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  • Acts
  • 1998
  • Chapter 372 AN ACT FURTHER REGULATING MEDICAL MALPRACTICE INSURANCE.

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. Section 193U of chapter 175 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out the first paragraph and inserting in place thereof the following paragraph:-

Every medical malpractice insurer shall make available to every health care provider every primary medical malpractice insurance coverage, as defined in the plan or rules of operation of the medical malpractice reinsurance plan, which it provides to any health care provider; provided, however, that only a medical malpractice insurer may cede any primary medical malpractice insurance policy issued to a health care provider to the medical malpractice reinsurance plan.

SECTION 2. The third paragraph of said section 193U of said chapter 175, as so appearing, is hereby amended by striking out the definition of "Eligible health care provider".

SECTION 3. Said third paragraph of said section 193U of said chapter 175, as so appearing, is hereby further amended by striking out the definition of "Health care provider" and inserting in place thereof the following definition:-

"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 6 of chapter 362 of the acts of 1975, including but not limited to, a doctor of medicine, osteopathy, optometry, dental science, podiatry, chiropractic, or registered nurse licensed under the provisions of chapter 112, an intern, fellow or medical officer licensed under the provisions of section 9 of said chapter 112 or a licensed hospital, clinic, or nursing home, and its agents and employees, and any other category of health care provider as the commissioner of insurance may from time to time designate as eligible for being ceded to the medical malpractice reinsurance plan.

SECTION 4. Said section 193U of said chapter 175, as so appearing, is hereby further amended by striking out the definition of "Medical malpractice insurer" and inserting in place thereof the following definition:-

"Medical malpractice insurer", any corporation that is licensed, admitted, authorized or approved to write liability other than auto insurance on risks within the commonwealth on a direct basis. The term "medical malpractice insurer" shall not include: (1) 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 (i) 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 (ii) 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, owners or affiliates, and any servicing carrier thereof; (2) a trust maintained by the University of Massachusetts to self fund medical malpractice risks; (3) a risk retention group, as defined in the Liability Risk Retention Act of 1986, 15 U.S.C. 3901; or (4) a surplus lines insurer, so-called, insuring in the commonwealth under the requirements of section 168.

SECTION 5. Said section 193U of said chapter 175, as so appearing, is hereby further amended by striking out, in line 53, the figure "3902" and inserting in place thereof the following figure:- 3901.

SECTION 6. Said section 193U of said chapter 175, as so appearing, is hereby further amended by striking out, in lines 7 and 14, the word "eligible".

SECTION 7. Section 9 of chapter 330 of the acts of 1994 is hereby amended by striking out the definition of "Medical malpractice insurer" and inserting in place thereof the following definition:-

"Medical malpractice insurer", any corporation that is licensed, admitted, authorized or approved to write liability other than auto insurance on risks within the commonwealth on a direct basis. The term "medical malpractice insurer" shall not include: (1) 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 (i) 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 (ii) 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, owners or affiliates, and any servicing carrier thereof; (2) a trust maintained by the University of Massachusetts to self fund medical malpractice risks; (3) a risk retention group, as defined in the Liability Risk Retention Act of 1986, 15 U.S.C. 3901; or (4) a surplus lines insurer, so-called, insuring in the commonwealth under the requirements of section 168 of chapter 175 of the General Laws.

SECTION 8. Said section 9 of said chapter 330 is hereby further amended by striking out the definition of "Health care provider" and inserting in place thereof the following definition:-

"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 6 of chapter 362 of the acts of 1975, including, but not limited to, a doctor of medicine, osteopathy, optometry, dental science, podiatry, chiropractic, or registered nurse licensed under the provisions of chapter 112 of the General Laws, an intern, fellow or medical officer licensed under the provisions of section 9 of said chapter 112 or a licensed hospital, clinic, or nursing home, and its agents and employees, and any other category of health care provider as the commissioner of insurance may from time to time designate as eligible for being ceded to the medical malpractice reinsurance plan.

SECTION 9. Said section 9 of said chapter 330 is hereby further amended by striking out the definition of "Eligible health care provider".

SECTION 10. The definition of "Net direct premiums" of said section 9 of said chapter 330 is hereby amended by striking out, in line 3, the word "computed" and inserting in place thereof the following word:- approved.

SECTION 11. Subsection 8 of said section 9 of said chapter 330 is hereby amended by striking out, in lines 2 and 3, the word "eligible".

SECTION 12. Section 10 of said chapter 330 is hereby amended by inserting after the third paragraph the following paragraph:-

The governing committee shall determine by amendment to the plan or rules of operation what constitutes primary medical malpractice insurance coverage. In addition, the governing committee may by amendment to the plan or rules of operation determine the limits of liability of such primary medical malpractice insurance coverage which may be ceded to the plan.

SECTION 13. The fifth paragraph of said section 10 of said chapter 330 is hereby amended by striking out, in line 2, the word "board" and inserting in place thereof the following word:- committee.

SECTION 14. Said section 10 of said chapter 330 is hereby further amended by striking out the eighth paragraph and inserting in place thereof the following paragraph:-

Following the close of each policy 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 policy year, taking into account investment income and other appropriate gains and losses. Any net loss for such policy year shall be recouped by assessment of the members. Said assessment shall be apportioned in the proportion that the direct premiums written by each member during the corresponding calendar year bears to the aggregate direct premiums written in the commonwealth by all medical malpractice insurers during the corresponding calendar year. Any assessment may be adjusted to reflect differences in utilization among members and other appropriate factors. Deficit assessments shall be included as an appropriate factor in determining rates. The governing committee shall develop a fair and reasonable methodology to ensure the smooth transition from calendar year based assessments to policy year based assessments and to ensure that no medical malpractice insurer has been advantaged by the use of such calendar year assessment formula.

SECTION 15. Said section 10 of said chapter 330 is hereby further amended by adding the following paragraph:-

There shall be no liability on the part of, and no cause of action of any nature shall arise against a member of the governing committee or any other committee of the medical malpractice reinsurance plan or any officer, employee or agent thereof for any act or omission resulting in damage or injury to another, if such person was acting in good faith and within the scope of his official functions and duties, unless such damage or injury was caused by willful or wanton conduct.

Approved October 31, 1998.