Malpractice Consult

October 24, 2003

The legal risks of volunteering

 

Malpractice Consult

By Lee J. Johnson, JD

The legal risks of volunteering

• You owe the same duty to charity patients as to private patients.

• Work with your insurer to make sure you maintain coverage.

• Insist that colleagues have their own malpractice policies.

Q: I'm starting a nonprofit clinic at my office on Saturdays. Some other health care workers and I will volunteer our time to provide care for indigent children. I have malpractice insurance, but does the clinic also need a separate policy? Do we gain any protection under the Good Samaritan laws?

A: A Your malpractice insurance carrier should cover your activities. But you must notify the insurer about your plans before you get started. Full disclosure now will prevent any possible denial of coverage in the future. The insurer may want more information about your supervisory role and the credentials of the people you'll be working with. And you should have the carrier specifically answer your questions, based on its policy and the laws in your state.

Many doctors erroneously believe that as volunteers they have no real duty to the patients and that Good Samaritan laws will protect them from liability. But your duty and liability to patients is the same whether you're a volunteer in a clinic or the proprietor of an exclusive concierge practice. Generally, so does the standard of care you must meet. Good Samaritan laws typically lower the standard of care only when physicians render care in an emergency and outside a medical facility.

Unless you're careful, you could end up with liability for the actions of the other health care workers, too, even if they're independent contractors. In states with joint and several liability, one defendant may be held responsible for the actions of other defendants who are uninsured or under-insured. So make sure that all the health care professionals working with you at the clinic have adequate insurance, and ask for proof. If they're your employees, an endorsement to your own policy may cover them. If they're independent contractors, make that clear in any organizational agreement. Either way, written contracts should be signed by all workers and placed in their personnel files along with proof of insurance.

The legal principle of "ostensible agency" arises when a member of the public reasonably perceives that the worker is an employee of the organization. The fact that the patient comes to an office with your name on it, or even with your name on the paperwork, could influence a court to hold you accountable.

To protect yourself, I'd recommend that you place the clinic's name on signage and any paperwork given to the patient. You might want to add the following language to the initial history signed by the patient: "I understand that I am requesting treatment from the XYZ Clinic, that the office is provided by Dr. John Smith, and that I am not to be considered the private patient of Dr. Smith unless I specifically make an appointment through his private office." Volunteers who answer phones at the clinic should make clear that it's separate from your private office.

Remember, too, that volunteer workers may not have the same level of training as your usual employees. The duty to supervise them will fall to you. Even though they're not your employees, you could be held responsible for their actions if you fail to supervise properly. Establish stringent procedures so they don't practice outside their areas of training.

Since the clinic will use your office, also be sure you have comprehensive general liability insurance for any nonmedical accidents, such as a slip and fall on the premises, as well as insurance for any damage to the property.

 



Lee Johnson. Malpractice Consult: The legal risks of volunteering. Medical Economics Oct. 24, 2003;80:64.