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Review Requirements Checklist Medical Professional Liability

Updated 10/3/2016 - Return to Index

Indicates new addition since last update.Indicates new addition since last update

Medical Professional Liability Checklist
REVIEW REQUIREMENTS REFERENCE COMMENTS
FORMS
Filing Standards - Policy forms and endorsements may not be unjust, unfair, inequitable, misleading or deceptive.
Prior Approval of Policy Forms and Endorsements Chapter 2301, Texas Insurance Code An insurance policy form or endorsement may not be delivered or issued for delivery in this state unless the form has been filed with and approved by the commissioner. Each filing shall be made not later than the 60th day before the date of any use or delivery for use.
Large Risk Exemption §2301.004, Texas Insurance Code Policy forms for use with large risks are exempt from filing for prior approval if the forms are to be used with a "large risk". "Large Risk" is defined as an insured that has total insured property values of $5 million or more; an insured that has total annual gross revenues of $10 million or more; or an insured that has a total premium of $25,000 or more for property insurance, $25,000 or more for general liability insurance, or $50,000 or more for multiperil insurance.
Disapproval of Forms; Withdrawal of Approval §2301.007, Texas Insurance Code The commissioner may disapprove a form filed under §2301.006 or withdraw approval of a form if the form (1) violates any law, including a rule adopted under the Texas Insurance Code, or (2) contains a provision or has a title or heading that is unjust or deceptive, encourages misrepresentation, or violates public policy.
Applications
Not Required to be Filed For Approval Unless Being Made a Part of the Policy
Arbitration
Arbitration Chapter 2301, Texas Insurance Code Language used in arbitration agreements is to be consistent with that of the policy: to wit, don't use the word "parties" when you actually mean insured(s) and insurer. Binding arbitration is okay. Arbitration agreements may be mandatory. Arbitration must be held in Texas for Texas policyholders unless mutually agree on an alternate. In general, arbitration language cannot be unjust, misleading or deceptive.
Cancellation & Nonrenewal
Professional Liability Insurance for Physicians and Health Care Providers §1901.253, Texas Insurance Code An insurer who issues a policy of professional liability insurance covering a healthcare provider or physician shall give at least 90 days written notice to an insured if premiums on the insurance are to be increased or the policy is to be cancelled or is not to be renewed other than for nonpayment of premiums or because the insured is no longer licensed. If the premiums are to be increased, the notice shall state the amount of the increase, and if the policy is to be cancelled or is not to be renewed, the insurer shall state in the notice the reason for cancellation or nonrenewal. Notice of cancellation under this section may only be given within the first 90 days from the effective date of the policy. 90 day notice is not required for nonpayment of premiums or because the insured is no longer licensed.
Elected Officials §§551.151 & 551.152, Texas Insurance Code An insurer may not cancel or refuse to renew an insurance policy based solely on the fact that the policyholder is an elected official.
Insured's Right to Cancel Chapter 2301, Texas Insurance Code Insurance company cannot limit or restrict the insured's right to cancel a policy.
Voiding Coverage Chapter 705, Texas Insurance Code "Void Coverage" language must comply with Chapter 705, Subchapter A, and the misrepresentation must be material.
Choice of Law
Texas Laws Govern Policies Article 21.42, Texas Insurance Code Texas must be choice if filing contains choice of law provision.
Claims Made Policies
Disclosure Required Chapter 2301, Texas Insurance Code If the policy is a claims made policy a disclosure to that effect must be prominently displayed on either or both the declaration sheet or the first page of the policy. The disclosure must be plainly readable bold type.
30-Day Extended Reporting Period Required Chapter 2301, Texas Insurance Code The insured must be given at least an automatic 30-day extended reporting period to report claims becoming known too late to report before the end of the policy period.
Policy Provision Required Chapter 2301, Texas Insurance Code A policy provision advising the insureds of a right to purchase an extended reporting endorsement. The policy must give the insured a minimum of thirty days to purchase the extended reporting endorsement and the minimum term of the extended reporting period must be at least one year. An extended reporting period unlimited in time must be available.
Claims Settlement
Prompt Payment of Claims §§542.051 - 542.061, Texas Insurance Code Prompt payment of claims. (1st Party Coverage - "Pay to," "indemnify," or "reimburse" the insured. Not "pay on behalf of".)
Notice of Settlement of Liability Claims §§542.151 - 542.154, Texas Insurance Code Notice of settlement of a claim under casualty policy. EXCEPTION - This article does not apply to a casualty policy that requires the insured's consent to settlement of a claim against the insured; or to fidelity, surety, or guaranty bonds. Professional Liability policies for individual physicians must contain a consent to settle provision. A "hammer" clause may accompany the consent-to-settle provision.
Contractual Limitations Period - Suits §16.070, Civil Practice & Remedies Except as provided by Subsection (b), a person may not enter a stipulation, contract, or agreement that purports to limit the time in which to bring suit on the stipulation, contract, or agreement to a period shorter than two years. A stipulation, contract, or agreement that establishes a limitations period that is shorter than two years is void in this state. The Texas Third Court of Appeals issued an opinion that acknowledges that the language providing 2 years and 1 day from the date the cause of action first accrues satisfies the statutory requirement of §16.070, Civil Practices and Remedy Code. ( http://www.search.txcourts.gov/Case.aspx?cn=03-08-00408-CV) Case #03-08-00408-CV
Notice Requirements §16.071, Civil Practice & Remedies A contract stipulation that requires a claimant to give notice of a claim for damages as a condition precedent to the right to sue on the contract is not valid unless the stipulation is reasonable. A stipulation that requires notification within less than 90 days is void.
Providing Certain Claims Information On Request §§542.101-542.104, Texas Insurance Code; and Commissioner's Bulletin No. B-0043-05 If a policy form or endorsement contains language addressing the request or furnishing of claims information, it would need to comply with the applicable statute(s).
Exclusions
Abuse, Physical Abuse or Molestation Exclusions Chapter 2301, Texas Insurance Code Definition of "abuse" in abuse, physical abuse, or molestation exclusion must be included. Must include wording, "For purposes of this endorsement, abuse means an act which is committed with the intent to cause harm".
Coverage Issues
Examination Under Oath Chapter 2301, Texas Insurance Code If policy language requires examination under oath for anyone other than the named insured and spouse, the provision must also state that a parent or guardian may be present during any examination of a minor.
Punitive Damages Under Medical Professional Liability Insurance §1901.252, Texas Insurance Code No policy of medical professional liability insurance issued to or renewed for a physician or health care provider may include coverage for punitive damages that may be assessed against the health care provider or physician. However, the commissioner may approve an endorsement form that provides for coverage for punitive damages to be used on a policy of medical professional liability insurance issued to a hospital or to a nursing home.
Fully Earned Premium / Retention of Minimum Earned Premium
Fully Earned Premium / Retention of Minimum Earned Premium Chapter 2251 & Chapter 2301, Texas Insurance Code and 28 TAC §5.9320, Texas Administrative Code TDI will consider approving fully earned premium only for risks with exposure during a period certain, such as special events and weather policies.

TDI will consider approving minimum earned premium only if it is a nominal amount.

The company must file appropriate rates associated with a minimum or fully earned premium.
General Change Endorsements
May Not Manuscript Coverage Once Approved Chapter 2301, Texas Insurance Code Coverage forms are prior approval. Change endorsements may be used to change insured address, etc. but may not be used to change, alter or "clarify" coverage in any way. Company must provide verification that the endorsement will not be used to change, alter, or clarify coverage.
Rebating or Discrimination
Rebating or Discrimination Chapter 1806, Texas Insurance Code Inducements prohibited.
Toll Free Information
Notice of Policyholder Complaint Procedures §521.005, Texas Insurance Code A brief written notice of suggested procedure to be followed by the policyholder in the event of a dispute concerning a policyholder's claim or premium.
Toll-Free Information & Complaint Number §§521.051 - 521.056, Texas Insurance Code Toll-Free number for the Texas Department of Insurance.
Insurer's Toll-Free Information & Complaint Number §§521.101 - 521.103, Texas Insurance Code Insurer's requirement to maintain toll-free number to provide information concerning policies issued by the insurer and to accept complaints from policyholder. Article contains an exception for insurers whose gross initial premium receipts collected in this state are less than $2 million a year or to an insurer with regard to fidelity, surety, or guaranty bonds.
Notice of Toll-Free Telephone Numbers and Information & Complaint Procedures Indicates new addition since last update.28 TAC §1.601 & §1.602, Texas Administrative Code and Commissioner’s Order 3952 To satisfy requirements for §521.005, §§521.051 - 521.056, and §§521.101 - 521.103 noted above.
Texas Lloyds, Mutual, Reciprocals and Participating Stock Cos.
Special Policy Conditions General Casualty Bulletins Nos. 276, 443, and 446 Requiring specific language be contained in policies issued by Lloyds, Mutuals, Reciprocals, and Participating Stock Companies.
RATES
Filing Standards
File & Use Chapter 2251, Texas Insurance Code Each insurer shall file with the Commissioner all rates, supplementary rating information, and reasonable and pertinent supporting information for risks written in this state.
Elimination of (a) Rates Commissioner's Bulletin No. B-0022-95 Chapter 2251 does not provide for the filing of rates on an individual basis. Each insurer shall file with the Commissioner all rates, supplementary rating information, and reasonable and pertinent supporting information for risks written in this state.
RULES
Filing Standards
File & Use Chapter 2301 & Chapter 2251, Texas Insurance Code Manual rules should reflect specific requirements for usage of policy forms, endorsements, and disclosures.
Required Documentation
Refer to Property & Casualty Filings Made Easy Go to Property & Casualty Filings Made Easy now


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Last updated: 10/21/2016

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