A Little Charity Volunteerism and a Little Malpractice Protection
In order to encourage volunteerism in the United States so that federal, state and community charity services can continue their important functions in our society, on June 18, 1997 President Clinton signed into law the “Volunteer Protection Act”. This Act is “to provide certain protections to volunteers, nonprofit organizations, and governmental entities in lawsuits based on the activities of volunteers.” The protection is described as
“no volunteer of a nonprofit organization or governmental entity shall be liable for harm caused by an act or omission of the volunteer on behalf of the organization or entity
if the volunteer was acting within the scope of the volunteer's responsibilities in the nonprofit organization or governmental entity at the time of the act or omission;
if appropriate or required, the volunteer was properly licensed, certified, or authorized by the appropriate authorities for the activities or practice in the State in which the harm occurred, where the activities were or practice was undertaken within the scope of the volunteer's responsibilities in the nonprofit organization or governmental entity;
the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer.” Exceptions are detailed in the law.
In terms of protection of physicians who volunteer to work in charity, free medical clinics, 43 states and the District of Columbia have various charity immunity legislation and 12 of the states specifically refer to retired physicians in their law. 24 states have raised the negligence standard. Alaska, California, Massachusetts, Nebraska, New Mexico, New York and Vermont have no laws, hence only the federal law would apply.
What does this all mean? It means that malpractice suits against doctors who volunteer to care for patients who are cared for in charity clinics will be limited to apply in many states only to those physicians whose acts represent gross negligence or are criminal acts. It means it will be more difficult or impossible for patients to win lawsuits against charity clinics or their physician volunteers.
As a volunteer unpaid physician, myself. participating in a local free clinic whose patients have no insurance or money to pay for healthcare, I wonder if my professional standards, responsibilities and risks should be less than a doctor who gets paid outside of charity care? I see no ethical explanation of why it should be different but I would be interested in reading what my visitors think about this subject. Is the argument for state and federal government to support volunteerism to charity a good enough rationale for these laws? If malpractice law suits are currently excessive, frivolous and at times unfair shouldn’t the goal be to change the regulations in general regarding how tort claims are filed and ajudicated but not to simply excuse the doctors who volunteer. ..Maurice
posted by Maurice Bernstein, M.D. @ 9:34:00 PM
5 comments
5 Comments:
Hi Maurice - I don't know what individual state statutes say on the issue, but with respect just to the federal law you reference, protetction from liability is limited to cases where "the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer.” My question is, on what other grounds would a physician, volunteer or not, be liable for harm?
Bob, how about the physician volunteer bringing about an accident harming the patient that was based on a common and potential defect, irregularity or malfunction that was waiting to happen in most any clinic? Don't you think such a happening could easily be the basis for a patient to start a malpractice suit? Well, if brought to court, though I am no lawyer, I would think that at the very most the accident would be simple negligence (simply overlooking the possibility of potential harm and not taking steps to prevent it) which is certainly not in the category of "willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer.” Therefore the physician volunteer could be protected from adverse judgment in this accident by the federal law. What do you think? ..Maurice.
Maurice - I'd guess that what happens in the scenario you describe depends on how we distinguish between "simple negligence" and "gross negligence." Not being a lawyerly type, I don't know where the line is. I suppose, though, that I'd look for a way to frame the law to hold one accountable for harms resulting from negligence, regardless of whether it was simple or gross. The degree of negligence is no doubt relevant to one's degree of liability, but even a little negligence warrants holding someone a little liable.
As I said, though, I'm not a lwyerly type. So there might well be compelling arguments against relying on considerations of "proportionality" in medical liability cases.
Bob, I agree that the where the line between "negligence" and "gross negligence" is drawn is unclear, however I suppose when one is interpreting the meaning or significance of a term one should look at the context within the law in which it is written. In this case, I think one can get a pretty good feeling of what magnitude of wrong "gross negligence" is thought to represent since it is imbedded within a statement naming other criteria "willful or criminal conduct, reckless misconduct or a conscious flagrant indifference to the rights and safety of the individual..." Surely simply "negligence" or as "simple negligence" would seem out of place amongst the other wrongs. Where are my visitors who are trained in semantics to help us resolve these meanings? ..Maurice.
I happen to believe that doctors who treat patients under charitable terms should be allowed protection from simple negligence claims. Both the patient, who is enjoying a service not fully paid for (or not paid for at all possibly) and the society benefit from the willingness of qualified persons who will charitably donate their time and skill. It is not unreasonable for those receiving these benefits to in exchange offer relief from liability as an in-kind exchange, even if its value is debatable (although the value could be nominally assessed at the value of occurrence liability coverage at prevailing limits in the area.) So that there would be no confusion among the parties, a written advice to patients should be part of accepting any new patient and should be made clear that becoming a patient was conditional on accepting those terms.
Your ethical responsibility to practice good medicine, whatever your fee, should be separate and apart from the liability you incur in the particular circumstances where you practice. There is nothing ethically questionable about giving volunteers a break. (And I think it is equally defensible to give doctors who are compelled to see non-paying patients in emergency room settings the same break, for the same reasons.)
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