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
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
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
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
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.
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