(a) Pursuant to chapter 266 of the Laws of 1986, as amended by chapter 208 of the Laws of 1987, sections 3436 and 5504 of the Insurance Law required every insurer that issued or renewed policies for primary levels of medical malpractice insurance covering physicians licensed to practice in this State and the Medical Malpractice Insurance Association (MMIA) to issue such policies solely on a claims-made basis, as prescribed by the superintendent by regulation. Those sections also provided that occurrence policies could be issued or renewed for insureds who currently purchased occurrence policies from an admitted insurer, the MMIA, or a voluntary attending physician (Channeling) program previously permitted by the superintendent.

(b) Chapter 381 of the Laws of 1991 amended section 3436, effective July 15, 1991, to permit the issuance or renewal of medical malpractice insurance policies covering physicians on a claims-made or an occurrence basis, as prescribed by the superintendent by regulation. Section 5504, which applies to policies issued by MMIA, was similarly amended by chapter 256 of the Laws of 1993.

(c) It has become apparent that there are medical practice situations where claims-made coverage has proven impractical or unworkable. Among these are short-term coverage situations involving seasonal employment or substitute doctors; physicians employed by nonmedical businesses; and group practices with physician turnover in fixed positions, sometimes referred to as “slotting”. In addition, questions have been raised whether physicians insured on an occurrence basis who temporarily interrupt their practice, such as for maternity or military leave, or to take advanced courses, could obtain occurrence coverage upon resuming practice. It has also become apparent that many physicians, even if not concerned with these special situations, prefer to be insured on an occurrence basis. Further, many of the facilities that grant privileges to physicians also prefer that they be insured on an occurrence basis.

(d) After considering the advantages and disadvantages of both the claims-made and occurrence forms of coverage, the superintendent has determined that both forms of coverage should be available to physicians.

(e) In making this determination, however, the superintendent is also aware that since the introduction into New York of the claims-made form of coverage for physicians in 1982, some insurers have elected to provide such coverage solely on a claims-made basis or solely on an occurrence basis for some or all classes of physicians. Accordingly, while the choice of type of coverage should generally rest with the insured physician, the continued availability of coverage to certain classes of physicians will be enhanced by permitting insurers which, prior to the enactment of chapter 381, chose to provide coverage to some or all classes solely on a claims-made or solely on an occurrence basis, to continue to do so.

(f) Every insurer that issues or renews policies for primary levels of medical malpractice insurance covering physicians licensed to practice in this State shall:

(g) Every insurer (except the MMIA) that issues or renews policies for primary levels of medical malpractice insurance covering physicians licensed to practice in this State that, between July 15, 1991 and this section's effective date [October 22, 1991], issued or renewed a policy on a claims-made basis may reissue the policy on an occurrence basis retroactive to the claims-made policy's effective or renewal date, if:

(h) Nothing in this section shall preclude any insurer from applying otherwise applicable underwriting standards in determining whether to issue or renew a policy, provided that, except as provided in subdivision (i) of this section, such underwriting standards do not preclude or limit the insured's choice of claims-made or occurrence coverage.

(i) Notwithstanding subdivisions (f), (g) and (h) of this section, any insurer that, prior to July 15, 1991, insured any class or classes of physicians in this State for primary levels of medical malpractice insurance solely on a claims-made basis or solely on an occurrence basis may continue to insure such class or classes of physicians solely on that basis, except, if any such insurer subsequently issues any policy on the other basis to a member of such class, it shall thereafter issue or renew policies on a claims-made or an occurrence basis as requested by each insured member of such class.