Limiting Liability for Providing Charity Health Care

What is Charitable immunity?

How can a physician's liability be limited for providing emergency care?

How can a physician's liability be limited for providing non-emergency care?

Consent form for Charity Care

Note: Before proceeding we must inform you that we cannot provide legal advice to individual TMA members because Texas prohibits the "corporate practice of law" ( Texas Government Code Ann. §81.101 ). In addition, the State Bar of Texas has ruled that corporate-employed attorneys may not provide legal services to customers of the corporation if a corporation receives fees that are, to any extent, compensation to the corporation for the attorney's legal services to the customers. To do so is a prohibited form of "fee-splitting" ( Ethics Opinion 498, January 1995 ). The fact that TMA is a non-profit corporation does not seem to change the conclusion. However, we can provide general legal information about this topic. Because your facts may vary, you should contact your own retained counsel for true legal advice and representation.This article provides information concerning Limiting Liability for Providing Charity Health Care under Texas Law.

1 . What is charitable immunity?

 

Charitable immunity is a doctrine that reduces the liability exposure and insurance costs of charitable organizations and their employees and volunteers in order to encourage volunteer services and maximizes the resources devoted to delivering these services. [1]

2. How can a physician's liability be limited for providing emergency care?

The Good Samaritan Law limits the civil liability of persons administering emergency care in good faith at the scene of an emergency or in a health care facility.  Persons providing emergency care are immune from civil liability unless 1) their actions are wilfully and wantonly negligent, 2) they expect to be compensated for the care, 3) they regularly administer care in a hospital emergency room (unless they are at the scene of the emergency for reasons unrelated to their work as a health care provider), 4) their actions caused the emergency, or 5) they are an admitting physician or an associated treating physician of a patient. 

Therefore, physicians are generally afforded immunity from civil liability in providing uncompensated emergency care when the need arises. [2]   However, one recent appeals court decision has interpreted the statute to require a physician prove that they were not entitled to compensation under any legal theory.  This would make the affirmative defense provided by the Good Samaritan Law much more difficult to use.  TMA has filed a brief in this case in hopes of having it overturned by the Texas Supreme Court.  An update will be provided in future publications. [3]

3. How can a physician's liability be limited for providing non-emergency care?

Physician volunteers are provided with civil liability limits for providing non-emergency care for certain charitable organizations. [4]

  1. Who is covered?

This immunity applies to volunteers who provide services to charitable organizations.  A "volunteer" is a person rendering services for a charitable organization that does not receive compensation in excess of reimbursement for expenses occurred.  This includes those who serve as a director, officer, trustee, or direct service volunteer, including a volunteer health care provider. [5]   A physician may qualify as a volunteer health care provider for a charitable organization by meeting two requirements.  First, the physician must voluntarily provide health care services without compensation or expectation of compensation.  Next, the physician must be licensed to practice medicine or be retired and eligible to provide health care services. [6]

  1. What organizations qualify as "charitable organizations"?

As a general rule, charitable organizations are those that are exempt from federal income tax under Section 501(a) of the Internal Revenue Code by being listed as an exempt organization in Section 501(c)(3) or 501(c)(4).  These generally include charities, religious organizations, youth sports and recreation organizations, education organizations, and organizations that are organized and operated exclusively for the promotion of social welfare by being primarily engaged in promoting the common good and general welfare of the people in the community. [7]

  1. How can a physician qualify for immunity for providing non-emergency care?

A volunteer health care provider for a charitable organization is immune from civil liability for any act or omission resulting in death, damage, or injury to a patient if they were acting in good faith, in the scope of the volunteer's duties within the organization, the act or omission was committed in the scope of providing health care services, the services are provided within the scope of the volunteer's license, and the volunteer obtains written statement signed by the patient or the patient's legal guardian.  This statement must state the limitations on the recovery of damages from the volunteer and that the volunteer does not expect compensation for the service. [8]

  1. When may a physician be liable for providing non-emergency care?

A physician may still be liable if they are not providing the health care services as a volunteer for a charitable organization.  They may also be liable if they are working outside the scope of their duties within the organization, act in bad faith, do not obtain the required written statement, or the act or omission does not occur in the course of providing health care. [9]

[1] Tex Civ Prac & Rem Code Ann §84.002.

 

[2] Tex Civ Prac & Rem Code Ann §74.001.

 

[3] Ramirez v. McIntyre, MD , 2001 WL 1298882 (Tex.App.-Austin).

 

[4] Tex Civ Prac & Rem Code Ann §84.004.

 

[5] Tex Civ Prac & Rem Code Ann §84.003(2).

 

[6] Tex Civ Prac & Rem Code Ann §84.003(5).

 

[7] Tex Civ Prac & Rem Code Ann §84.003(1).

 

[8] Tex Civ Prac & Rem Code Ann §84.004(c).

 

[9] Tex Civ Prac & Rem Code Ann §84.004(c).

 

Revised July, 2002

Prepared by: TMA Office of the General Counsel

NOTICE: This information is provided as a commentary on legal issues and is not intended to provide advice on any specific legal matter. This information should NOT be considered legal advice and receipt of it does not create an attorney-client relationship. The Office of the General Counsel of the Texas Medical Association provides this information with the express understanding that 1) no attorney-client relationship exists, 2) neither TMA nor its attorneys are engaged in providing legal advice and 3) that the information is of a general character. Although TMA has attempted to present materials that are accurate and useful, some material may be outdated and TMA shall not be liable to anyone for any inaccuracy, error or omission, regardless of cause, or for any damages resulting therefrom. Any legal forms are only provided for the use of physicians in consultation with their attorneys. You should not rely on this information when dealing with personal legal matters; rather legal advice from retained legal counsel should be sought.


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