Law Feature - March 2009
Tex Med . 2009;105(3):37-41.
By Crystal Conde
Since she retired in 2000, Hilda Vollero, MD, a pediatric neurologist, has volunteered to care for uninsured patients at Houston's San Jose Clinic. To help ensure the most vulnerable Texans aren't left out in the cold, once a week, she takes time to reach out to this underserved portion of the population because, she says, working at the clinic allows her to spend more time with patients and continue to do what she loves.
Dr. Vollero says physicians can decide how often they want to volunteer at the clinic and how many patients they'd like to see.
"Everybody at San Jose Clinic is happy. It's a professional setup, and the physicians are well-respected," she said. "Retired physicians should visit a charitable clinic, talk to the volunteers, and see how good it really is."
Houston is in dire need of health care for the uninsured. In Harris County alone, 1.3 million people, or one-third of the population, are without health insurance. Texas' uninsured population totals 5.6 million people, 26 percent of the state's population.
Robert Vollero, MD, a retired Houston urologist and Dr. Hilda Vollero's husband, is the clinic's volunteer medical director. After many years of practicing medicine, he says helping to recruit volunteer physicians is a rewarding postretirement endeavor.
Through his recruitment work at San Jose Clinic, Dr. Robert Vollero hears physicians' concerns about the risk of lawsuits.
In most cases, actively practicing physicians have protection through their medical liability insurance coverage. He says retired physicians have the most questions regarding liability insurance. State and federal laws help shield both practicing and retired medical professional volunteers from liability claims.
Stacie Cokinos, San Jose Clinic's executive director, says the clinic environment is refreshing for physicians who have grown weary of insurance hassles and little time to see patients.
"In this setting, the patients are very grateful for the care they receive and express a greater level of gratitude to the physician. It feels really good. Also, there's no billing or coding, no haggling with insurance companies," she said.
At San Jose Clinic, qualifying patients have no insurance and pay for care according to their income. Most visits cost $15 and include an examination, laboratory work, x-rays, and any medications prescribed. Ms. Cokinos stresses that the clinic doesn't deny patients care because they can't pay. The clinic also has an on-site pharmacy.
The clinic has about 60 physician volunteers, but Ms. Cokinos says it will need more help next year when it moves into a new, bigger facility to meet the increasing demand of the uninsured population in Houston.
As the economy worsens and unemployment rises, more Texans will find themselves without health insurance. Some will turn for medical attention to low-cost and free health clinics. These charitable clinics rely heavily on volunteer physicians to meet the increasing demand placed on an already stressed health care system.
Legal Protection for Volunteers
State and federal laws grant practicing and retired physicians some legal protection against medical liability claims when working as volunteers in nonemergency situations. While those laws make it more difficult for plaintiffs to win a claim, they do not make physicians immune from lawsuits. If a plaintiff can afford a lawsuit filing fee, he or she can sue.
The Texas Charitable Immunity and Liability Act of 1987 gives physician volunteers limited immunity from liability when providing nonemergency care for certain organizations. (A chart detailing the provisions of the act is posted on the TMA Web site.) For a list of qualifying charitable organizations, visit the Civil Practice and Remedies Code Web site .
The act defines a volunteer as a person who doesn't receive compensation in excess of expenses incurred. Practicing or retired physicians, physician assistants, registered nurses, vocational nurses, pharmacists, podiatrists, dentists, dental hygienists, and optometrists or therapeutic optometrists are covered under the act.
Health care volunteers are immune from civil liability under the law for any act or omission that results in death, damage, or injury if:
- They are acting in the scope and course of their duties;
- The services are provided within the scope of the volunteer's license; and
- The patient (or patient's parent) signs a written statement that acknowledges the volunteer is providing care without expecting to be paid and that monetary damages are limited in exchange for receiving health care for which the physician isn't paid.
The act limits monetary damages to a maximum amount of $500,000 for each person and $1,000,000 for each bodily injury or death, and $100,000 for each injury to or destruction of property. It doesn't limit a physician's liability for acts that are intentional, willfully negligent, or done with conscious indifference or reckless disregard of the safety of others.
Two main federal statutes also limit volunteer physicians' liability: the Volunteer Protection Act (VPA) and the Health Insurance Portability and Accountability Act (HIPAA).
In 1996, HIPAA amended the Federal Public Health Service Act to protect physicians who volunteer in free clinics. Free clinics must sponsor a volunteer physician by submitting an application to the government. The Health Resources and Services Administration (HRSA) decides whether to designate a volunteer physician as a U.S. public health service employee.
If a patient sues a physician designated as a volunteer, the claim is against the United States, not the physician. The law stipulates that the U.S. Department of Health and Human Services first hears claims, and appeals are heard in a federal district court without a jury and are defended by the Department of Justice. Plaintiffs may receive no punitive damages under the law.
Passed by Congress in 1997, the VPA gives liability protection to all volunteer health care professionals in nonprofit organizations and government entities for harm caused by their acts or omissions. The law applies if:
- The volunteer is acting within the scope of his or her responsibilities;
- The volunteer is properly licensed, certified, or authorized by the state to practice;
- The harm wasn't caused by willful or criminal misconduct, gross negligence, reckless misconduct, or conscious indifference to the rights or safety of the person injured; and
- The harm wasn't caused while the volunteer was operating a motor vehicle or other vehicle for which a license or insurance is required.
The VPA limits liability only for volunteers, which include individuals serving as directors, officers, trustees, or direct service volunteers. Volunteers must not receive compensation or anything in lieu of compensation that is in excess of $500.
No volunteer physician has ever been sued in Texas under the state or federal laws.
Doing What They Think Is Right
While no one can guarantee a physician won't be sued, Katherine Peake, executive director of Lone Star Association of Charitable Clinics (LSACC), says doctors who volunteer do so because they think it's the right thing to do and they receive immeasurable satisfaction from serving those most in need.
Ms. Peake says LSACC-member clinics reach out to physicians to volunteer their time and services to help meet the demand for health care.
"These are people who have nowhere else to go," she said. "My experience as a volunteer at a free clinic has shown me that the uninsured are desperate for health care and are grateful for what they're given. These aren't people who are out to make money from a lawsuit."
LSACC incorporated in 2005 and has 52 member clinics. In addition to physicians, registered nurses, medical assistants, dentists, dental hygienists, dental assistants, and pharmacists volunteer at LSACC-member clinics. In 2008, 5,612 LSACC volunteers provided care to 98,747 patients.
In a survey of charitable clinics conducted by LSACC last year, physician respondents indicated that they would not continue to volunteer at charitable clinics if immunity protections from lawsuits were removed or weakened, if the noneconomic damage cap were raised, or if emergency care protection were weakened.
This legislative session, TMA is fighting to preserve and protect the noneconomic damage cap and the higher liability threshold for emergency services won through tort reform in 2003.
Another organization, Project Access Dallas (PAD), is working to draw more physicians to volunteer services. Participating doctors decide how many uninsured patients they're able to see in their offices and can direct them to PAD's network of labs, pharmacies, and specialists. (See "Serving Those Most in Need.")
Liability Insurance Coverage for Volunteers
Under its medical liability insurance policies, the Texas Medical Liability Trust (TMLT), the largest physician insurer in Texas with a current policyholder count of 14,986, covers physicians practicing primarily in Texas. Only TMA members are eligible to purchase TMLT coverage. The policy includes coverage for volunteer services provided by practicing physicians.
If physicians want to volunteer their services in a state outside TMLT's coverage areas, the company will work with them on a case-by-case basis, says John Alexander, senior vice president in underwriting services at TMLT. Depending on the scope of services and the physician's exposure to liability, TMLT may require an additional premium, according to Lou Pantermuehl, TMLT's assistant vice president of underwriting services.
Retired physicians can apply for medical liability coverage with TMLT, subject to meeting Texas Medical Board (TMB) licensing requirements. (See "TMB Rules for Retired Volunteer Physicians.")
Mr. Alexander says difficulty arises when retired physicians wish to purchase a liability policy at low cost.
"Often what we've found is that the premium we offer even after discounts is still too high for retired physicians to afford," he said.
According to Mr. Alexander, TMLT's rates vary, depending on a physician's medical specialty and location of practice. Part-time discounts are available for physicians who work fewer than 30 hours per week.
For example, the estimated premium range after discount for a retired family physician with limits of $100,000 coverage for each claim and $300,000 coverage for all claims presented during the one-year policy period would be $3,914 to $6,850.
In 2005, the legislature enabled the Joint Underwriters Association (JUA) to make defense-only liability insurance available to volunteer retired physicians at a low-cost premium of $250. Retired physicians must also meet TMB licensing requirements to purchase the JUA policy.
"We know from the physicians we do business with that there has been an increase in the number of patients who get their primary health care in the emergency room. We know there's a dire need for health care for the uninsured. We support the efforts of physicians who have the ability to deliver care in a volunteer capacity," Mr. Alexander said.
Liability insurance policies vary from company to company. Physicians not insured by TMLT should consult their insurer to inquire about their coverage for volunteer service.
San Jose Clinic is able to offer a low-cost liability insurance policy to its retired physician volunteers for a premium of about $200 a year. Through its association with Christus Health, San Jose Clinic offers Preferred Professional Insurance Company (PPIC) policies. PPIC works with its Catholic-sponsored health care entities to offer liability insurance and risk management services.
TAP-IN, a program conceived by The American Health Initiative in 2004 to recruit retired and near-retired health care professionals to volunteer roles in clinics serving the uninsured, entered the Houston market last year. TAP-IN helps free clinics become certified under HIPAA.
Mike Darrow, chief program officer of TAP-IN, says he recognizes that in addition to liability concerns, financial barriers may prohibit retired physicians from volunteering with charitable clinics. He says part of TAP-IN's long-term strategy is to examine ways to provide continuing medical education hours at low or no cost to retired physicians.
"We want to help the uninsured, but we're also providing health care professionals the opportunity to find purpose after retirement," he said. "This is a way for doctors to get back to practicing medicine the way they thought it would be when they got out of medical school years ago."
Crystal Conde can be reached by telephone at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by email at Crystal Conde .
TMB Rules for Retired Volunteer Physicians
The Texas Medical Board (TMB) exempts retired physicians whose only practice is voluntary charity care from paying a registration fee. State law says that to obtain the exemption, a physician must meet the following requirements:
- The physician's practice of medicine does not include providing medical services for either direct or indirect compensation that has monetary value of any kind;
- The physician's practice is limited to voluntary charity care for which he or she receives no direct or indirect compensation of any kind for medical services rendered;
- The physician's practice does not include providing medical services to his or her family; and
- The physician's practice does not include self-prescribing controlled substances or dangerous drugs.
A physician who obtains an exemption from the registration fee must obtain and report only 10 hours of informal continuing medical education instead of the usual 12 hours.
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Serving Those Most in Need
Project Access Dallas (PAD) directs qualified uninsured patients to participating volunteer physicians in the Dallas area. The Dallas County Medical Society, along with community partners, created PAD in 2002, and it has grown from 262 physician volunteers to more than 750.
Despite its large network of health care professionals, as the number of uninsured patients grows, the program needs more volunteers in all medical specialties, according to Jim Walton, DO, PAD medical director and vice president of health equity and chief equity officer for Baylor Health Care System.
To address physicians' concerns regarding liability, PAD worked with a law firm to draft a letter informing participating volunteers of their protections under the Texas Charitable Immunity and Liability Act of 1987. Dr. Walton says the letter is sent to physicians who request the information. While he isn't certain the legal information persuades physicians to volunteer, he says he thinks it helps alleviate uncertainties about the law.
Dr. Walton makes house calls in low-income communities as part of his PAD volunteerism.
"I view the liability risk with the perspective that there is too much to gain from volunteering that physicians shouldn't avoid it out of fear of being sued," he said. "Texas physicians have been blessed with so much, and giving back to our community is a powerful way of saying thank you. There is so much personal reward in giving something back when there is no one forcing you to do it that the fear of being sued pales in comparison."
Each participating volunteer physician is free to determine how many patients he or she is willing to treat annually.
Medical services covered under PAD include primary episodic and preventive health care services; elective hospitalization; diagnostic tests, lab work, and x-rays; limited pharmacy benefits through participating Caremark/CVS pharmacies; access to community care coordination and health education; and chronic disease management.
In 2005, The Institute for Faith Health Research-Dallas, a subsidiary of Central Dallas Ministries, examined PAD's financial impact. The report noted that PAD patients visited the emergency department 61 percent less and spent 75 percent fewer days in the hospital after enrollment.
The report found that annual direct and indirect emergency department costs of treating the uninsured for the 2005 fiscal year were reduced by $553,375. Additionally, the reduction in PAD patient hospitalization saved $890,897 in annual direct and indirect hospitalization costs.
The Project Access Resource Center on the TMA Web site has helpful background information and resources, as well as a directory of Project Access programs in the United States.
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