The Office of General Counsel issued the following informal opinion on July 25, 2002, representing the position of the New York State Insurance Department.
Re: New York Statutory Excess Medical Malpractice Insurance Coverage
Is statutory New York State excess medical malpractice insurance coverage available to a physician, who principally practices in New Jersey but maintains a small practice in New York, if the physician has an individual policy of primary medical malpractice insurance that (1) affords coverage for "worldwide" exposure, (2) is issued by a New York authorized insurer, and (3) covers amounts of two million dollars ($2,000,000.00) for each claimant and four million dollars ($4,000,000.00) for all claimants?
Yes. The physician may participate in New Yorks excess medical malpractice program if the physician fulfills the requirements of 1986 N.Y. Laws 266, § 18, as amended by 2002 N.Y. Laws 1, pt. A, § 36.
A physician (the "Insured"), who primarily practices in New Jersey but also maintains a small practice in New York, has an individual policy of primary medical malpractice insurance with an insurer (the "Insurer"), a New Jersey insurer licensed in New York, that provides coverage for exposures worldwide. The Insurer does not offer policies that cover amounts of one million three hundred thousand dollars ($1,300,000.00) for each claimant and three million nine hundred dollars ($3,900,000.00) for all claimants, but does offer coverage in amounts of two million dollars ($2,000,000.00) for each claimant and four million dollars ($4,000,000.00) for all claimants.
The New York State Superintendent of Insurance and the New York State Commissioner of Health, or their designees, will (1) purchase a policy, or policies, of excess insurance coverage for medical malpractice occurrences between July 1, 2001, and June 30, 2002, and between July 1, 2002, and June 30, 2003, or (2) reimburse the hospital where the hospital purchases equivalent excess coverage for medical malpractice occurrences between the aforementioned periods:
for physicians or dentists certified as eligible for each such period or periods pursuant to subdivision (2) of this section by a general hospital licensed pursuant to article 28 of the public health law; and provided, however, that such eligible physicians or dentists must have in force an individual policy, from an insurer licensed in this state of primary malpractice insurance coverage in amounts of no less than one million three hundred thousand dollars for each claimant and three million nine hundred thousand dollars for all claimants under that policy during the period of such excess coverage for such occurrences . . . . During such period, such policy for excess coverage or such equivalent excess coverage shall, when combined with the physicians or dentists primary malpractice insurance coverage . . ., total an aggregate level of two million three hundred thousand dollars for each claimant and six million nine hundred thousand dollars for all claimants from all such policies with respect to occurrences in each of such years . . . .
1986 N.Y. Laws 266, § 18, as amended by 2002 N.Y. Laws 1, pt. A, § 36.
Accordingly, under the facts presented, the Insured may participate in the New York State Excess Medical Malpractice Insurance Program if he (1) obtains coverage from the Insurer in amounts of two million dollars ($2,000,000.00) for each claimant and four million dollars ($4,000,000.00) for all claimants, and (2) is certified as eligible during the applicable time periods, pursuant to subdivision (2) of 1986 N.Y. Laws 267, § 11,by a general hospital licensed pursuant to Article 28 of the of the Public Health Law.
Please note that Section 91.2 of the regulations of the New York State Department of Health, N.Y. Comp. Codes R. & Regs. tit. 10, § 91 (2002), regulates hospital certifications. In addition, the New York State Insurance Department has previously stated that the New York Legislature did not intend "to impose additional costs on health care in New York to provide additional protection to a physician whose practice is primarily in another state," Office of General Counsel Opinion No. 96-26 (April 12, 1996). Consequently, a general hospital may deny the Insured certification because the majority of the physicians practice is outside of New York. For further information regarding § 91.2, please contact the Office of Regulatory Reform, Division of Legal Affairs of the New York State Department of Health, at (518) 473-7488.
The above opinion is informal and not binding on any court. For further information you may contact Attorney Kristian Earl Lynch at the New York City Office.
1Subdivision (2) of 1986 N.Y. Laws 266, § 18, as amended by 1986 N.Y. Laws 267, § 1, states that:
[e]very general hospital which maintains facilities for providing emergency medical care shall certify to the commissioner of health and the superintendent of insurance, at a time and in a manner prescribed by the commissioner and superintendent, as eligible for purchase of a policy for excess insurance coverage or equivalent excess coverage in accordance with subdivision one of this section, those physicians or dentists who request such certification of eligibility and who have professional privileges in such hospital and who, from time to time, provide emergency medical or dental care in such hospital to persons who require such care. In the event that a physician or dentist has professional privileges in more than one general hospital, such certification of eligibility shall be provided by the general hospital designated by such physician or dentist as the general hospital with which the physician or dentist is primarily affiliated, as may defined pursuant to regulations of the commissioner of health.