50 U.S.C. § 4023 — Professional liability protection

Page 1016 TITLE 50—WAR AND NATIONAL DEFENSE § 4023 section (a) if the document by its terms clearly indicates that the power granted expires on the date specified even though the servicemember, after the date of execution of the document, en- ters a missing status. (Oct. 17, 1940, ch. 888, title VII, § 702, as added Pub. L. 108–189, § 1, Dec. 19, 2003, 117 Stat. 2861.) Editorial Notes CODIFICATION Section was formerly classified to section 592 of the former Appendix to this title prior to editorial reclassi- fication and renumbering as this section. PRIOR PROVISIONS A prior section 702 of act Oct. 17, 1940, ch. 888, art. VII, as added Pub. L. 102–12, § 4, Mar. 18, 1991, 105 Stat. 34; amended Pub. L. 104–106, div. A, title XV, § 1501(e)(3), Feb. 10, 1996, 110 Stat. 501, related to professional liabil- ity protection for certain persons ordered to active duty in armed forces, prior to the general amendment of this Act by Pub. L. 108–189. See section 4023 of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section applicable to any case not final before Dec. 19, 2003, see section 3 of Pub. L. 108–189, set out as a note under section 3901 of this title. § 4023. Professional liability protection (a) Applicability This section applies to a servicemember who— (1) after July 31, 1990, is ordered to active duty (other than for training) pursuant to sec- tions 688, 12301(a), 12301(g), 12302, 12304, 12306, or 12307 of title 10 or who is ordered to active duty under section 12301(d) of such title during a period when members are on active duty pursuant to any of the preceding sections; and (2) immediately before receiving the order to active duty— (A) was engaged in the furnishing of health-care or legal services or other serv- ices determined by the Secretary of Defense to be professional services; and (B) had in effect a professional liability in- surance policy that does not continue to cover claims filed with respect to the servicemember during the period of the servicemember’s active duty unless the pre- miums are paid for such coverage for such period. (b) Suspension of coverage (1) Suspension Coverage of a servicemember referred to in subsection (a) by a professional liability insur- ance policy shall be suspended by the insur- ance carrier in accordance with this sub- section upon receipt of a written request from the servicemember by the insurance carrier. (2) Premiums for suspended contracts A professional liability insurance carrier— (A) may not require that premiums be paid by or on behalf of a servicemember for any professional liability insurance coverage suspended pursuant to paragraph (1); and (B) shall refund any amount paid for cov- erage for the period of such suspension or, upon the election of such servicemember, apply such amount for the payment of any premium becoming due upon the reinstate- ment of such coverage. (3) Nonliability of carrier during suspension A professional liability insurance carrier shall not be liable with respect to any claim that is based on professional conduct (includ- ing any failure to take any action in a profes- sional capacity) of a servicemember that oc- curs during a period of suspension of that servicemember’s professional liability insur- ance under this subsection. (4) Certain claims considered to arise before suspension For the purposes of paragraph (3), a claim based upon the failure of a professional to make adequate provision for a patient, client, or other person to receive professional services or other assistance during the period of the professional’s active duty service shall be con- sidered to be based on an action or failure to take action before the beginning of the period of the suspension of professional liability in- surance under this subsection, except in a case in which professional services were provided after the date of the beginning of such period. (c) Reinstatement of coverage (1) Reinstatement required Professional liability insurance coverage suspended in the case of any servicemember pursuant to subsection (b) shall be reinstated by the insurance carrier on the date on which that servicemember transmits to the insur- ance carrier a written request for reinstate- ment. (2) Time and premium for reinstatement The request of a servicemember for rein- statement shall be effective only if the servicemember transmits the request to the insurance carrier within 30 days after the date on which the servicemember is released from active duty. The insurance carrier shall notify the servicemember of the due date for pay- ment of the premium of such insurance. Such premium shall be paid by the servicemember within 30 days after receipt of that notice. (3) Period of reinstated coverage The period for which professional liability insurance coverage shall be reinstated for a servicemember under this subsection may 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. (d) Increase in premium (1) Limitation on premium increases An insurance carrier may not increase the amount of the premium charged for profes- sional liability insurance coverage of any servicemember for the minimum period of the reinstatement of such coverage required under subsection (c)(3) to an amount greater than the amount chargeable for such coverage for such period before the suspension. (2) Exception Paragraph (1) does not prevent an increase in premium to the extent of any general in- Page 1017 TITLE 50—WAR AND NATIONAL DEFENSE § 4024 crease in the premiums charged by that car- rier for the same professional liability cov- erage for persons similarly covered by such in- surance during the period of the suspension. (e) Continuation of coverage of unaffected per- sons This section does not— (1) require a suspension of professional li- ability insurance protection for any person who is not a person referred to in subsection (a) and who is covered by the same profes- sional liability insurance as a person referred to in such subsection; or (2) relieve any person of the obligation to pay premiums for the coverage not required to be suspended. (f) Stay of civil or administrative actions (1) Stay of actions A civil or administrative action for damages on the basis of the alleged professional neg- ligence or other professional liability of a servicemember whose professional liability in- surance coverage has been suspended under subsection (b) shall be stayed until the end of the period of the suspension if— (A) the action was commenced during the period of the suspension; (B) the action is based on an act or omis- sion that occurred before the date on which the suspension became effective; and (C) the suspended professional liability in- surance would, except for the suspension, on its face cover the alleged professional neg- ligence or other professional liability neg- ligence or other professional liability of the servicemember. (2) Date of commencement of action Whenever a civil or administrative action for damages is stayed under paragraph (1) in the case of any servicemember, the action shall have been deemed to have been filed on the date on which the professional liability in- surance coverage of the servicemember is rein- stated under subsection (c). (g) Effect of suspension upon limitations period In the case of a civil or administrative action for which a stay could have been granted under subsection (f) by reason of the suspension of pro- fessional liability insurance coverage of the de- fendant under this section, the period of the sus- pension of the coverage shall be excluded from the computation of any statutory period of limi- tation on the commencement of such action. (h) Death during period of suspension If a servicemember whose professional liabil- ity insurance coverage is suspended under sub- section (b) dies during the period of the suspen- sion— (1) the requirement for the grant or continu- ance of a stay in any civil or administrative action against such servicemember under sub- section (f)(1) shall terminate on the date of the death of such servicemember; and (2) 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 servicemember in the same manner and to the same extent as such carrier would be liable if the servicemember had died while covered by such insurance but before the claim was filed. (i) Definitions For purposes of this section: (1) Active duty The term ‘‘active duty’’ has the meaning given that term in section 101(d)(1) of title 10. (2) Profession The term ‘‘profession’’ includes occupation. (3) Professional The term ‘‘professional’’ includes occupa- tional. (Oct. 17, 1940, ch. 888, title VII, § 703, as added Pub. L. 108–189, § 1, Dec. 19, 2003, 117 Stat. 2862.) Editorial Notes CODIFICATION Section was formerly classified to section 593 of the former Appendix to this title prior to editorial reclassi- fication and renumbering as this section. PRIOR PROVISIONS A prior section 703 of act Oct. 17, 1940, ch. 888, art. VII, as added Pub. L. 102–12, § 5(b), Mar. 18, 1991, 105 Stat. 37, related to reinstatement of health coverage upon release from service, prior to the general amend- ment of this Act by Pub. L. 108–189. See section 4024 of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section applicable to any case not final before Dec. 19, 2003, see section 3 of Pub. L. 108–189, set out as a note under section 3901 of this title. § 4024. Health insurance reinstatement (a) Reinstatement of health insurance A servicemember who, by reason of military service as defined in section 4023(a)(1) of this title, is entitled to the rights and protections of this chapter shall also be entitled upon termi- nation or release from such service to reinstate- ment of any health insurance that— (1) was in effect on the day before such serv- ice commenced; and (2) was terminated effective on a date during the period of such service. (b) No exclusion or waiting period The reinstatement of health care insurance coverage for the health or physical condition of a servicemember described in subsection (a), or any other person who is covered by the insur- ance by reason of the coverage of the servicemember, shall not be subject to an exclu- sion or a waiting period, if— (1) the condition arose before or during the period of such service; (2) an exclusion or a waiting period would not have been imposed for the condition dur- ing the period of coverage; and (3) in a case in which the condition relates to the servicemember, the condition has not been determined by the Secretary of Veterans Affairs to be a disability incurred or aggra-