Volunteers Protected: Good Samaritan Laws Helpful During Disasters

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Law Feature - December 2006   

By Erin Prather  

Physicians answered the call when hurricanes Katrina and Rita roared across the Gulf Coast states last year. More than 1,500 Texas physicians - and doctors from as far away as New York - contacted the Texas Medical Association to volunteer to care for the victims.

"We became the command post for keeping physicians up to date on what the hurricane victims' medical needs were," said Gayle Love, TMA's director of public health.

Although there was no shortage of those offering to render aid, Ms. Love says many of the physicians worried about incurring legal liability in treating evacuees who came to Texas. Luckily, the Texas Good Samaritan Law offers protection for such a situation.

Enacted to inspire citizens to take action during emergencies rather than do nothing for fear of being sued, the Good Samaritan Law limits the liability of people providing care in good faith at the scene of an emergency or in a health care facility. The catch? To qualify for the law's protection, volunteers cannot be paid for their services. 

An Affirmative Defense  

The liability provided by the Good Samaritan Law is what lawyers call "an affirmative defense," which means a physician who is sued must prove the law protects him or her. This requirement led to a 2001 case in which the Texas Third Court of Appeals in Austin ruled a physician must conclusively prove that he or she is not legally entitled to compensation.

"In other words, if there was a legal theory that would permit the physician to seek payment, then he or she could be found liable because the Good Samaritan Law would not apply," according to an article by the TMA Office of the General Counsel posted on the association's Web site. (Click  here. Although TMA attorneys cannot provide legal advice to TMA members, they can offer general legal information.)       

TMA filed a brief in the case, arguing that the appeals court ruling rendered the Good Samaritan Law useless because it placed an impossible burden of proof on the physician. The Texas Supreme Court agreed in 2003 and reversed the Third Court's decision. The same year, the legislature passed a law that clarified the statute to ensure that a court wouldn't make the same mistake again.

The Texas Good Samaritan Law limits the civil liability of volunteers unless their actions are willfully and wantonly negligent.

The federal Volunteer Protection Act of 1997 also strengthens physicians' liability protection. It shields volunteers if they render aid under a governmental entity or nonprofit agency. As with the Texas Good Samaritan Law, the volunteers cannot be paid. Also, there is no legal protection if a patient is harmed due to willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the person harmed by the volunteer.

Congress passed the law to promote the interests of social service program beneficiaries and taxpayers and to sustain the availability of programs, nonprofit organizations, and governmental entities that depend on volunteer.

TMA Assistant General Counsel Lee Spangler, JD, says physicians should verify that they are working for a charitable organization within the scope of their employment and license and obtain written consent from the patient, when feasible.  

SIDEBAR  

Getting Ready for the Next One

At press time, TMA was preparing for future disasters by readying a list of physicians willing to volunteer to treat the victims. The names will appear on a registration portal on the association's Web site, where Texas doctors can register to volunteer to treat patients in the next major disaster.

Having physicians ready and waiting for the call is one of the many lessons TMA and disaster preparedness officials learned from hurricanes Katrina and Rita.

"We just did whatever needed to be done to help the evacuees and the victims," said Donald J. Gordon, MD, a member of the TMA Council on Public Health. "We learned a lot - especially what to anticipate in the future."

Physicians interested in disaster preparation also can join the Texas Medical Rangers (TMR). The rangers, cosponsored by The University of Texas Health Science Center at San Antonio and other state-supported health science centers, are chartered by the governor. They help public health authorities respond to contagious diseases and other threats to public health, including bioterrorism. In March 2003, Gov. Rick Perry made TMR part of the Texas Military Forces under the Texas adjutant general.

To join TMR, go online to www.texasmedicalrangers.com, or call (866) 835-8936 for more information.

Additionally, the American Medical Association's National Disaster Life Support (NDLS) Foundation helps health professionals prepare for large-scale, catastrophic events, including terrorist attacks, explosions, fires, and natural disasters such as hurricanes, floods, and infectious disease outbreaks. To view and register for NDLS courses, visit the NDLS Foundation Web site at  www.bdls.com

December 2006 Texas Medicine Contents
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