CHAPTER 33 - MEDICAL MALPRACTICE INSURANCE

(iii) "Health care" means any act or treatment performed or furnished, or which should have been performed or furnished, by any physician for, to, or on behalf of a patient during the patient's medical care, treatment or confinement;

(iv) "Insurer" means an authority or an insurance company engaged in writing malpractice liability insurance in this state in accordance with this code;

(v) "Malpractice" means the rendering of or failure to render professional medical services as a result of which the patient has a cause of action against a licensed physician for monetary damages;

(vi) "Physician" means a person licensed by the state board of medicine to provide health care or professional services as a physician.

(a) To be qualified under this chapter, a physician shall annually purchase health care professional liability insurance coverage of not less than fifty thousand dollars ($50,000.00) per occurrence for any act, error or omission relating to medical care rendered during the policy year and pay the surcharge pursuant to W.S. 26-33-105(c).

(b) A physician failing to qualify under this section is not covered by this chapter.

A qualified physician shall be insured in a minimum amount of fifty thousand dollars ($50,000.00) against a claim for malpractice. Any award or settlement adjudicated or allowed on a malpractice claim in excess of fifty thousand dollars ($50,000.00) or limits of other underlying coverage if greater occurring during any year in which the physician is qualified under this chapter shall be paid from the account subject to the limitation that obligations from the account shall not exceed one million dollars ($1,000,000.00) in any calendar year for one (1) or more awards or settlements against an individual physician.

Any advance payment a defendant physician or his insurer makes to or for the plaintiff, or any other person, is not an admission of liability for injuries or damages the plaintiff or anyone else suffers as to a claim for malpractice. Evidence of an advance payment is not admissible in a court proceeding concerning malpractice until there is final determination in the plaintiff's favor, in which case the final amount payable shall be reduced by any advance payments.

(a) There is created a medical liability compensation account, the monies of which shall be collected by the commissioner for exclusive use for the purposes stated in this chapter. The account and any investment income from it shall be held in trust and invested and reinvested by the state treasurer pursuant to W.S. 9-4-715(a), (d) and (e).

(b) The commissioner may use account monies to purchase insurance for the account and its obligations. The commissioner shall be notified of a suit within thirty (30) days from the date the suit is filed. The commissioner may participate in a physician's defense if any claim is sufficient to be a potential liability against the account. Reasonable legal expenses the board approves and the commissioner incurs in defense against any malpractice claim are payable out of the account.

(c) To create the account, all physicians qualified under W.S. 26-33-102, practicing in Wyoming and who elect to participate, shall pay an annual surcharge. The commissioner shall determine the surcharge based upon sound actuarial principles using data obtained from Wyoming experience. The surcharge shall not exceed one hundred fifty percent (150%) of the cost to each physician for a basic fifty thousand dollar ($50,000.00) malpractice insurance premium and shall be collected on the same basis as premiums by each insurer from the physician.

(d) The surcharge is due and payable within thirty (30) days after the insurer receives the premiums for malpractice liability insurance from the practicing physician in Wyoming. The commissioner shall send to each insurer a statement explaining the provisions of this section together with any other information necessary for their compliance with this section.

(e) If the insurer collects the annual premium surcharge but does not pay it to the state within the stated time limit, the commissioner may suspend the insurer's certificate of authority until the annual premium surcharge is paid.

(f) All expenses of collecting, protecting and administering the account or related to the purchase of insurance for the account shall be paid from the account. The commissioner may employ financial, administrative or legal consultants to assist in the account management.

(g) If the account balance exceeds four million dollars ($4,000,000.00) at the end of any calendar year after payment of all claims and expenses, the commissioner shall reduce the surcharge to maintain the account at an approximate level of four million dollars ($4,000,000.00).

(h) The commissioner shall purchase reinsurance, if needed, to protect the account from depletion due to judgment against it. The reinsurance so purchased shall cover each qualified physician from two hundred fifty thousand dollars ($250,000.00) to one million dollars ($1,000,000.00) per year. Cost of reinsurance shall be paid from the monies of the account.

(a) There is created a medical liability compensation account board which shall consist of six (6) members. The governor shall appoint four (4) members with the advice and consent of the senate. The state treasurer and the commissioner are the other voting members. The governor may remove any member he appoints as provided in W.S. 9-1-202.

(b) Of the members the governor appoints:

(i) One (1) shall be a physician licensed to practice in Wyoming by the state board of medicine;

(ii) One (1) shall be a practicing attorney licensed to practice in Wyoming by the Wyoming state bar;

(iii) One (1) shall be a health care consumer; and

(iv) One (1) shall be a licensed insurance agent in Wyoming.

(c) Two (2) members shall serve for terms ending two (2) years from January 1 immediately following their appointment and two (2) members shall serve for a term of four (4) years from that date. Their successors shall serve for terms of three (3) years each. Effective July 1, 1979, appointments and terms shall be in accordance with W.S. 28-12-101 through 28-12-103.

(d) The board shall administer and govern the account and shall file rules and regulations therefor with the secretary of state.

Any settlement of a claim against a physician exceeding fifty thousand dollars ($50,000.00) or limits of other underlying coverage if greater shall be carried out through agreement jointly by the claimant, the insurance carrier and the commissioner. If the claimant settles with the insurance carrier, without including the commissioner in the settlement agreement, the claimant waives any claim for damages exceeding fifty thousand dollars ($50,000.00) or limits of other underlying coverage if greater arising from the incident for which the claim is made.

The state auditor, at the direction of the commissioner, shall issue a warrant in satisfaction of each claim submitted to him against the account after receipt of a certified copy of a final judgment from a court having jurisdiction, or a settlement agreement signed by a claimant, a qualified representative of the insurance carrier and the commissioner, with original signatures. The warrant shall be for the amount exceeding fifty thousand dollars ($50,000.00) or limits of other underlying coverage, if greater, set forth in the judgment or settlement, subject to the limitation that the amounts paid from the account shall not exceed one million dollars ($1,000,000.00) in any calendar year for one (1) or more awards or settlements against an individual physician.

Any policy issued under this chapter is presumed to comply with this chapter. The insurer assumes all obligations to pay an award imposed against its insured under this chapter and no policy termination by cancellation is effective unless at least ninety (90) days before the effective date of the cancellation both the insured and the commissioner receive at their offices, a written notice giving the date upon which termination is effective.

(a) If a professional liability insurer, in the regular course of business, fails to pay its portion of any judgment rendered against any physician or any other person insured under this chapter, the commissioner shall suspend that insurer's certificate of authority until the portion of the judgment allocable to the insurer is paid in full, provided the insurer has the right to a hearing in accordance with W.S. 26-3-115(b).

(b) This section does not apply:

(i) If the insurer has asserted against the physician any policy defense based upon misrepresentation, fraud, noncooperation or any other matter which constitutes an avoidance of the policy;