Voluntary Liability

Problem

Physicians volunteer their care to the medically underserved every day, in their offices, in free clinics, in ERs and hospitals. The San Diego County Medical Society Foundation’s (SDCMSF) Project Access San Diego (PASD) is actively recruiting “Doctors with Heart” to do just that and, with the help of PASD to coordinate their care. One frequently raised concern is the professional liability that may be encountered by the provision of volunteer care.

Perception

Much of the concern is unfounded, however, since physicians with coverage by most of the liability carriers in California are already covered for the care they provide in any setting. Clinics that are designated as Federally Qualified Health Centers are covered under the Federal Tort Claims Act, as long as the care provided is within the health center’s federally approved “scope.” And our UCSD Student-Run Free Clinics protect volunteer doctors under university policies covering those physicians who all supervise students as voluntary faculty.

But retired physicians without a malpractice policy, physicians in some self-insured groups, and hospitals themselves may have a disincentive to volunteer care for fear of their liability risk.

Many states (43 out of 50) have adopted legislation to protect doctors who provide free care to the medically underserved. California has considered such legislation in the past, and SDCMSF and CMA are actively working to see that we adopt protections in our state in the near future.

History in California

California Assemblyman Alan Nakanishi, an ophthalmologist, has introduced several bills to address this issue over the past few years. One early attempt would have provided immunity from liability similar to “good Samaritan” laws, but was not adopted. AB 367 was signed into law, and it provides a waiver of the medical license fee for retired physicians who no longer earn any income from a medical practice but still wish to provide pro-bono care. AB 367 did not address the liability issue. More recently, AB 2342 was enacted asking that the Medical Board of California, together with the Health Professions Education Foundation, study the issue of providing medical malpractice insurance for physicians who provide voluntary, unpaid services to indigent patients in medically underserved or critical-need population areas of the state. AB 2342 originally was written to provide for that state-financed liability coverage but was amended to a study bill after opposition from trial attorneys. The legislation required the report to be presented to the Legislature by January 1, 2008. The report has just been released to the Legislature and will be reviewed by the Medical Board at its quarterly meeting January 29–30, 2009. It addresses what must be included in a legislative solution to this problem for California and suggests several ways to pay for the costs incurred by the state to administer it. These include increasing the biannual licensing fee for physicians, charging a fee to the entities ultimately protected, seeking grant funding such as from the California Endowment, or by funding from the state’s general fund (which is the way almost all the other states pay for their programs).

History in Other States and Federally

As noted above, almost all states have some form of legislative protection for doctors who volunteer care. Florida and Georgia, e.g., have laws that declare that a physician providing volunteer care, and who has signed up with the program, is, at that moment, an “agent” of the state and thus covered by state liability protection, not immune from, but government-defended as if an employee of the state.

Wyoming Senator Enzi introduced a bill in the last Congress to give similar federal protection and cited as rationale the Florida experience that has documented over $1 billion in charity care over its 16 years existence in return for state infrastructure costs of $900,000 a year (Modern Physician Alert 7/29/08). Needless to say, much of that charity care would have ended up state expense through ER and hospital care, hence they have found it to be cost-effective and have documented a significant ROI for the state’s investment. The Enzi bill did not pass.

Obstacles

Many things stand in the way of passing this type of legislation in California:

1. Any new costs to the state, regardless of the long-term benefit and ROI, are unthinkable during the current budget crisis. California already charges one of the highest licensing fees in the nation, and physicians will likely resist any increase to fund such a program.
2. Much confusion exists in the public’s mind and therefore also with legislators about the request for state provision of liability coverage (which still allows for recovery by harmed patients, and, incidentally, also for their lawyers) as opposed to immunity from prosecution, which would take the lawyers and courts out of the picture.
3. States vary also on the definition of what is “medically underserved,” that is who qualifies for the receipt of the care for which the physician receives state liability protection and who decides. Does a physician have the ability during an individual patient encounter to make that determination, for example? The federal government’s Health Resources and Services Administration (HRSA) defines medically underserved populations to include “groups of persons who face economic, cultural, or linguistic barriers to healthcare.” Any individual who is not eligible to participate in existing public or private healthcare programs due to program restrictions, health plan exclusions, and/or pre-existing health conditions can therefore only be served through safety-net providers.
4. Clarity is needed in defining whether state coverage applies to the individual encounter (such as a single patient seen in the office during an otherwise normal schedule of paying patients) or only to the site of care such as in existing free clinics.
5. As occurs when the state provides health insurance that might otherwise have been supplied by an employer, “crowd out” could affect this coverage as well. Liability carriers might well decide they no longer need to provide for volunteer doctors, thereby reducing their risk and allowing that coverage to be assumed by the public.
6. Any program organized to provide volunteer services, such as Project Access San Diego itself, may incur liability risk as an entity, and if the program uses a “medical director” that physician may have liability outside their usual liability coverage. We have heard from Richard Anderson, CEO of The Doctors Company, who has offered to make a discounted plan available to PASD.

(For an extensive review of the obstacles, see “Overcoming Barriers to Physician Volunteerism,” Paul A. Hattis, The University of Illinois Law Review 1/12/05)

Next Steps

Dr. Ellen Beck and I have worked with SDCMSF staff to develop a network of allies and to learn what it will take to pass Florida-like legislation in our state. We have met and stayed in touch with the UCI attorney who wrote the AB 2342 report for the Medical Board. We believe we have pro-bono legal assistance available when the time is right to introduce such legislation. During the several years we have been discussing this problem, at least one major doctor-owned liability company in California has clarified that it, like the others, does cover its insureds regardless of where they provide their care, including in clinics outside of their own practices.

CMA’s legislative staff is helping us to decide when and how we should begin the legislative process, aided we hope by the AB 2342 report’s findings and recommendations. We hope to also enlist the support of the Medical Board, which is likely to be allied with us in the desire for such legislation.

Conclusion

SDCMSF’s “Doctors with Heart” will continue to provide the care to those in need just as they always have. Our goal is to help them and to make it easier to recruit others to volunteer care to an unfortunately ever-increasing population of medically underserved. Legislation that provides state liability protection to volunteer doctors will help us achieve that goal.