Volunteer and charity care

Each year thousands of physicians and other health care professionals volunteer their time and skills in a variety of settings — from treating patients who do not have the financial means to pay for services, to taking a shift at a local health fair, to caring for patients evacuated from the coast following a hurricane.

One of the challenges of volunteering in the health care field is the fear of malpractice liability associated with providing these services. Fortunately both state and federal laws offer liability protection to volunteer health care professionals. This article will review these laws and discuss risk management considerations for physicians who volunteer their services.

STATE LAW

Texas has both a charitable immunity law and a Good Samaritan law. Good Samaritan laws protect health care professionals providing care in emergency situations. Charitable immunity laws protect health care professionals who provide nonemergency care for certain charitable organizations. (1)

In general, these laws make it more difficult for plaintiffs to win a liability claim but do not guarantee that volunteers will not be sued. "The legal immunity provisions prevent liability awards. They do not prevent lawsuits. Anyone who can afford a filing fee can file a lawsuit. The physician is then left to offer the immunity statutes as an affirmative defense." (2) (Affirmative defense means that after the lawsuit is filed, the physician must prove the law provides protection.) (3)

TEXAS GOOD SAMARITAN LAW

Under the Texas Good Samaritan law, a physician who "in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is willfully or wantonly negligent." (4) The law applies to a person who administers care using an external automated defibrillator or who administers emergency care as a volunteer first responder. (4)

Physicians providing emergency care at the scene of an emergency are immune from civil liability unless:

• their actions are willfully and wantonly negligent;
• they expect payment for the care;
• they regularly administer care in a hospital emergency department (unless they are at the scene of the emergency for reasons not related to their work);
• their actions caused the emergency; or
• the physician was at the scene soliciting business or seeking to perform a service for remuneration. (1)

It should be noted that the Texas Good Samaritan law does not apply when a physician is practicing in a hospital emergency department.

CHARITABLE IMMUNITY 

A state law known as the Charitable Immunity and Liability Act of 1987 provides physician volunteers with civil liability limits for performing nonemergency care for certain charitable organizations. (5)

Under the act, a "volunteer" is a person rendering services for a charitable organization who does not receive compensation in excess of reimbursement for expenses incurred. This includes a person serving as a director, officer, trustee, or direct service volunteer. There are 10 types of health care providers who may be "volunteer health care providers," provided that they are either licensed or retired and eligible to provide health care services under Texas law.

These include practicing or retired: physicians, physician assistants, registered nurses (including advanced practice nurses), vocational nurses, pharmacists, podiatrists, dentists, dental hygienists, and optometrists or therapeutic optometrists. (5)

According to the law, a volunteer health care provider who is serving as a direct service volunteer of a charitable organization is immune from civil liability for any act or omission resulting in death, damage, or injury to a patient if the following requirements are met:

• "The physician acted in good faith in the scope of volunteer duties within the organization;
• The act or omission was committed in the scope of providing health care services;
• The services are provided within the scope of the volunteer's license; and
• The volunteer obtains a written statement signed by the patient or the patient's legal guardian that acknowledges limitations on the recovery of damages from the volunteer and stipulates that the volunteer does not expect compensation for the service." (1) (Please see sample disclosure form.)

For a complete list of qualifying charitable organizations, please see Texas Civil Practice and Remedies Code, Chapter 84, Section 84.001-84.004.

PHYSICAL EXAMS OR MEDICAL SCREENINGS FOR SCHOOLS

Volunteer physicians providing physical exams or medical screenings to certify a patient's eligibility to participate in school-sponsored extracurricular or sporting activities are provided with some protection under the Texas Civil Practice and Remedies Code Section 91.002. (7) This law is similar to the Charitable Immunity and Liability Act in that it only protects volunteer health care professionals when:

1. they act without compensation or expectation of compensation;
2. they act in good faith and in the course and scope of their duties;
3. the act or omission is committed in the course of conducting the exam or screening;
4. the services provided are within the scope of the physician's license;
5. the patient or the patient's legal guardian has signed a written statement acknowledging that the physician's service is being provided without expectation of remuneration and that recovery of damages in connection with the exam or screening is limited. (7)

The law applies to licensed physicians, physician assistants, advanced nurse practitioners, and chiropractors. As described in the law, "school" means "any private or public school offering academic instruction in any grade level from kindergarten through grade 12." (7)

Again, the law does not apply to an act or omission that is intentional, willfully or wantonly negligent, or done with conscious indifference or reckless disregard for the safety of others. For the law to apply, the physician must carry liability coverage for any act or omission to which this chapter applies.

The limits of the policy must be at least $100,000 per person and $300,000 per occurrence of bodily injury or death and $100,000 for each single occurrence of injury to or destruction of property. (7)

FEDERAL LAW

Physician volunteers are also protected under the federal Volunteer Protection Act (VPA). (8) Passed by Congress in 1997, the VPA provides all volunteers for nonprofit organizations and government entities with protection from liability for harms caused by their acts or omissions while serving as volunteers. This federal statute pre-empts any conflicting state law, although states may enact broader protections. Four requirements must be met for the law to apply:

• the volunteer is acting within the scope of his or her responsibilities;
• the volunteer is properly licensed, certified, or authorized by the state to practice;
• the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or conscious indifference to the rights/safety of the person injured; and
• the harm was not caused while the volunteer was operating a motor vehicle or other vehicle for which a license or insurance is required. (8)

The liability limitations only apply to the volunteer (not to the organization) and "volunteer" includes individuals serving as directors, officers, trustees, or a direct service volunteer. Volunteers must not receive compensation or anything in place of compensation that is in excess of $500. (8)

Under the VPA, two types of organizations qualify as nonprofit organizations: a 501(c)(3) organization as defined by the Internal Revenue Code and exempt from tax under 501(a); and any nonprofit organized for the public benefit and operated primarily for charitable, civic, educational, religious, welfare, or health purposes. The organizations must also not practice any action which constitutes a hate crime. (8)

The VPA does not limit liability for crimes of violence; international terrorism; acts that constitute a hate crime; civil rights violations; or if the volunteer was under the influence of alcohol or any drug at the time of the misconduct. (8)

INSURANCE COVERAGE

TMLT policies do cover volunteer and charity care activities, "arising out of professional services rendered on or after the retroactive date of this policy and within the policy territory by: The Named Insured in the practice of his or her profession as a physician." "Policy territory" is defined as "Texas and the contiguous states of Oklahoma, Arkansas, Louisiana and New Mexico. However, policy territory will be expanded to include the United States of America for professional services performed in an emergency situation without expectation of remuneration." (9) For more information, please contact your underwriter.

RISK MANAGEMENT CONSIDERATIONS

• Though the federal and state laws described in this article make it more difficult for a plaintiff to win a liability suit, they do not guarantee that a physician volunteer cannot be sued. This being the case, follow the same risk management practices you follow when caring for any patient-stay within your scope of practice, refer when appropriate, thoroughly document encounters in the medical record, communicate patient instructions clearly, etc.
• In certain situations, you may not have access to the patient's medical records or be able to contact his or her previous treating physicians. You will have to rely on the patient to obtain a medical history. Because patients may provide incomplete or inaccurate information and the patient's medical history could become a contested issue in a malpractice claim, document this information in a way that makes it clear this is what the patient told you. For example, "patient reports no drug allergies" or "patient says his last cardiac work-up was normal."
• Be aware that once a physician-patient relationship has been established (such as when a physician provides ongoing care to a patient), you need to follow a process of proper documentation and adequate notice when ending the relationship to avoid allegations of patient abandonment. According to Texas Medical Jurisprudence, a patient may have a cause of action for abandonment when "without reasonable notice to the patient, a physician unilaterally discontinues treatment at a time when continued medical treatment is necessary." For more information on ending the physician-patient relationship, please see the May-June 2008 issue of the Reporter. (6)
• Specifically when volunteering or providing charity care, verify that you are working with a charitable organization, stay within your scope of employment and license, and obtain written consent from the patient. (Please see sample disclosure form.) This will increase the likelihood that you will be protected by state and federal charitable immunity laws.
• Be aware that if you are providing nonemergency care and are not working with a charitable organization, the protection afforded by the federal and state laws will likely not apply.

SOURCES

1. Texas Medical Association. Legal protections for volunteers. Tex Med. July 2008.
2. Spangler L. Are you worried about liability? Charitable and Volunteer Immunity. Texas Medical Association Office of General Counsel.
3. Texas Medical Association. Volunteers protected: Good Samaritan Laws helpful during disasters. Tex Med. December 2006.
4. Texas Civil Practice and Remedies Code. Chapter 74. Section 74.151 Liability for emergency care. Available at http://tlo2.tlc.state.tx.us/statutes/cp.toc.htm. Accessed December 8, 2008.
5. Texas Civil Practice and Remedies Code. Chapter 84. Charitable Immunity and Liability. Section 84.001-84.004. Available at http://tlo2.tlc.state.tx.us/statutes/cp.toc.htm. Accessed December 1, 2008.
6. Fulbright and Jaworski. Texas Medical Jurisprudence. 15th edition. 2004.
7. Texas Civil Practice and Remedies Code. Chapter 91. Liability of volunteer health care practitioners. Section 91.001-91.004. Available at http://tlo2.tlc.state.tx.us/statutes/cp.toc.htm. Accessed November 20, 2008.
8. U.S. Code Title 42 Chapter 139 Section 14501-14506. Available at http://www4.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00014501----000-.html. Accessed November 17, 2008.
9. Texas Medical Liability Trust. Physician's Individual Claims-Made Professional Liability Insurance Policy.

About the Author

Laura Hale Brockway is the Vice President of Marketing at TMLT. She can be reached at laura-brockway@tmlt.org.

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