June 2001 Bulletin

States approving bills granting immunity

By Carolyn Rogers

In some ways, it’s easier for U.S. physicians to volunteer their services in Guatemala or Vietnam than in Minnesota or Wyoming. Sound strange? Maybe, but due to malpractice concerns, many physicians find it less complicated to volunteer overseas than at home–in their own communities.

To remedy this situation, statutory immunity for volunteer physicians is rapidly gaining the attention of state legislatures. Legislation has been introduced in numerous states to amend medical malpractice liability rules that prevent physicians from serving their own communities.

Thirty-three states and the District of Columbia have already enacted legislation to provide statutory immunity for volunteer physicians. Those states include: Alabama, Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Mississippi, Missouri, Nevada, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Virginia, West Virginia and Wisconsin.

Many of these states identify specific criteria and clear rules that must be met in order for physicians to qualify for this protection. In current civil liability immunity legislation, several common principles can be identified, including requirements that:

• physicians be licensed in the states in which they volunteer
• health professionals have no expectation of nor receive compensation for services
• services be rendered in a not-for-profit organization or agency of the state
• care must be performed without gross negligence or willful or wanton disregard (statutory immunity covers civil liability, not criminal liability). This may require a health care professional to practice only within the scope of his or her training and experience and to observe the standard of care for the state or region.
• the patient receiving the volunteer services be notified that civil liability has been waived

The Academy is in the process of creating model legislation that can be introduced in state legislatures. Model legislation should be helpful, because although common principles can be identified in most state legislation, many individual state variances still exist. For instance, some states permit any licensed health care professional to volunteer medical care services, while others permit only retired physicians to receive this protection. Some statues are very limiting in the time, place and person able to perform the volunteer services, while others are fairly liberal.

As this issue went to print, a civil immunity bill had recently passed in Mississippi, while others had been introduced, and were still in committee, in Connecticut, Michigan, Missouri, New Jersey, New York, Tennessee and West Virginia.

In Michigan, a bill which provides for limitation of medical and dental malpractice liability for certain health professionals and health facilities when providing uncompensated care has passed the Senate and is currently in the House Civil Law and Judiciary Committee.

This bill originated due to concern over the low volunteer rate at a hospital-run clinic in Michigan’s 37th District.

"The clinic operates one night every couple of weeks, or once a month–not very often," says Martin VanValkenburg, chief of staff for Michigan Sen. Walter North, who sponsored the bill. "The sentiment has been that if medical malpractice liability was reduced or eliminated, there would be a greater willingness on the part of physicians to volunteer their services. And this would not only help our clinic out–[but also] we’ve seen 34 clinics statewide, and several more in the planning stages, that would greatly benefit from this legislation. We’re hoping this legislation will provide greater access to healthcare for indigent patients, allowing them to get some important primary and preventative care."

The Mississippi legislature recently passed a bill that provides immunity from liability for any church operating a medical clinic for charitable purposes.

"Mississippi is largely rural with lots of Medicaid and poor people with health problems," says Linda McMullen, general counsel for the Mississippi State Medical Association. "We have lots of free church clinics in this state where our members volunteer. While Mississippi already has a charitable immunity statute that protects volunteer physicians from being held liable in the regular course of treating the patients–except for cases of willful or wanton misconduct–the church entity itself was not covered previously. The churches were paying large amounts for insurance premiums to cover the use of the facility for the free clinic. So this legislation just expanded that charitable immunity act to the clinics as well."

Because some churches do collect nominal fees from indigent people, a cap was placed on the number of dollars the church can collect. As long as they stay within that dollar amount, the church will be immune from civil liability as well.

"It was pretty unusual because we [MSMA] joined together with the trial lawyers," McMullen says. "They didn’t like it at first, but we came up with language everyone could agree to. We stood together in the end, and that’s why it passed."

Civil liability immunity bills introduced in other states include:

• In Connecticut, a bill was introduced that would allow pro bono medical services to be given by retired health care providers without concern for civil liability.
• In Missouri, legislation would increase immunity from liability for volunteers of non-profit organizations from simple to gross negligence.
• In Tennessee, legislation would provide publicly funded professional liability coverage for volunteer physicians.
• In West Virginia, two bills have been introduced: one that would limit physicians’ civil liability for indigent care, and another that would establish the Volunteer Health Care Provider Act.
• In New Jersey, legislation was introduced that provides qualified immunity for volunteers providing health care services to indigent persons at a shelter or health care facility.
• Three pieces of legislation introduced in New York would:

1. Grant physicians and EMT’s immunity from liability for injury to or death of persons who received voluntary medical service from such physicians and EMT’s at a not-for-profit diagnostic and treatment center.
2. Exempt certain retired physicians and retired nurses from biennial license fees and liability for civil damages in certain instances.
3. Exempt retired physicians rendering services to the indigent voluntarily and without compensation or expectation or promise of compensation at a not-for-profit medical clinic from paying biennial registration and additional fees; exempts such physicians from liability for civil damages for any act or omission resulting from the rendering of services unless the act or omission was the result of such physician’s gross negligence or willful misconduct.