States approving bills granting immunity
Amend malpractice liability rules that prevent physicians from serving communities
By Carolyn Rogers
In some ways, its 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 homein 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:
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 Michigans 37th District.
"The clinic operates one night every couple of weeks, or once a monthnot 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] weve seen 34 clinics statewide, and several more in the planning stages, that would greatly benefit from this legislation. Were 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 patientsexcept for cases of willful or wanton misconductthe 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 didnt like it at first, but we came up with language everyone could agree to. We stood together in the end, and thats why it passed."
Civil liability immunity bills introduced in other states include: