherwise indicated in this section, any modifications to or termination of the experience review plan previously approved by the commissioner shall be subject to the following:

(i) The approved experience review plan shall continue indefinitely until terminated or modified; provided, however, that an approved plan may contain a self-termination provision.

(ii) Starting on July first, nineteen hundred and ninety-two, and on July first of every even-numbered year thereafter, the commissioner may, if he issues a request for public comment before September fifteenth of the preceding year, undertake a review of any experience review plan previously approved by him. Following such a request, he shall terminate such plan unless he finds it in accordance with this section.

(iii) Starting on August first, nineteen hundred and ninety-one, and on August first of every odd-numbered year thereafter, any party interested in the experience review plan previously approved by the commissioner, including the medical professional mutual insurance company to which the plan applies, may submit proposed changes in the plan to the commissioner and the insurer whether or not public comment is formally requested under subparagraph (ii). In addition to stating the revised language of the plan, such a proposal shall contain supporting documents and discuss the reasons for the proposed changes. Only portions of a plan for which changes have been so proposed are subject to revision. After comment at a public hearing, the commissioner shall either maintain the plan in effect without change, terminate the plan, or adopt modifications to one or more portions of the plan for which changes have been proposed. Any such modifications to the plan shall be consistent with the requirements of this section, and shall not be implemented before July first of the year following the submission of the proposed change. A modification to the medical professional mutual insurance company's plan proposed by a party other than said insurer may be approved only if, on the basis of all of the materials and information which are in the record of the public hearing, the record demonstrates that the modification will the first sentence improve the effectiveness of the previously approved plan in carrying out the purposes of this section, and that such improvements will not cause costs or administrative burdens to the insurer or its policyholders which are unreasonable in relation to the benefits of the improvements.

(iv) If the commissioner and the medical professional mutual insurance company agree on a proposed change, the proposed change may be made at any time, following public notice and an opportunity for comment, to become effective upon the commissioner's order.

(v) Decisions under subparagraph (ii) to (iv), inclusive, shall be subject to judicial review in the supreme judicial court as provided in paragraph (7).

(9) There shall be no liability on the part of, and no cause of action of any nature shall rise against, the commissioner or his authorized representatives for any statements made in good faith by them in any report or communications concerning matters covered by this section.

(10) No experience review committee, medical professional mutual insurance company, individual or institution reporting, providing information, opinion, counsel or services to the experience review committee or participating in the procedures required by this section or any experience review plan approved hereunder, shall be liable in a suit for damages or subject to a cause of action of any kind by reason of having furnished such information, opinion, counsel or services or by reason of such participation; provided, however, that such individual or institution acted in good faith with a reasonable belief that said actions were warranted in connection with or in furtherance of the functions of the experience review committee or the procedures required by this section or the experience review plan approved hereunder.

(b)(1) The proceedings, records and reports of the experience review committee established pursuant to this section shall be confidential and treated as described in paragraphs (2) to (9), inclusive. The records and report described in paragraphs (5) and (6) shall be exempt from disclosure as public records pursuant to section seven of chapter four of the General Laws.

(2) Except in connection with an appeal provided in paragraph (6) of subsection (a), or a suit against any individual or institution to establish a cause of action pursuant to paragraph (10) of said subsection (a), documents identified in paragraphs (1), (5) and (6) of this subsection shall not be subject to subpoena or discovery, or introduced into evidence in any medical staff proceeding or administrative proceeding or in any judicial action; provided, however, that documents, reports or records otherwise available from original sources shall not be immune from subpoena, discovery or use in any judicial or administrative proceeding merely because they were presented to an experience review committee in connection with its proceedings. A court or administrative body may place reasonable restriction on the use which may be made of the information to which subsection (b) applies, including any decision rendered as the first sentence provided in paragraph (6) of subsection (a), so as to maintain so far as necessary or practicable the confidentiality of such information.

(3) Except in connection with an appeal provided in paragraph (6) of subsection (a), or a suit against any individual or institution to establish a cause of action pursuant to paragraph (10) of said subsection (a), no person who was in attendance at the meeting of an experience review committee shall be permitted or required to testify in any medical staff proceeding or administrative proceeding or in any judicial action as to the committee's or any member's findings, recommendations, evaluations, opinion, deliberations or other actions.

(4) A person who provides information to the experience review committee or who is a member of the committee shall not be prevented from testifying as to matters known to such person independent of the committee's proceedings; provided, however, that such person may not be questioned in any proceedings about the identity of any person furnishing information or opinions to the committee, opinions formed by the testifying person as a result of such committee proceedings, or about the deliberations of the experience review committee.

(5) In the event of an appeal under paragraph (6) of subsection (a), the record on appeal shall be confidential and treated as provided in paragraph (2) of this subsection.

(6) The medical professional mutual insurance company shall only report to the board of registration in medicine the imposition of voluntary or involuntary remedial actions described in clauses (vi) or (vii) of paragraph (3) of subsection (a). Such person shall be considered confidential information subject to the requirements of section five of chapter one hundred and twelve. Such reports shall also be provided to the medical staff of any hospital or clinic at which such physician has privileges and to members and employed doctors of any partnership or professional corporation of which the insured is a member or employee. Any hospital or clinic receiving such a report may use the report to investigate or review the privileges available to such physician; provided, however, that any such report shall be maintained as confidential by any hospital or clinic and members or employed doctors of any partnership or professional corporation who receive it, and shall be treated as provided in paragraph (2) of this subsection.

(7) On or before September first nineteen hundred and ninety and on or before April first of each year thereafter, the medical professional mutual insurance company shall submit to the division of insurance a list of insureds who have been reviewed under the experience review plan including insureds currently subject to remedial action. Such submission shall set forth each remedial action taken by the committee, if any, and such other information as shall be specified in the plan, consistent with the provisions of this section. Such submissions may be introduced in any hearing pursuant to paragraph (7) of subsection (a); provided, however, that information that identifies an individual physician in this report to the division of insurance shall be maintained as confidential and shall not be made part of any public record or proceeding.

(8) No proceeding, report or record of an experienced review committee obtained hereunder in an appeal pursuant to paragraph (6) of subsection (a), any proceeding or appeal pursuant to paragraph (8) of said subsection (a), any action pursuant to paragraph (10) of said subsection (a), or a report pursuant to paragraph (6) or (7) of this subsection, shall be subject to subpoena or discovery, or introduced into evidence in judicial or administrative proceedings other than proceedings specified in paragraphs (6), (8) and (10) of said subsection (a), and paragraphs (6) and (7) of this subsection.

(9) Nothing in this section shall be deemed to alter or amend any requirements that the medical professional mutual insurance company provide records or information not prepared in connection with the experience review committee to the board of registration in medicine or the commissioner of insurance, including, but not limited to, the reporting requirements set forth in section five C of chapter one hundred and twelve of the General Laws or as otherwise required by law.

(c) As used in this section, the term "medical malpractice insurance" shall mean insurance coverage against the legal liability of the insured for loss, damage or expense incident to a claim rising out of the death or injury of any person as the result of negligence or malpractice in rendering professional services by any doctor of medicine or osteopathy licensed under section two of chapter one hundred and twelve of the General Laws.

SECTION 7. Section 6 of chapter 175A of the General Laws, as so appearing, is hereby amended by striking out the third sentence of subsection (a) and inserting in place thereof the following sentence:-

The commissioner may by order delay the effective date for not more than thirty additional days in any case where he determines such delay is needed to properly examine the filing and any supporting information filed as requested or to permit a hearing thereon; provided further, however, that, if such filing is made by a medical malpractice insurer with respect to medical malpractice insurance, the commissioner may further delay the effective date of such filing for not more than ninety additional days.

SECTION 8. Section 13 of chapter 362 of the acts of 1975, as most recently amended by section 11 of chapter 65 of the acts of 1992, is hereby further amended by striking out the second sentence of said section and inserting in place thereof the following sentence:- Section six of this act shall terminate upon the conversion of the joint underwriting association into the medical professional mutual insurance company.

SECTION 9. The Medical Professional Mutual Insurance Company.

Section 1. As used in this act the following words shall have the following meanings:

"Association," the joint underwriting association established pursuant to section six of chapter three hundred and sixty-two of the acts of nineteen hundred and seventy-five.

"Medical malpractice insurance," insurance coverage against the legal liability of the insured for loss, damage or expense incident to a claim arising out of the death or injury of any person as the result of negligence or malpractice in rendering professional service by any health care provider.

"Medical malpractice insurer," any corporation or association that is licensed, admitted, authorized or approved and that has received a certificate of authority from the commissioner to write medical malpractice insurance on risks within the commonwealth on a direct basis. The term "medical malpractice insurer" shall not include: (i) a corporation or other entity that is formed under the laws of any jurisdiction other than a state of the United States or the District of Columbia and that is engaged in writing (a) medical malpractice insurance for the members, shareholders or owners of such corporation or other entity, including affiliates of such members, shareholders, owners and persons employed by, affiliated with or providing professional services to such members, shareholders, owners or affiliates, and any servicing carrier thereof; or (b) reinsurance on medical malpractice insurance written by a fronting company for the members, shareholders or owners of such corporation or other entity, including affiliates of such members, shareholders or owners and persons employed by, affiliated with or providing professional services to such members, shareholders, owners or affiliates, and any servicing carrier thereof; (ii) a trust maintained by the University of Massachusetts to self fund medical malpractice risks; or (iii) a risk retention group, as that term is defined in the Liability Risk Retention Act of 1986, 15 U.S.C. 3902, as amended from time to time, which is affiliated or under common ownership or control with a corporation or other entity described in subparagraphs (i) or (ii) of this sentence or which insures the risks of those members, shareholders, owners, affiliates or persons described in subparagraph (i) of this sentence.

"Net direct premiums," gross direct premiums written on risks within the commonwealth on medical malpractice, including the medical malpractice insurance component of multiple peril package policies, as computed by the commissioner less all premiums and dividends credited or returned to policyholders of the unused or unabsorbed portions of premiums deposits.

"Health care provider", a doctor of medicine, osteopathy or dental science licensed under the provisions of chapter one hundred and twelve of the General Laws, an intern, fellow or medical officer licensed under the provisions of section nine of said chapter one hundred and twelve or a licensed hospital or clinic and its agents and employees.

"Eligible health care provider," any category of health care provider that was authorized to obtain medical malpractice insurance from the joint underwriting association established by section six of chapter three hundred and sixty-two of the acts of nineteen hundred and seventy-five prior to the effective date of this act.

"Massachusetts medical malpractice reinsurance plan," the medical malpractice reinsurance plan established by section ten of this act.

Section 2. The commissioner of insurance is hereby authorized and directed to approve the conversion of the association and the association is hereby converted into a mutual insurance company to be known as the medical professional mutual insurance company, which shall succeed to and assume all of the assets and liabilities of the association. All rights, interests and properties of the association shall, without any further act or deed, be the property of the resulting mutual company, and the resulting mutual company shall remain bound by all obligations and liabilities of the association including, without limitation, the rights and obligations of the association under the policies of insurance issued by it. No contracts, claims, suits or other rights of or against the association shall be affected by this conversion.

Section 3. The medical professional mutual insurance company shall be authorized to transact any and all kinds of medical malpractice insurance and other lines of insurance for which it may be licensed that relate directly to the delivery of health care services, as the commissioner may approve subject to the restrictions of section forty-eight A of chapter one hundred seventy-five of the General Laws; provided, however, that said company shall not be authorized to issue policies of insurance to a doctor of optometry, podiatry or chiropractic or a registered nurse licensed under the provisions of chapter one hundred and twelve of the General Laws or a licensed nursing home and its agents and employees. Except as provided herein, or in its articles of organization or by-laws, such company shall have all powers conferred upon a mutual insurance company incorporated in the commonwealth. Except as provided herein, such company shall be subject to all provisions of the General Laws which are now or may in the future be applicable to such companies; and provided further that nothing in this act shall diminish the regulatory authority of the commissioner of insurance as set forth in chapter two hundred and twenty-six of the acts of nineteen hundred and ninety-three with respect to such company.

Section 4. The medical professional mutual insurance company shall be governed by a board of directors which shall, notwithstanding any other provisions of law, be constituted and selected in the manner set forth in the company's by-laws. Notwithstanding any other provision of law, the officers of the company shall be authorized on behalf of the board to solicit proxies from the members and to vote such proxies without limitation as to number of votes so cast.

Section 5. Notwithstanding any other provision of any general or special law, the medical professional mutual insurance company shall:

(a) have in lieu of guarantee capital a guaranty fund in an amount as the commissioner shall initially determine. Said guaranty fund shall be considered surplus for the purpose of all provisions of chapter one hundred and seventy-five of the General Laws. Said guaranty fund shall not be subject to the provision of chapter one hundred and seventy-five of the General Laws providing for voting rights by share holders in any such guaranty capital.

(b) not be subject to the provision of sections seventy-three, ninety A, ninety A, ninety-two, ninety-three A and ninety-three B of said chapter one hundred and seventy-five, insofar as they relate to subscriptions for insurance or securing initial applications for insurance;

(c) be authorized to issue nonassessable policies.

Section 6. Upon approval of the commissioner, the medical professional mutual insurance company may for any purposes, including, but not limited to the fixing of separate percentages of dividends under section eighty of chapter one hundred and seventy-five, consider the business of each category of health care provider as a separate line of business; provided further, however, that the doctor of dental science category of insured shall continue to be treated as a separate line of business to the extent required by chapter ninety-two of the acts of nineteen hundred and ninety-one, and any excess surplus of the association, as determined by the commissioner, attributable to the doctor of dental science category of business as of the effective date of the conversion shall be paid as a dividend by the mutual company for the benefit of the association's doctor of dental science policyholders, as of that date. Such policyholders may elect to continue to be insured by the mutual company by assigning said dividend back to the mutual company.

Following the conversion, any excess surplus as determined by the commissioner of the medical professional mutual insurance company allocable to the doctor of dental science category of insureds shall be paid annually as a dividend to those persons, firms and entities entitled thereto. No portion of such excess surplus as determined by the commissioner shall be used or allocated for any other purpose or purposes and upon the payment of such dividend, there shall be no excess surplus allocable to the doctor of dental science category of insureds. The medical professional mutual insurance company shall annually notify each insured under the doctor of dental science category of insureds who or which is entitled to the payment of a dividend.

Section 7. The medical professional mutual insurance company shall be subject to the provisions of chapter one hundred seventy-five A of the General Laws to the extent that those provisions otherwise apply to a mutual insurance company incorporated in the commonwealth.

The medical professional mutual insurance company shall provide written notice and an opportunity for comment, for a period not to exceed forty-five days from the date of such notice, to the Massachusetts medical society, the Massachusetts hospital association, the American College of Nurse-midwives, Massachusetts Chapter, and the Massachusetts dental society prior to (a) making any filing, either directly or through any rating organization, with the commissioner of insurance required by section six of chapter one hundred and seventy-five A of the General Laws which affects the rates or risk classifications applicable to members of that professional association or (b) taking any action with respect to the surplus of the company, subject to the requirements of section five, for which the company's by-laws require an affirmative vote of more than a majority of the directors. The Massachusetts medical society, the Massachusetts hospital association, the American College of Nurse-midwives, Massachusetts Chapter and the Massachusetts dental society are each hereby authorized to provide advice and recommendations to the company regarding such filing or action with respect to surplus and shall be provided with reasonable and timely access to such rate-making data and other relevant information during the period specified herein for comment as is reasonably necessary to provide such advice and recommendations; provided, however, that any information obtained pursuant to this section shall be used solely for the purpose of providing advice and recommendations to the company as authorized in this section. Each such professional association shall use reasonable efforts to assure that any information it obtains pursuant to this section that is designated as proprietary or confidential by the company is not disclosed to any insurer or other entity providing insurance in the commonwealth. If, after a hearing, the commissioner determines that any such professional association has disclosed any proprietary or confidential information obtained pursuant to this section in violation of this section, the commissioner may suspend the authority of such professional association to obtain such information, and may suspend the license or authority of the recipient of any such information to provide insurance in the commonwealth, in each instance for such period as the commissioner determines is appropriate, but in no instance for a period longer than two years; provided, however, that if the commissioner determines that a professional association knowingly or intentionally disclosed proprietary or confidential information to any insurer or entity providing insurance in the commonwealth in violation of this section, the commissioner shall revoke the authority of such professional association to obtain such information in the future and shall revoke the license or authority of the recipient of the information to provide insurance in the commonwealth.

The Massachusetts medical society, the Massachusetts hospital association, the American College of Nurse-midwives, Massachusetts Chapter, and the Massachusetts dental society shall be an organization aggrieved under section seven of chapter one hundred and seventy-five A of the General Laws with respect to any filing that affects its members. The Massachusetts medical society, the Massachusetts hospital association, the American College of Nurse-midwives, Massachusetts Chapter, and the Massachusetts dental society shall each be an authorized representative under section eleven of chapter one hundred and seventy-five A of the General Laws with respect to any rate or rating system that affects its members.

Section 8. The medical professional mutual insurance company shall offer medical malpractice insurance on both a claims made and occurrence basis to eligible health care providers so that eligible health care providers may select either form of insurance at their option.

SECTION 10. There is hereby established a nonprofit entity to be known as the "Massachusetts medical malpractice reinsurance plan". All medical malpractice insurers, as defined by section nine of this act shall, on or after April first, nineteen hundred and ninety-five, be members of the reinsurance plan.

Such plan shall be prepared and administered by a governing committee appointed by the governor for terms of three years consisting of five members representing medical malpractice insurers. At least three members of the governing committee shall be representatives of any domestic medical malpractice insurer(s). At least one member shall be a representative of a non-domestic medical malpractice insurer. The governing committee shall be responsible for the hiring of the employees of the plan.

On or before March thirty-first, nineteen hundred and ninety-five, the governing committee shall submit to the commissioner a plan of operation. The commissioner shall, after notice and hearing, approve or disapprove the plan of operation. Subsequent amendments to such plan shall be deemed approved by the commissioner if not expressly disapproved in writing by the commissioner within thirty days from the date of the filing.

Meetings of the governing committee of the plan shall be conducted in accordance with the provisions of section eleven A> of chapter thirty A.

Premium rates charged for coverage reinsured by the plan shall be established by the governing board. Any health care provider ceded to the plan shall be an aggrieved health care provider under section seven of chapter one hundred and seventy-five A of the General Laws with respect to any filing. Any health care provider ceded to the plan shall be an authorized representative under section eleven of chapter one hundred and seventy-five A of the General Laws with respect to any rate or rating system that affects its members.

To control the size of the population of the plan, the plan shall annually provide for high risk classification credits for those insurers voluntarily writing medical malpractice insurance within those high risk classifications that would otherwise be disproportionately represented in the plan.

The plan shall reinsure coverage for both claims made and occurrences policies.

Following the close of each fiscal year, the governing committee shall determine the premiums charged for reinsurance coverage, the reinsurance plan expenses for administration, and the incurred losses, if any, for the year, taking into account investment income and other appropriate gains and losses. Any net loss for the year shall be recouped by assessment of the members. Said assessment shall be apportioned in the proportion that the net direct premiums written by each member during the preceding calendar year bears to the aggregate net direct premiums written in the commonwealth by all medical malpractice insurers during the preceding calendar year. Deficit assessments shall be included as an appropriate factor in determining rates.

Except as otherwise provided for proceedings under chapter one hundred and seventy-five A, any medical malpractice insurer and any other person aggrieved by any unfair, unreasonable or improper act or practice resulting from the operation of the plan, or as a result of the conduct of any other medical malpractice insurer, may request relief from the governing committee in the manner set forth in the plan. Any such person may appeal to the commissioner from any ruling or decision of the governing committee with respect to the operation of the plan, and the governing committee may on behalf of the plan apply to the commissioner for relief with respect to any act or practice of any medical malpractice insurer with respect to the operation of the plan.

Any ruling, order or decision of the commissioner under authority of this act shall be subject to review by appeal to the superior court department of the trial court of Suffolk county at the instance of any party in interest, which appeal shall be on the basis of the record of the proceeding before the commissioner. Said court shall have the jurisdiction to modify, amend, annul, review or affirm such action, order, finding or decision, shall review all questions of fact and of law involved therein, and may make any other appropriate order or decree. Said court shall determine whether the filing of the appeal shall operate as a stay of any such ruling, order or decision of the commissioner.

SECTION 11. The provisions of this act are severable and if any of its provisions shall be held unconstitutional by any court of competent jurisdiction the decision of such court shall not impair any of the remaining sections.