Volunteer Immunity

As the country's need for volunteer physicians grows, medical liability exposure as well as the cost of medical liability insurance is discouraging some physicians from volunteering medical services to the indigent and uninsured. With the increase in medical malpractice premiums, some insurers are explicitly excluding coverage for charity care. Insurers are attempting to limit exposure to liability. Many physicians are reluctant to volunteer without adequate liability coverage and most non-profit organizations cannot afford to purchase malpractice insurance for volunteers. This is putting a stress on the nation's health care system.

In response to the need for physician volunteers to provide care to the indigent and uninsured, 44 states and the District of Columbia passed charitable immunity laws. These laws protect physicians when providing medical care without remuneration from legal liability due to negligence. Though the intent of these laws is to protect volunteer physicians from lawsuits, the laws themselves are narrow. Many of these state laws only provide protection to physicians when volunteering in certain settings such as free clinics and government facilities. Eleven of the state charitable immunity laws also limit their protection to physicians who provide non-surgical medical care. These laws also only protect in cases of simple negligence and physicians will be forced to incur attorney fees if they are sued.

To encourage physicians reluctant to volunteer for fear of being sued, Congress passed the Volunteer Protection Act of 1997. This law provides immunity from simple negligence to physicians acting within their scope of practice at a non-profit organization. Although this law was created to encourage volunteerism, similar to state laws, it is limited in its scope. This federal legislation applies only to volunteer care provided at not- for- profit facilities and volunteers can be sued for the conscious, flagrant indifference of the rights or safety of the individual. Physicians may be wary to rely on the protection of the VPA until its constitutionality has been tested in the federal courts.

AAOS works to support the expansion of charitable immunity laws at both the federal and state level. We believe that these laws should provide immunity for both volunteer surgical and non-surgical care. We also believe that charitable immunity laws should provide protection for physicians providing medical care without expectation of remuneration in all settings. Legislatures also need to tighten all loopholes in these laws to encourage physicians to volunteer medical services to the indigent and the uninsured.

AAOS also tracks legislation that would give physicians immunity when responding to a crisis or disaster, such as 9-11 or Hurricane Katrina.