Wyoming medical excess liability program.

WORKING DRAFT
2005
STATE OF WYOMING
05LSO-0581

SENATE FILE
NO.
SF0175

Wyoming medical excess liability program.

Sponsored by:
Senator(s) Jennings

A BILL

for

AN ACT relating to medical malpractice insurance; creating the Wyoming medical excess liability program; providing qualifications and requirements under the program; excepting punitive damages from eligibility; providing a claims process; providing an appropriation; and providing for an effective date.

Be It Enacted by the Legislature of the State of Wyoming:

Section 1.

W.S. 35
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1
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1001 through 35
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1
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1007 are created to read:

ARTICLE 10
WYOMING MEDICAL EXCESS LIABILITY PROGRAM

35
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1
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1001.

Definitions.

(a)

This act shall be known and may be cited as the "Wyoming medical excess liability program."

(b)

As used in this article:

(i)

"Physician" means a person licensed under W.S. 33
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26
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303;

(ii)

"Program" means the Wyoming medical excess liability program;

(iii)

"This article" refers to the Wyoming medical excess liability program.

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1
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1002.

Contract required; payment limits.

Any physician who is licensed and practicing in Wyoming, who meets the financial requirements and enters into an agreement as specified by this article, shall be eligible to have any settlements or final judgments for noneconomic damages in excess of three hundred fifty thousand dollars ($350,000.00) up to a maximum payment of one million dollars ($1,000,000.00), paid by the Wyoming medical excess liability program.

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1003.

Program qualifications and requirements; eligibility.

(a)

To be qualified under the provisions of the
Wyoming medical excess liability program
, a physician shall
:

(i)

Establish financial responsibility by filing proof with the insurance commissioner that he is insured by a policy of malpractice liability insurance issued by an authorized insurer; and

(ii)

The physician shall enter into an agreement with the state, pursuant to which the physician shall:

(A)

Actively provide medical care in the state of Wyoming through July 1, 2008;

(B)

Notify the insurance commissioner in writing if any claim is made or any action is filed against the physician alleging medical injury caused by the physician which may result in a settlement or final judgment award;

(C)

Allow the insurance commissioner, his counsel and the office of the attorney general to participate in all aspects of any claim, demand or suit, including any settlement negotiations, that may occur as a result of any claim made pursuant to this article;

(D)

Maintain the primary insurance coverage in each specialty area the physician will practice under;

(E)

Accept and provide medical care to patients qualified under the Medical Assistance and Services Act, the Child Health Insurance Program or any other state or federally funded plan who seek medical care the physician is qualified to provide; and

(F)

Notify the insurance commissioner in writing within thirty (30) days of any change in the physician's status under the agreement.

(b)

The state may enter into contracts with any physician practicing under a valid license who is practicing in the state at least seventy percent (70%) of any contract year or any physician practicing medicine only in Wyoming on a less than full
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time basis, who agrees to the terms required under subsection (a) of this section.

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1004.

Duties and responsibilities of the insurance commissioner; payment from reinsurance purchased by the program; audits required.

(a)

The Wyoming insurance commissioner shall administer the program created by this article. The insurance commissioner shall purchase reinsurance as deemed prudent to minimize expenditures under this article.

(b)

Subject to other provisions of this article, upon application from any physician who has entered into an agreement under this article and proof of a final judgment or settlement for noneconomic compensatory damages in excess of
three hundred fifty thousand dollars
($350,000.00) as a result of a medical negligence claim against the physician for acts or omissions occurring in Wyoming, the reinsurance policy under the program shall pay the noneconomic damages in excess of
three hundred fifty thousand dollars
($350,000.00) from the Wyoming medical excess liability program.

(c)

In any contract entered into under this article, the reinsurance policy under the program shall not pay more than one million dollars ($1,000,000.00) in noneconomic damages for any one (1) claim.

(d)

Payment of noneconomic damages in excess of the one million dollars ($1,000,000.00) shall remain the liability of the physician.

(e)

The insurance commissioner shall have the authority to conduct audits, actuarial analysis or studies deemed necessary to ensure the ongoing financial stability of the program and shall be paid for out of the program.

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1005.

Noncompliance.

(a)

Any physician who enters into an agreement under this article and who fails or refuses to fulfill the terms of the agreement, shall not be in compliance with the agreement and shall not be eligible for participation in the Wyoming medical excess liability program.

(b)

Any noneconomic damages that may be attributable to medical treatment provided by a physician deemed by the insurance commissioner not to be in compliance with his agreement with the state at the time of the treatment shall not be eligible for payment from the program created by this article, regardless of the amount of the final judgment or settlement.

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1006.

Punitive damages.

Punitive damages shall not be
paid from the Wyoming medical excess liability program.

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1007.

Claims data.

(a)

Within thirty (30) days after each claim is closed, any insurer writing medical malpractice liability coverage in this state shall file with the insurance commissioner a report of each claim against a health care provider and a report of each award or settlement given in each case against a health care provider. The insurer shall remove any information from the report which could be used to identify the particular health care provider and his claim history or the patient and the patient's medical history.

(b)

The report shall contain the following information:

(i)

For each claim:

(A)

Specialty coverage of the insured;

(B)

Nature and substance of the claim;

(C)

Age of the injured party;

(D)

The date and manner of disposition, whether by judgment, settlement, arbitration or otherwise and an itemization of the amounts paid, if any, if reported separately or can reasonably be characterized, segregated or identified for:

(I)

Medical and prescription costs;

(II)

Economic damages;

(III)

Noneconomic damages;

(IV)

Costs of defense, including attorney’s fees, costs and expenses; and

(V)

Any additional information required by the commissioner.

(c)

The report required by subsections (a) and (b) of this section and its contents are not admissible or discoverable.

(d)

The insurance commissioner shall report by December 1 of each year a summary of the report required by subsections (a) and (b) of this section to the legislative management council and the governor.

Section 2.

(a)

The Wyoming legislature finds:

(i)

Physicians’ medical malpractice insurance is available from a very limited number of authorized insurers in Wyoming and has been recognized to be a noncompetitive market by the Wyoming insurance commissioner;

(ii)

Medical malpractice insurance premiums generally are increasing. These premiums are even more costly if a physician is required to change insurers. The increased premiums are causing and will continue to cause physicians to limit or close their practices, or in some cases, to leave the state;

(iii)

Wyoming has difficulty recruiting and retaining sufficient numbers of physicians to practice in various parts of the state. Elements of this difficulty include the limited availability of insurance and its high cost;

(iv)

Sufficient numbers of physicians actively practicing throughout the state is critical to the availability of adequate medical care for Wyoming citizens, particularly individuals under the Wyoming Medical Assistance and Services Act, the Wyoming Uninsured Child Health Insurance Program and to other needy individuals;

(v)

The availability of adequate medical care to Wyoming citizens is threatened without implementation of this act.

(b)

The legislature determines that the assistance contemplated by this act is necessary to support the compelling state interests of ensuring the availability of adequate medical care, the availability of physicians to offer medical care in Wyoming’s communities and the availability of physicians to provide medical care to the needy and the poor. The legislature therefore determines that assistance contemplated by this act is both for a public purpose and for necessary support of the poor as authorized in Article 16, Section 6 of the Wyoming Constitution.

Section 3.

(a)

There is appropriated from the budget reserve account to the Wyoming medical excess liability program two million dollars ($2,000,000.00) to implement the purposes of this act and the administrative costs incurred by the insurance commissioner in the implementation of this act.

(b)

There is authorized one (1) additional position to the insurance department for the purposes of implementing this act.

Section 4.

(a)

This act shall apply to all medical malpractice settlements or claims based upon errors or omissions alleged to have occurred on or after the effective date of this act.

(b)

This act is effective immediately upon co
m
pletion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constit
u
tion.

(END)

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SF0175