§ 5C — Experience review plans

Section 5C. (a)(1) The medical professional mutual insurance company approved by the commissioner is hereby authorized to establish an experience review plan for all physicians insured by it. Such experience review plan shall be administered by an experience review committee established by the insurer. The said committee (i) shall consist of an even number of standing voting members, not to be less than six; and (ii) shall include physicians licensed to practice in the commonwealth as one-half of the standing voting members. The said committee shall include as physician members only physicians appointed by the insurer from a list of nominees provided by the Massachusetts medical society, which nominees shall not all be members of said Massachusetts medical society. An additional representative of the medical professional mutual insurance company may sit as a member of the committee but shall vote only in the event of a tie vote of the other members.(2) Said committee is hereby authorized to review the medical malpractice claim experience of insured physicians and any other relevant information obtained by the medical professional mutual insurance company through its risk management or underwriting activities. The purpose of this review is for the committee to determine, on the basis of the physician's experience, whether remedial action may reduce the possibility that the physician's practice may result in future incidents of medical malpractice, and, if so, to implement the remedial action or actions which the committee determines are indicated. If the committee determines remedial action should be implemented, it shall implement secondary remedial actions only if the committee determines (i) that primary remedial action has not or is unlikely to reduce the possibility that the physician's practice may result in future incidents of medical malpractice, or (ii) that the physician has failed or refused to comply with remedial actions implemented by the committee. Primary remedial actions are those listed in subsection (a)(3) which are not designated secondary remedial actions, and remedial actions not listed in paragraph (3) which are not designated secondary when approved for use by the commissioner. Secondary remedial actions are those listed in clauses (vi), (vii) and (viii) of said paragraph (3); similarly stringent actions not listed shall be designated secondary remedial actions when approved for use by the commissioner. In determining whether to impose remedial action, and in determining the remedial action or actions to be imposed, the experience review committee shall make its determinations solely with reference to this subsection, which is the complete and exclusive standard for such determinations by the experience review committee.(3) The said committee is authorized to recommend and implement remedial action as provided in this subsection with respect to an insured whose medical malpractice claim experience has been reviewed. The following committee remedial actions are hereby authorized: (i) consultation with the medical professional mutual insurance company's risk management staff; (ii) audits by the medical professional mutual insurance company's risk management staff; (iii) required additional education, including residency or other training programs; (iv) ineligibility for risk management, limited practice or other applicable medical malpractice insurance discounts; (v) required consultation with or supervision by another physician; (vi) restriction of coverage to exclude coverage for a particular specialty, procedure, or medical setting; (vii) imposition of a co-payment with respect to claims asserted against the physician involving a particular specialty or procedure; provided, however, that in no event shall the committee established by the medical professional mutual insurance company impose a co-payment which is less than a minimum set out in the experience review plan or more than fifty percent per claim or in excess of fifty thousand dollars per claim for any co-payment; (viii) imposition of added charges; provided, however, that in no event shall the committee established by the medical professional mutual insurance company impose an added charge on an insured less than a minimum set out in the experience review plan or more than fifty percent of the insured's total limits premium; and (ix) any other remedial action as the commissioner may approve which is consistent with the provisions of this section. In the event the experience review committee adopts a remedial action of a type not specified in the experience review plan, the committee shall, at least thirty days before the effective date of such remedial action, advise the commissioner of the particular terms of the proposed remedial action and indicate how it is consistent with this section. Unless the commissioner disapproves the proposed remedial action before it goes into effect, such remedial action shall be deemed approved.(4) Prior to adopting any remedial action with respect to an insured, the committee shall provide written notice to the insured of remedial action determined by it, the reasons supporting the committee's determination, and the commencement date for the remedial action, which shall not be less than thirty days from the date of the notice. The notice shall advise the insured that he may meet with the committee to obtain a further explanation of the committee's determination and to respond to the determination, and shall specify the time within which such a meeting may be requested, which shall not be less than ten business days from the insured's receipt of the notice. If the insured does not request a meeting with the committee within the time specified, he shall be deemed to have accepted the proposed remedial action, and to have waived his right to further review of the remedial action by the committee or pursuant to paragraph (6). If the insured requests a meeting with the committee, the committee shall hold a meeting prior to implementing any remedial action with respect to the insured.(5) The medical professional mutual insurance company approved by the commissioner is hereby authorized to issue endorsements to the insured's medical malpractice insurance policy and to take such other action as is necessary to implement the remedial action adopted by said committee. In no event shall the experience review committee established by the medical professional mutual insurance company deny all coverage to a duly licensed physician based upon review under the plan if the company is required to make medical malpractice insurance coverage available to such physician pursuant to section one hundred and ninety-three T of chapter one hundred and seventy-five; provided, however, that the medical professional mutual insurance company may require completion of any recommended remedial actions as a condition of continued coverage. The failure to pay a co-payment or an added charge imposed by the committee shall constitute a failure to pay premium due to the medical professional mutual insurance company which may result in cancellation of insurance or the denial of coverage by the Massachusetts medical malpractice reinsurance plan approved by the commissioner. The medical professional mutual insurance company is authorized to implement remedial actions which shall continue to apply automatically to renewals of the insured's policy as provided in the experience review plan.(6) Any person aggrieved by a final determination of the committee under this section may, within thirty days from the notice of such final determination, file a complaint in the superior court for the county of Suffolk for a review of such determination. An order of notice returnable not later than twenty days from the filing of such complaint shall forthwith issue and be served upon the medical professional mutual insurance company. Within ten days after the return of said order of notice the complaint will be assigned for a speedy hearing on the merits without a jury. Unless the court orders otherwise, imposition of remedial action by the insurer shall be stayed pending review by the court. The court shall have jurisdiction to modify, amend, annul, reverse or affirm the final determination of the committee, shall review all questions of fact and law involved therein and may make any appropriate judgment. The decision of the court shall be final and conclusive on the parties. The court may make such order as to costs as it deems equitable. The court may make such rules or orders as it deems proper, governing proceedings under this section to secure prompt and speedy hearings and to expedite final decisions thereon.(7) Within thirty days from the effective date of this section the medical professional mutual insurance company shall file a proposed experience review plan with the commissioner; provided, however, that said insurer which becomes subject to this section more than thirty days after the effective date of this section, shall be required to file a proposed experience review plan within thirty days from the date said insurer becomes subject to this section. The commissioner shall either approve, disapprove or approve with modifications such plan following comment at a public hearing so that the plan is consistent with the requirements of this section. The commissioner shall sign a memorandum approving, disapproving, or approving with modifications the proposed plan in such form as he may prescribe within sixty days of the filing of such plan by the medical professional mutual insurance company and file the same in his office and cause a duly certified copy of such memorandum to be transmitted forthwith to the insurer and other parties to the public hearing. Any person who participates in the public hearing and who is aggrieved by the decision of the commissioner may, within twenty days from the filing of such decision thereof in his office, file a complaint in the supreme judicial court for the county of Suffolk for a review of such action, order, finding or decision. An order of notice returnable not later than seven days from the filing of such complaint shall forthwith issue and be served upon the commissioner. Within ten days after the return of said order of notice, the complaint shall be assigned for a speedy and summary hearing on the merits. The action, order, finding or decision of the commissioner shall remain in full force and effect pending the final decision of the court unless the court or a justice thereof after notice to the commissioner shall by a special order or otherwise direct. The court shall have jurisdiction to modify, amend, annul, reverse or affirm such action, order, finding or decision, shall review all questions of fact and of law involved therein and may make any appropriate judgment. The decision of the court shall be final and conclusive on the parties. The court may make such order as to costs as it deems equitable. The court shall make such rules or orders as it deems proper, governing proceedings under this section to secure prompt and speedy hearings and to expedite final decisions thereon.(8) Except as otherwise indicated in this section, any modifications to or termination of the experience review plan previously approved by the commissioner shall be subject to the following:(i) The approved experience review plan shall continue indefinitely until terminated or modified; provided, however, that an approved plan may contain a self-termination provision.(ii) Starting on July first, nineteen hundred and ninety-two, and on July first of every even-numbered year thereafter, the commissioner may, if he issues a request for public comment before September fifteenth of the preceding year, undertake a review of any experience review plan previously approved by him. Following such a request, he shall terminate such plan unless he finds it in accordance with this section.(iii) Starting on August first, nineteen hundred and ninety-one, and on August first of every odd-numbered year thereafter, any party interested in the experience review plan previously approved by the commissioner, including the medical professional mutual insurance company to which the plan applies, may submit proposed changes in the plan to the commissioner and the insurer whether or not public comment is formally requested under subparagraph (ii). In addition to stating the revised language of the plan, such a proposal shall contain supporting documents and discuss the reasons for the proposed changes. Only portions of a plan for which changes have been so proposed are subject to revision. After comment at a public hearing, the commissioner shall either maintain the plan in effect without change, terminate the plan, or adopt modifications to one or more portions of the plan for which changes have been proposed. Any such modifications to the plan shall be consistent with the requirements of this section, and shall not be implemented before July first of the year following the submission of the proposed change. A modification to the medical professional mutual insurance company's plan proposed by a party other than said insurer may be approved only if, on the basis of all of the materials and information which are in the record of the public hearing, the record demonstrates that the modification will the first sentence improve the effectiveness of the previously approved plan in carrying out the purposes of this section, and that such improvements will not cause costs or administrative burdens to the insurer or its policyholders which are unreasonable in relation to the benefits of the improvements.(iv) If the commissioner and the medical professional mutual insurance company agree on a proposed change, the proposed change may be made at any time, following public notice and an opportunity for comment, to become effective upon the commissioner's order.(v) Decisions under subparagraph (ii) to (iv), inclusive, shall be subject to judicial review in the supreme judicial court as provided in paragraph (7).(9) There shall be no liability on the part of, and no cause of action of any nature shall rise against, the commissioner or his authorized representatives for any statements made in good faith by them in any report or communications concerning matters covered by this section.(10) No experience review committee, medical professional mutual insurance company, individual or institution reporting, providing information, opinion, counsel or services to the experience review committee or participating in the procedures required by this section or any experience review plan approved hereunder, shall be liable in a suit for damages or subject to a cause of action of any kind by reason of having furnished such information, opinion, counsel or services or by reason of such participation; provided, however, that such individual or institution acted in good faith with a reasonable belief that said actions were warranted in connection with or in furtherance of the functions of the experience review committee or the procedures required by this section or the experience review plan approved hereunder.(b)(1) The proceedings, records and reports of the experience review committee established pursuant to this section shall be confidential and treated as described in paragraphs (2) to (9), inclusive. The records and report described in paragraphs (5) and (6) shall be exempt from disclosure as public records pursuant to section seven of chapter four.(2) Except in connection with an appeal provided in paragraph (6) of subsection (a), or a suit against any individual or institution to establish a cause of action pursuant to paragraph (10) of said subsection (a), documents identified in paragraphs (1), (5) and (6) of this subsection shall not be subject to subpoena or discovery, or introduced into evidence in any medical staff proceeding or administrative proceeding or in any judicial action; provided, however, that documents, reports or records otherwise available from original sources shall not be immune from subpoena, discovery or use in any judicial or administrative proceeding merely because they were presented to an experience review committee in connection with its proceedings. A court or administrative body may place reasonable restriction on the use which may be made of the information to which subsection (b) applies, including any decision rendered as the first sentence provided in paragraph (6) of subsection (a), so as to maintain so far as necessary or practicable the confidentiality of such information.(3) Except in connection with an appeal provided in paragraph (6) of subsection (a), or a suit against any individual or institution to establish a cause of action pursuant to paragraph (10) of said subsection (a), no person who was in attendance at the meeting of an experience review committee shall be permitted or required to testify in any medical staff proceeding or administrative proceeding or in any judicial action as to the committee's or any member's findings, recommendations, evaluations, opinion, deliberations or other actions.(4) A person who provides information to the experience review committee or who is a member of the committee shall not be prevented from testifying as to matters known to such person independent of the committee's proceedings; provided, however, that such person may not be questioned in any proceedings about the identity of any person furnishing information or opinions to the committee, opinions formed by the testifying person as a result of such committee proceedings, or about the deliberations of the experience review committee.(5) In the event of an appeal under paragraph (6) of subsection (a), the record on appeal shall be confidential and treated as provided in paragraph (2) of this subsection.(6) The medical professional mutual insurance company shall only report to the board of registration in medicine the imposition of voluntary or involuntary remedial actions described in clauses (vi) or (vii) of paragraph (3) of subsection (a). Such reports shall be considered confidential information subject to the requirements of section five of chapter one hundred and twelve. Such reports shall also be provided to the medical staff of any hospital or clinic at which such physician has privileges and to members and employed doctors of any partnership or professional corporation of which the insured is a member or employee. Any hospital or clinic receiving such a report may use the report to investigate or review the privileges available to such physician; provided, however, that any such report shall be maintained as confidential by any hospital or clinic and members or employed doctors of any partnership or professional corporation who receive it, and shall be treated as provided in paragraph (2) of this subsection.(7) On or before September first nineteen hundred and ninety and on or before April first of each year thereafter, the medical professional mutual insurance company shall submit to the division of insurance a list of insureds who have been reviewed under the experience review plan including insureds currently subject to remedial action. Such submission shall set forth each remedial action taken by the committee, if any, and such other information as shall be specified in the plan, consistent with the provisions of this section. Such submissions may be introduced in any hearing pursuant to paragraph (7) of subsection (a); provided, however, that information that identifies an individual physician in this report to the division of insurance shall be maintained as confidential and shall not be made part of any public record or proceeding.(8) No proceeding, report or record of an experienced review committee obtained hereunder in an appeal pursuant to paragraph (6) of subsection (a), any proceeding or appeal pursuant to paragraph (8) of said subsection (a), any action pursuant to paragraph (10) of said subsection (a), or a report pursuant to paragraph (6) or (7) of this subsection, shall be subject to subpoena or discovery, or introduced into evidence in judicial or administrative proceedings other than proceedings specified in paragraphs (6), (8) and (10) of said subsection (a), and paragraphs (6) and (7) of this subsection.(9) Nothing in this section shall be deemed to alter or amend any requirements that the medical professional mutual insurance company provide records or information not prepared in connection with the experience review committee to the board of registration in medicine or the commissioner of insurance, including, but not limited to, the reporting requirements set forth in section five C of chapter one hundred and twelve or as otherwise required by law.(c) As used in this section, the term ''medical malpractice insurance'' shall mean insurance coverage against the legal liability of the insured for loss, damage or expense incident to a claim rising out of the death or injury of any person as the result of negligence or malpractice in rendering professional services by any doctor of medicine or osteopathy licensed under section two of chapter one hundred and twelve.