N.Y. Military Law § 316-b: Professional liability protection for certain persons ordered to active duty in armed forces

§ 316-b. Professional liability protection for certain persons ordered

to active duty in armed forces. 1. Definitions. As used in this section:

(a) The term "active duty in state military service" means full-time

status (other than for training) with a force of the state organized

militia as defined in subdivision one of section two of this chapter.

(b) The term "active duty in military service of the United States"

means full-time status (other than for training) in the United States

armed forces as defined in subdivision eight of section one of this

chapter.

(c) The term "profession" includes occupation.

(d) The term "professional" includes occupational.

2. Applicability. This section applies to any person who:

(a) is ordered to active duty (other than for training) in either

state military service pursuant to subdivision one of section six of

this chapter, or in the military service of the United States pursuant

to title 10 of the United States Code; and

(b) immediately before receiving the order to active duty:

(i) was engaged in the furnishing of health-care services or other

services determined by the secretary of state to be professional

services; and

(ii) had in effect a professional liability insurance policy that does

not continue to cover claims filed with respect to such person during

the period of the person's active duty unless the premiums are paid for

such coverage for such period.

3. Suspension of coverage. (a) Coverage of a person referred to in

subdivision two of this section by a professional liability insurance

policy shall be suspended in accordance with this subdivision if the

insured requests such suspension in writing and delivers it to the

insurance carrier by certified mail. The request shall be effective upon

mailing.

(b) A professional liability insurance carrier:

(i) shall not require that premiums be paid by or on behalf of a

person for any professional liability insurance coverage suspended

pursuant to paragraph (a) of this subdivision; and

(ii) shall refund any amount paid for coverage for the period of such

suspension or, upon the election of such person, apply such amount for

the payment of any premium becoming due upon the reinstatement of such

coverage.

(c) A professional liability insurance carrier shall not be liable

with respect to any claim that is based on professional conduct

(including any failure to take any action in a professional capacity) of

a person that occurs during a period of suspension of that person's

professional liability insurance under this subdivision. For the

purposes of the preceding sentence, a claim based upon the failure of a

professional to make adequate provision for patients to be cared for

during the period of the professional's active duty service shall be

considered to be based on an action or failure to take action before the

beginning of the period of suspension of professional liability

insurance under this section, except in a case in which professional

services were provided after the date of the beginning of such period.

4. Reinstatement of coverage. (a) Professional liability insurance

coverage suspended in the case of any person pursuant to subdivision

three of this section shall be reinstated by the insurance carrier on

the date on which that person sends by certified mail to the insurance

carrier a written request for reinstatement.

(b) The request of a person for reinstatement shall be effective upon

mailing only if the person mails the request to the insurance carrier by

certified mail within thirty days after the date on which the person is

released from active duty. The insurance carrier shall notify the person

of the due date for payment of the premium of such insurance. Such

premium shall be paid by the person within thirty days after the

effective date of that notice.

(c) The period for which professional liability insurance coverage

shall be reinstated for a person under this subdivision shall not be

less than the balance of the period for which coverage would have

continued under the insurance policy if the coverage had not been

suspended.

5. Increase in premium. An insurance carrier shall not increase the

amount of the premium charged for professional liability insurance

coverage of any person for the minimum period of the reinstatement of

such coverage required under paragraph (c) of subdivision four of this

section to an amount greater than the amount chargeable for such

coverage for such period before the suspension, except to the extent of

any general increase in the premium amounts charged by that carrier for

the same professional liability coverage for persons similarly covered

by such insurance during the period of the suspension.

6. Continuation of coverage of unaffected persons. This section does

not:

(a) require a suspension of professional liability insurance coverage

for any person who is not a person referred to in subdivision two of

this section and who is covered by the same professional liability

insurance as a person referred to in such subdivision; or

(b) relieve any person of the obligation to pay premiums for the

coverage not required to be suspended.

7. Stay of civil or administrative actions. (a) A civil or

administrative action for damages on the basis of the alleged

professional negligence or other professional liability of a person

whose professional liability insurance coverage has been suspended under

subdivision three of this section shall be stayed until the end of the

period of the suspension if:

(i) the action was commenced during that period;

(ii) the action is based on an act or omission that occurred before

the date on which the suspension became effective; and

(iii) the suspended professional liability insurance would, except for

the suspension, on its face cover the alleged professional negligence or

other professional liability negligence or other professional liability

of the person.

(b) Whenever a civil or administrative action for damages is stayed

pursuant to subparagraph (i) of paragraph (a) of this subdivision in the

case of any person, the action shall be deemed to have been filed on the

date on which the professional liability insurance coverage of such

person is reinstated under subdivision four of this section.

8. Effect of suspension upon limitations period. In the case of a

civil or administrative action for which a stay could have been granted

under subdivision seven of this section by reason of the suspension of

professional liability insurance coverage of the defendant under this

subdivision, the period of the suspension of the coverage shall be

excluded from the computation of any statutory period of limitation on

the commencement of such action.

9. Death during period of suspension. If a person whose professional

liability insurance coverage is suspended pursuant to subdivision three

of this section dies during the period of the suspension:

(a) the requirement for the grant or continuance of a stay in any

civil or administrative action against such person pursuant to paragraph

(a) of subdivision seven of this section shall terminate on the date of

the death of such person; and

(b) the carrier of the professional liability insurance so suspended

shall be liable for any claim for damages for professional negligence or

other professional liability of the deceased person in the same manner

and to the same extent as such carrier would be liable if the person had

died while covered by such insurance but before the claim was filed.