Key Takeaways:

• The Massachusetts Office of Consumer Affairs and Business Regulations, Division of Insurance has issues a bulletin for all insurers and risk retention groups offering medical malpractice insurance in Massachusetts

• The bulletin requires insurers and risk retention groups to review their policies to ensure existing coverage will apply to health care professionals responding to the COVID-19 crisis

• Insurers should anticipate a wave of medical malpractice claims resulting from the COVID-19 crisis

On March 27, 2020, the Massachusetts Office of Consumer Affairs and Business Regulations, Division of Insurance, issued Bulletin 2020-08, obligating all insurers and risk retention groups offering medical malpractice insurance in Massachusetts to review their policies to “ensure that existing coverage will apply to health care professionals who are acting within the scope of their professional license when they respond to the COVID-19 public health crisis[.]” This bulletin comes during a time of growing concern over the stress that the COVID-19 pandemic is placing on health care professionals throughout the country.

The bulletin emphasizes that medical malpractice insurance coverage “plays a critical role in the stability of the Commonwealth’s economy and the protection of its residents,” and recognizes that the unique burden the COVID-19 pandemic has placed on the Commonwealth’s health care system will create issues that the industry’s standard practices cannot accommodate. As an example, the bulletin refers to Gov. Charlie Baker’s March 17, 2020 order directing the Commonwealth’s “Board of Registration in Medicine to adopt certain policies and procedures for the licensure of physicians, including related to emergency licenses and limited licenses.” It also refers to an order “extending the registrations of registered nurses, licensed practical nurses, pharmacists and physician assistants, and authoring the practice of telemedicine across state lines[.]” The bulletin asks that, notwithstanding these changes, the coverage provided by medical malpractice insurers provide “flexibility where needed” to ensure existing coverage to these health care professionals.

We anticipate claims against health care providers based on their provision of, or failure to provide, medical services related to COVID-19, particularly given the unique stress placed on the health care system from this pandemic. This bulletin aims to ensure that medical professionals can “be secure that their Medical Malpractice Carrier will defend them in the case of a patient’s lawsuit,” notwithstanding the changing environment resulting from the pandemic, and the increased risks associated therewith.

For more information or immediate guidance, contact:

• Jeffrey L. Kingsley
• David L. Brown
• Steven P. Nassi
• Adam R. Durst
• Or another member of our Global Insurance Services practice or Coronavirus Coverage Team