Medicine, Law and Politics
Letting Good Deeds Go Unpunished
Both Minnesota and federal law offer protections to physicians who volunteer their services.
By Karolyn Stirewalt, J.D.
For many physicians, volunteering at clinics that serve the poor or uninsured is a way of giving back to the community. Although using your time and skills to help those who otherwise may go without care may be the right thing to do, what happens if something goes wrong? Would you, as a volunteer, be liable for your actions?
In order to encourage physicians to volunteer their time and expertise, both state and federal law guarantee them certain legal safeguards. The following is a summary of the laws that protect physicians who not only offer their services at free clinics but who also pitch in during an emergency or disaster when they’re not being paid to provide care.
Minnesota Law
Minnesota offers qualifying physician volunteers protection in the form of free professional liability insurance. The state also offers physician volunteers immunity from some forms of civil liability when working in a temporary medical facility during an emergency, or when providing care at the scene of an accident.
Physicians volunteering in Minnesota may be eligible to receive professional liability insurance free of charge through the administrative services unit of the state Board of Medical Practice (BMP). The administrative services unit is required to purchase medical liability insurance, if available, for physicians who are licensed, working for a charitable organization, volunteering their time, are registered with the state’s Volunteer Health Care Provider Program under Minnesota Statute section 214.40, and who don’t otherwise have medical liability insurance.1
Because one of the criteria for obtaining this coverage is maintaining a medical license, some retired physicians may not qualify. Retired physicians who went through the emeritus registration process with the BMP are no longer considered licensed and, thus, would need to change their status from emeritus registrant to active licensee in order to be eligible for coverage (see “Emeritus Registration and Reactivation of License” to find out how to reverse emeritus status).
Physicians who offer their services during emergencies are also protected. In the case of a national security incident or peacetime emergency in which the number of seriously ill or injured persons exceeds the capacity of emergency transport systems and hospital emergency departments in a given area, the governor may issue an emergency executive order. During such an event, temporary medical facilities may be established. Physicians who volunteer emergency care, advice, or assistance in these facilities and whose actions are consistent with emergency plans would not be held liable for any civil damages or administrative sanctions that might come as a result of their good-faith acts or omissions.2
Under Minnesota’s Good Samaritan law, volunteers who provide care at the scene of an accident or emergency are generally protected against civil liability.3 In fact, any person who arrives at the scene and finds that someone has been exposed to or has suffered grave physical harm is required to provide reasonable
assistance to the extent that he or she can without endangering anyone. If a person fails to do this, he or she may be at risk of being found guilty of a petty misdemeanor. This law applies to emergency medical service personnel and firefighters, as well as volunteer police officers, ambulance attendants, members of the ski patrol, and other first responders.
Emeritus Registration and Reactivation of License
When physicians retire, they have the option of going through the emeritus registration process with the Minnesota Board of Medical Practice. This allows a physician’s license to go dormant. Emeritus registrants do not need to keep up with CME requirements or pay annual licensing dues. However, in the event that a physician would like to practice medicine as a volunteer, he or she would need to reactivate his or her license. This is a less-rigorous process than reactivating a license that has lapsed.
Physicians who have been retired fewer than three years from the date their emeritus status took effect may change their status back to active by: 1) completing a form prepared by the board; 2) complying with the continuing medical education requirements for the time period in which their medical license was inactive under the emeritus registration; 3) retroactively paying all licensure fees that were waived while the medical license was inactive under the emeritus registration; 4) submitting references from two physicians licensed in Minnesota verifying that the registrant has the capacity to practice medicine; and 5) submitting a notarized, completed, and signed release form listing all schools attended, hospitals and clinics served, and military service.
A physician who has been retired for more than three years following the effective date of emeritus status must go through this same process. In addition, he or she would have to pass the special purpose examination (SPEX) within the year prior to reapplying for active status.1
Reference
1. MN Rule Part 5606.0500
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However, neither the Good Samaritan law nor the state’s law granting immunity to physicians who volunteer in temporary medical facilities following an emergency protects them from civil liability if they act in a willful and wanton or reckless manner when providing care or offering advice or assistance.
Federal Law
The Federal Volunteer Protection Act shields volunteers from certain forms of liability.4 To qualify, volunteers must perform services for a nonprofit organization or a government entity and may not receive any type of compensation (other than reasonable reimbursement for expenses) in excess of $500 per year.
Under this law, a volunteer may not be held liable for harm caused by his or her acts or omissions (ie, negligence), provided that the volunteer: 1) is acting within the scope of his or her responsibilities within the organization at the time of the act or omission; 2) is properly licensed, certified, or authorized by the appropriate authorities to practice in the state in which the harm occurred; 3) did not cause harm by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual; and 4) did not cause harm by operating a motor vehicle, vessel, aircraft, or other vehicle for which the state requires the operator or owner to have an operator’s license or maintain insurance.
This law explicitly limits the punitive damages that may be awarded against a volunteer. However, punitive damages may be awarded if the claimant can prove that the harm was caused by the volunteer performing an act of willful or criminal misconduct or conscious, flagrant indifference to the rights or safety of the individual (ie, gross negligence).
The law provides further limitation of liability for noneconomic losses such as pain, suffering, and loss of consortium. The court determines the percentage of responsibility of each defendant, and a volunteer may only be held liable for the amount of the loss that is in direct proportion to the percentage of the harm caused. There are exceptions to the limitation for noneconomic losses. For example, the limitations do not apply to misconduct that constitutes a crime of violence or act of international terrorism, misconduct that constitutes a hate crime or involves a sexual offense for which the defendant has been convicted, misconduct for which the defendant has been found to have violated a federal or state civil rights law, or misconduct that took place when the defendant was under the influence of alcohol or any other drug.
This law does not prevent a nonprofit or government entity from bringing civil action against its volunteers. Furthermore, it does not prevent an injured person from bringing a lawsuit against the organization for which the person volunteers.
Conclusion
Minnesota law provides some liability protections for physicians willing to volunteer their services. In addition, the federal Volunteer Protection Act limits the liability of volunteers, although it does not protect them from being sued by the nonprofit or government entity for which they work, nor does it protect the organization from being sued for the actions of its volunteers.
There are many requirements for and exceptions to the protections state and federal laws offer. For that reason, physicians who wish to volunteer their services should familiarize themselves with these laws in order to take advantage of the benefits they offer. MM
Karolyn Stirewalt is in-house legal counsel for the Minnesota Medical Association.
References
1. Minnesota Statute § 214.40
2. Minnesota Statute § 12.61 (b).
3. Minn. Stat. § 604A.01
4. 42 U.S.C. 139