§ 193U — Discrimination based on specialty practiced; risk classification; definitions

Section 193U. Every medical malpractice insurer shall make available to every health care provider every primary medical malpractice insurance coverage, as defined in the plan or rules of operation of the medical malpractice reinsurance plan, which it provides to any health care provider; provided, however, that only a medical malpractice insurer may cede any primary medical malpractice insurance policy issued to a health care provider to the medical malpractice reinsurance plan.[ Second paragraph effective until March 23, 2025. For text effective March 23, 2025, see below.]No medical malpractice insurer shall discriminate against any health care provider based upon the specialty practiced by health care providers within such category; provided, however, that nothing herein shall prohibit a medical malpractice insurer from establishing reasonable classifications of risks and premium charges based upon the relative risk associated with practice in a particular specialty; provided further, that no medical malpractice insurer shall discriminate against a provider or adjust or otherwise calculate a provider's risk classification or premium charges on the basis that, applying the definitions of section 11I1/2 of chapter 12: (i) the health care provider offers reproductive health care services or gender-affirming health care services that are unlawful in another state; (ii) another state's laws create potential or actual liability for those services; or (iii) abusive litigation against a provider concerning reproductive health care services or gender-affirming health care services resulted in a judgment against the provider, if such health care services would be lawful and consistent with good medical practice as provided if they occurred entirely in the commonwealth. If, after a hearing, the commissioner determines that a medical malpractice insurer has discriminated against any health care provider in violation of this section, the commissioner shall take such action as is necessary to eliminate the effect of the discrimination and to prevent further violations, including, without limitation, the suspension or revocation of the medical malpractice insurer's license, admission, authorization or approval to write medical malpractice insurance on risks within the commonwealth.[ Second paragraph as amended by 2024, 285, Sec. 23 effective March 23, 2025. For text effective until March 23, 2025, see above.]No medical malpractice insurer shall discriminate against any health care provider based upon the specialty practiced by health care providers within such category; provided, however, that nothing herein shall prohibit a medical malpractice insurer from establishing reasonable classifications of risks and premium charges based upon the relative risk associated with practice in a particular specialty; provided further, that no medical malpractice insurer shall discriminate against a provider or adjust or otherwise calculate a provider's risk classification or premium charges on the basis that the health care provider provides services at a harm reduction program or, applying the definitions of section 11I1/2 of chapter 12: (i) the health care provider offers reproductive health care services or gender-affirming health care services that are unlawful in another state; (ii) another state's laws create potential or actual liability for those services; or (iii) abusive litigation against a provider concerning reproductive health care services or gender-affirming health care services resulted in a judgment against the provider, if such health care services would be lawful and consistent with good medical practice as provided if they occurred entirely in the commonwealth. If, after a hearing, the commissioner determines that a medical malpractice insurer has discriminated against any health care provider in violation of this section, the commissioner shall take such action as is necessary to eliminate the effect of the discrimination and to prevent further violations, including, without limitation, the suspension or revocation of the medical malpractice insurer's license, admission, authorization or approval to write medical malpractice insurance on risks within the commonwealth.For purposes of this section, the following words shall have the following meanings:--"Health care provider'', any category of health care provider that was authorized to obtain medical malpractice insurance from the Joint Underwriting Association established by section 6 of chapter 362 of the acts of 1975, including but not limited to, a doctor of medicine, osteopathy, optometry, dental science, physical therapists and physical therapist assistants licensed under chapter 112, podiatry, chiropractic, or registered nurse licensed under the provisions of said chapter 112, an intern, fellow or medical officer licensed under the provisions of section 9 of said chapter 112 or a licensed hospital, clinic, or nursing home, and its agents and employees, and any other category of health care provider as the commissioner of insurance may from time to time designate as eligible for being ceded to the medical malpractice reinsurance plan."Medical malpractice insurer'', any corporation that is licensed, admitted, authorized or approved to write liability other than auto insurance on risks within the commonwealth on a direct basis. The term "medical malpractice insurer'' shall not include: (1) a corporation or other entity that is formed under the laws of any jurisdiction other than a state of the United States or the District of Columbia and that is engaged in writing (i) medical malpractice insurance for the members, shareholders or owners of such corporation or other entity, including affiliates of such members, shareholders, owners and persons employed by, affiliated with or providing professional services to such members, shareholders, owners or affiliates, and any servicing carrier thereof, or (ii) reinsurance on medical malpractice insurance written by a fronting company for the members, shareholders or owners of such corporation or other entity, including affiliates of such members, shareholders, owners or affiliates, and any servicing carrier thereof; (2) a trust maintained by the University of Massachusetts to self fund medical malpractice risks; (3) a risk retention group, as defined in the Liability Risk Retention Act of 1986, 15 U.S.C. 3901; or (4) a surplus lines insurer, so-called, insuring in the commonwealth under the requirements of section 168."Massachusetts medical malpractice reinsurance plan,'' the nonprofit entity known as the medical malpractice reinsurance plan as approved by the commissioner.