New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT
25 BEAVER STREET
NEW YORK, NEW YORK 10004

Eliot Spitzer
Governor

Eric R. Dinallo
Superintendent

The Office of General Counsel issued the following opinion on March 7, 2008 representing the position of the New York State Insurance Department.

Re: Reporting of Medical Malpractice Claims

Question Presented:

Did the Insurer act properly in reporting the closed claims to the hospital?

Conclusion:

Yes, under the facts presented, the Insurer did not violate the New York. Insurance Law or the regulations promulgated thereunder, in reporting the closed claims in question.

Facts:

According to the website operated by the New York State Health Department (“Health Department”), the inquirer is licensed to practice medicine in New York, and is Board Certified in Ophthalmology. He reports that he was the subject of four claims between 1989 and 1991, of which three were discontinued by the plaintiff, and the fourth resulted in a verdict in his favor. He complains that Insurer continues to report these claims to hospitals with which he is affiliated.

Subsequent to the original letter, he reported that he is about to be recredentialed by another hospital, and again requested clarification of the reporting obligations of Insurer.

In addition, he notes that he has complained about Insurer’s rating of his practice, and that he has formally appealed his rating consistent with Insurer’s procedures.

Analysis:

This opinion is limited to the specific information furnished by Insurer to the hospitals which is the subject of the inquiry. Other reports that may have been made by Insurer, and to which he has not referred, have not been reviewed by the New York State Insurance Department.

Insurance Law § 315 is germane to the inquiry. That statute reads as follows:

Each insurance company engaged in issuing professional medical malpractice insurance in this state . . . shall file with the superintendent and with the commissioner of health quarterly reports on all claims for medical malpractice made against any of its insureds and received by it during the preceding three month period, a report of any surcharge or merit-rating adjustment made on an insured's premium and the reason for the surcharge or merit-rating adjustment and a report of any cancellation, including voluntary cancellation by the insured and the reason for the cancellation, of its insureds professional medical liability insurance for reasons other than non-payment of premiums during the preceding three month period.

Furthermore, Insurance Law § 315(b)(1) requires medical malpractice insurers to report information concerning developments on malpractice claims within the past quarter to the Insurance Department and the Health Department. Insurance Law § 315(f) provides:

Any report or information furnished or compiled pursuant to this section shall be deemed to be a confidential communication. . . . Reports required by subsection (b) hereof shall not be open for review or be subject to subpoena except by a public agency or authority of this state.

Taken together, Insurance Law § 315(b)(1) and § 315(f) establish that information “old” claims need not be reported to either this Department or the Health Department. Moreover, without the physician’s permission, given the strictures of Insurance Law § 315(f), an insurer may not reveal claims information to any entity or party, other than the Insurance Department, Health Departments, or some other “public agency or authority of this state.”

Insurer has indicated that it is fully cognizant of the confidentiality requirements of Insurance Law § 315(f).

In addition to the reporting requirements of Insurance Law § 315, 42 U.S.C. § 11131 et seq. (West 1999), requires insurers to report information on claims payments to the National Practitioner Data Bank (“NPDB”). In accordance with 42 U.S.C.A. § 11135, a hospital must access the NPDB when it grants or renews privileges to a physician. Insurer has confirmed that, because no payment was made on the inquirer's behalf, Insurer made no report to the NPDB. Insurer notes, however, that in response to a request by a hospital, the inquirer authorized on May 6, 2007 authorized release of the claim information to the hospital. Insurer has furnished the Department with a copy of that release.

The New York Public Health Law requires hospitals to review specified information prior to granting or renewing clinical privileges. Public Health Law § 2805-k(1) provides:

Prior to granting or renewing professional privileges or association of any physician . . . or hiring a physician, . . . a hospital or facility approved pursuant to this article shall request from the physician . . . and the physician . . . shall be required to provide the following information: . . . (c) Any . . . pending medical malpractice actions in this state or another state, the substance of the allegations in such . . . actions, and any additional information concerning such . . . actions as the physician . . . may deem appropriate; . . . (e) A waiver by the physician . . . of any confidentiality provisions concerning the information required to be provided to hospitals pursuant to this subdivision; and . . . (g) A verification by the physician . . that the information provided by the physician . . . is true and accurate.

It appears that the information required by Public Health Law § 2805-k(1)(c) is the minimum information that a hospital has to request relative to malpractice claims, and that a hospital is free to require information concerning closed claims, without any limitation as to time. In addition, in accordance with Public Health Law § 2805-k(1)(g), a physician applying to a hospital for the granting or renewal of privileges is obligated to make a full and complete response to any inquiry concerning medical malpractice claims. Of course, the physician may include in his or her response any relevant explanation.

In sum, a waiver by a physician in accordance with Public Health Law § 2805-k(1)(e) allows the release of malpractice claim information. Because the inquirer granted permission to Insurer in May 2007, it appears that Insurer validly furnished the information to the hospital.

For further information you may contact Principal Attorney Alan Rachlin at the New York City Office.