State Looks to Protect Volunteer Docs from Malpractice Suits

Cheryl Clark, April 1, 2010

Lorna Swartz, a retired child and adult psychiatrist in La Jolla, CA, wants to donate her time and care for the poor.

"There's a lot of people who are homeless, and can't afford a psychiatrist, so I could see those people," she says.

There's a free clinic at the high school that could use her 22 years of practice experience as well. But, for now, she must refuse.

California law says that if she were sued for care she provided as a volunteer, she wouldn't be protected against medical malpractice claims unless she purchased her own expanded coverage policy, at a cost of thousands of dollars. She doesn't think she should have to pay.

The Golden State is one of only seven in the country—along with Alaska, Massachusetts, Nebraska, New Mexico, New York, and Vermont—that still lack laws protecting volunteer physicians. That's a situation that both the California Medical Association and the state agency that licenses doctors, the Medical Board of California, want to change.

Like Swartz, many of the state's 125,000 licensed physicians won't volunteer out of fear of being sued, according to a report on the issue from the medical board last year.

"Despite this number, there is an inadequate supply of physicians to care for the ever-increasing California population, especially those patients that have no insurance," the report said.

Regular malpractice liability coverage—or coverage purchased by retired or semi-retired physicians—does not always extend to volunteer work or work outside the regular practice setting without paying much higher premiums.

A bill introduced by Sen. Ellen Corbett, D-San Leandro, which is backed by the CMA, would change the law, "providing medical malpractice insurance to physicians and surgeons who provide voluntary, unpaid services."

"This is one of those times where the CMA and the Medical Board are on the same page," says James Hay, a CMA official and family practitioner in Encinitas.

Of course, it isn't that California's poor are litigious, rushing to file lawsuits against providers who give them free care.

"There are actually very low rates of lawsuits; in fact, they're almost unheard of," says Hay. "The problem is the perception of the physician who is about to volunteer."

Hay says the CMA prefers what is called a "state actor" program "that's similar to what they have in Florida. But the big issue is who is going to pay for it. You don't ask the California government, and the trial lawyers will fight it because it would take away their deep pockets."

The so-called "state actor' plan," also called a "sovereign immunity" system for insuring volunteer physicians, is one of several options used by a variety of states that do provide legal protections for volunteer doctors.

"In this model, the volunteer physician becomes a government employee when he/she is providing unpaid care in either a designated facility and/or to certain categories of patients," the medical board report said.

"The state usually sets certain conditions, such as the setting where health care is delivered, or [requires] ... a formal agreement between the health professional and the state." Wisconsin and Florida use versions of this model.

Two other models also may be considered:

  • "Statutory immunity," in which the healthcare provider is immune from liability unless he/she commits gross negligence or engages in willful or wanton conduct. Illinois, Pennsylvania, Texas, Wyoming, and the District of Columbia use a version of this model.
  • "State-run professional liability," in which the state purchases professional liability insurance for volunteer physicians or reimburses providers for their premiums. Virginia offers liability coverage to healthcare practitioners, who volunteer at state-designated volunteer clinics.

The report gives a detailed description of liability protection systems in each of the 50 states and the District of Columbia. It also details whether a state offers a discounted license renewal fee for doctors who only or mostly provide care for free.

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