Occurrence vs Claims-Made Malpractice Insurance in New York

TL;DR. Occurrence malpractice policies cover claims based on when the alleged act happened. Claims-made policies cover claims only when both the act and the claim report fall inside an active policy. New York is one of the few states where occurrence coverage is still genuinely available, largely through MLMIC. The choice drives tail exposure, retroactive-date rules, and lifetime cost, particularly given CPLR 214-a and Lavern's Law.

Most New York physicians inherit a policy form rather than choose one. Their residency program, first employer, or carrier default decides it for them. That inheritance shapes premium for thirty years, determines whether tail coverage appears at retirement, and changes how employment contracts should be drafted. The choice deserves fifteen minutes of real attention.

This piece compares the two forms on the dimensions that actually matter in New York: how each responds, how retroactive dates work, what the five, ten, and twenty-year cost trajectory looks like, why New York still offers both, and how to pick by career stage. For deeper context on specialty rates and carrier mechanics, see our medical malpractice insurance guide for New York.

How each policy form actually works

Occurrence and claims-made are two different triggers for the same product. An occurrence policy responds based on when the alleged negligent act happened. A claims-made policy responds based on when the claim is first reported to the carrier, so long as the act itself occurred after the policy's retroactive date and the report falls inside an active policy period or an Extended Reporting Endorsement (tail).

The difference matters because New York patients have a long window to file. Under CPLR 214-a, a medical malpractice action must generally be brought within two years and six months from the act, omission, or end of continuous treatment for the same condition. Infancy tolling under CPLR 208 can extend that window up to ten years for pediatric claims. Lavern's Law, effective January 31, 2018, adds a discovery rule capped at seven years from the act for cancer-misdiagnosis claims.

Under an occurrence policy, a claim reported in 2034 alleging negligence in 2026 is still covered by the 2026 policy year. Limits from that 2026 policy apply. Under a claims-made policy, the same claim requires the 2026 policy to still be active in 2034 (it is not) or a tail endorsement to be in place. Without tail, the claim is uncovered.

Quick comparison:

• Trigger: Occurrence responds to act date. Claims-made responds to report date.
• Tail required at exit? No for occurrence. Yes for claims-made.
• Retroactive date? N/A for occurrence. Present for claims-made, determines backward-reach.
• Premium in year one: Occurrence higher. Claims-made lower (step-rated).
• Premium at step 5 and beyond: Occurrence 10–25% higher than mature claims-made.
• Total cost including tail: Typically comparable, sometimes occurrence lower net of tail.

The structural advantage of occurrence is simplicity at exit. The structural advantage of claims-made is cash-flow timing in the early years and a step-rated discount that rewards new physicians.

Retroactive dates and nose coverage

Claims-made policies carry a retroactive date, often shown as the "prior acts date" on the declarations page. The policy will not respond to any claim arising from an act before that date. When a physician switches claims-made carriers, the new policy's retroactive date determines whether prior-practice exposure is covered.

Two mechanisms bridge the gap. Tail coverage, bought from the outgoing carrier, keeps the old policy's reporting window open. Nose coverage, formally prior-acts coverage written by the new carrier, backdates the new policy's retroactive date to pick up prior exposure. Most New York physicians buy one or the other at carrier switches, rarely both. For the full mechanics, see our sibling insight on tail coverage.

Occurrence policies do not use retroactive dates. The policy year covers acts during that year, period. A physician on ten consecutive one-year occurrence policies has ten distinct policy years stacked against the lifetime reporting window. Each year's limits stand alone. No tail, no nose, no gap.

This is where the form choice compounds at carrier switches. A physician who has been on claims-made for seven years, then moves to a new employer, must either carry tail from the old carrier or secure nose coverage on the new one. A physician on occurrence who moves simply stops writing new premium on the old policy. The old policy years remain in force for whatever claims come in.

Cost trajectories over 5, 10, and 20 years

Claims-made policies are step-rated. Year one typically prices at 30–40% of the mature (step-5) premium. Year two steps up to roughly 60%, year three to 75%, year four to 90%, and year five hits mature premium. The discount reflects that a new claims-made physician has less accumulated reporting exposure than one who has been on the form for five years.

Occurrence policies do not step-rate the same way. Year one premium is close to what years five and beyond will look like, because the policy carries full reporting-tail exposure built in from day one. Typical occurrence premium in New York runs 10–25% above mature claims-made at the same limits, based on NY DFS rate filings for MLMIC and other admitted malpractice carriers.

The honest comparison is total cost over a career, not single-year premium. Over ten years of continuous practice followed by an exit event, a claims-made physician pays step-rated premium years one through five, mature premium years six through ten, and then tail at 150–200% of the final year's premium. An occurrence physician pays near-mature premium for all ten years and nothing at exit.

On identical limits and specialty, the total-cost gap typically closes inside 20% either direction. Occurrence wins the total-cost comparison when: the physician stays in the same carrier and specialty for 5–8 years, tail will not be employer-paid at exit, and the specialty carries high reporting exposure (OB/GYN, general surgery, any cancer-diagnostic role). Claims-made wins when: the physician expects employer-paid tail, will change carriers or specialties multiple times, or needs the early-year cash-flow relief of step-rated premiums.

For specialty-specific premium context, see our guides on OB/GYN malpractice insurance in New York, orthopedic surgery malpractice insurance in New York, and general surgery malpractice insurance in New York.

Why NY still has real occurrence-policy availability

New York is an outlier. In most states, occurrence malpractice policies effectively disappeared during the 1980s hard market, when commercial carriers withdrew the form over tail-liability concerns. Today the national default is claims-made. New York kept a functioning occurrence market largely because of its admitted-carrier structure.

MLMIC, domiciled in New York and regulated by NY DFS, has historically filed both occurrence and claims-made forms for New York physicians. As the dominant admitted physician-malpractice carrier in the state, its form availability sets the market. Other admitted carriers, including EmPRO and The Doctors Company, write primarily claims-made in New York, though specific program structures vary.

The policy implication is that a New York physician has a real choice that physicians in Texas, Florida, or California typically do not. That choice interacts with New York's long statutory reporting windows, particularly for the specialties exposed to Lavern's Law's cancer-discovery rule. For any specialty touching cancer diagnostics, the built-in lifetime reporting of an occurrence policy aligns cleanly with the seven-year outer cap.

The policy implication is also carrier-concentration risk. A physician choosing occurrence through MLMIC is choosing both a form and a single carrier. That is a different kind of exposure than choosing a form offered by multiple claims-made carriers in a competitive book.

Which to pick by career stage

The choice is less about form and more about career arc. Four profiles capture most New York physicians.

Residents and new attendings (years 1–3): Claims-made is the practical default. Step-rated premium preserves cash flow during early-career income growth. Employer-paid tail is a negotiable term in most attending contracts, which blunts the downstream exposure. Read the tail clause carefully before signing, particularly the vesting schedule, termination-for-cause language, and allocation on separation.

Mid-career physicians (years 4–15): The form that was chosen at year one usually controls, because switching is expensive. Evaluate form choice at each carrier-switch decision, employer change, or specialty shift. Physicians entering private practice or partnership should re-examine the form against the practice's own exit-economics, since owners typically pay their own tail.

Late-career physicians (years 15+): If on claims-made, confirm free-tail eligibility with the current carrier now, not at retirement. Most carriers require a minimum age and a minimum number of consecutive years on the claims-made policy. A carrier switch inside the qualifying window can forfeit free tail entirely. For the full analysis, see our sibling insight on tail coverage. If on occurrence, no tail planning is needed, but verify that all historical policy years are documented and accessible.

Any physician in a cancer-diagnostic specialty: Lavern's Law's seven-year discovery cap changes the math. Occurrence, or claims-made with firm lifetime-tail commitment, is the defensible answer. Three-year or five-year term tail leaves a demonstrable gap against the statutory window. Primary care, internal medicine, OB/GYN, radiology, pathology, and general surgery all fit this profile.

For the broader policy-selection framework, see our professional liability service overview.

Policy-form decisions at the start of an attending career shape premium, tail exposure, and contract leverage for decades. Morningside reviews physician employment contracts, models claims-made vs. occurrence total-cost trajectories, and benchmarks MLMIC, EmPRO, and TDC proposals against each other. Schedule a consultation to run the numbers on a specific contract or carrier proposal.