New York State Seal

STATE OF NEW YORK

INSURANCE DEPARTMENT

25 BEAVER STREET

NEW YORK, NEW YORK 10004

David A. Paterson

Governor

Kermitt J. Brooks

Acting Superintendent

OGC Op. No. 09-07-07

The Office of General Counsel issued the following opinion on July 29, 2009 representing the position of the New York State Insurance Department.

Re: State entity-owned hospitals reporting of medical malpractice claims

Questions presented:

1) Is a hospital whose medical malpractice claims are indemnified by New York State a “self-insured hospital” for the purposes of N.Y. Insurance Law § 315 (McKinney 2006)?

2) Must such hospital submit to the Superintendent and to the Commissioner reports on all claims for medical malpractice made against the hospital or its doctors?

Conclusions:

1) Yes. A hospital whose medical malpractice claims are reimbursed by the state is considered a “self-insured hospital” under Insurance Law § 315, because the hospital is not insured for professional medical malpractice with any insurer.

2) Yes. Because a hospital whose medical malpractice claims are reimbursed by the state is a “self-insured hospital,” the hospital must file quarterly reports with the Superintendent and the Commissioner on all claims for medical malpractice made against it during the preceding three-month period.

Facts:

The inquirer represents the New York State Department of Health (“DOH”). He inquires whether certain hospitals that are owned and operated by state entities, and whose medical malpractice claims that he reports the state reimburses, are reporting their medical malpractice claims to the Superintendent and to the Commissioner. He asks whether, in accordance with Insurance Law § 315, the hospitals themselves must report claims to the Superintendent and to the Commissioner, or whether DOH—a government entity—must do the reporting on behalf of the hospitals.

Analysis:

Insurance § 315 sets forth the requirement that medical malpractice claims must be reported to the Superintendent and to the Commissioner. The Legislature enacted that statutory provision in 1975 as Insurance Law § 335 (prior to the 1984 re-codification of the Insurance Law) to require all authorized medical malpractice insurers to file with the Superintendent and with the Commissioner a detailed report of all claims filed and received during the preceding six months. Subsequently, the statute was amended as of January 1, 1979 to extend the reporting requirement to “self-insured” hospitals. A later legislative amendment effective June 29, 1981 extended the reporting requirement to hospitals that are insured with companies not licensed in New York State.

Insurance Law § 315(b)(2) addresses self-insured hospitals and states that:

Each hospital, as defined in article twenty-eight of the public health law, which, and each health care practitioner licensed, certified or registered pursuant to the provisions of title eight of the education law who, is self-insured for professional medical malpractice or is insured for professional medical malpractice with an insurance company not licensed to do business in this state shall also file quarterly reports with the superintendent and the commissioner of health on all claims for medical malpractice made against him, her, or it during the preceding three month period. For purposes of this section, a hospital which, or individual who, is self-insured for professional medical malpractice shall mean a hospital which, or individual who, is not insured for professional medical malpractice with either an insurance company engaged in issuing professional medical malpractice insurance in this state or the medical malpractice insurance association or an insurance company not licensed to do business in this state.

Thus, Insurance Law § 315(b)(2) requires each hospital and each health care practitioner licensed pursuant to Title 8 of the Education Law that is self-insured for professional medical malpractice or is insured for professional medical malpractice with an insurer not licensed to do business to file quarterly reports with the Superintendent and the Commissioner on claims for medical malpractice made against the practitioner or the hospital.

Insurance Law § 315(b)(2) also provides that for purposes of medical malpractice reporting, a hospital that is self-insured means a hospital that is not insured for professional medical malpractice with either an insurance company engaged in issuing professional medical malpractice insurance in this state or the medical malpractice insurance association (MMIA),1 or an insurance company not licensed to do business in this state

Accordingly, in response to the inquirer's first question, for the purposes of medical malpractice claim reporting, a hospital whose medical malpractice claims are reimbursed by the state is a “self-insured hospital” for the purposes of Insurance Law § 315, because such hospital is not insured for professional medical malpractice with either an insurance company engaged in issuing professional medical malpractice insurance in this state or the MMIA, or an insurance company not licensed to do business in this state.

In response to your second question, because a hospital whose medical malpractice claims are reimbursed by the state is considered a “self-insured hospital,” the hospital must, in accordance with Insurance Law § 315(b)(2), file quarterly reports with the Superintendent and the Commissioner on all claims for medical malpractice made against it during the preceding three-month period.

For further information you may contact Senior Attorney Sapna S. Maloor at the New York City Office.

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1 MMIA no longer provides medical malpractice insurance coverage. Instead, the Medical Malpractice Insurance Pool (MMIP) acts as a residual market for medical malpractice insurance. See OGC opinion dated October 29, 2007 for a discussion of the history of the MMIA and the MMIP