Can Volunteer Physicians Be Sued for Medical Malpractice?

The MICA Risk Team frequently receives calls from physicians planning to donate their time and services. These calls range from physicians planning to hold a free health fair to physicians volunteering their time to help with their child’s sports team. Physicians are often surprised to learn that although most states have Good Samaritan laws and volunteer immunity laws, these laws might not provide any liability protection to physicians in these situations.  

In this article, MICA discusses three calls to the Risk Team’s risk consultation line involving physicians donating their time and services. We analyze whether three states’ Good Samaritan and volunteer immunity laws are likely to cover these common scenarios. 

Volunteer Physicians in Arizona 

The MICA Risk Team received a call from a physician in rural Arizona who planned to organize and host a free event to screen community members for hypertension. The physician planned to conduct the screening event at a local church. 

Arizona’s Good Samaritan Law Likely Does Not Protect a Physician Hosting a Free Screening Event 

Like most states, Arizona’s Good Samaritan law is intended to protect people who help someone during an ongoing emergency. Arizona’s Good Samaritan Law states that a health care provider “who renders emergency care at a public gathering or at the scene of an emergency occurrence” without compensation and in good faith is not liable for damages resulting from the emergency care unless they acted with gross negligence. Courts determine on a case-by-case basis whether someone acted with gross negligence, but gross negligence usually involves a reckless disregard for others’ safety. 

A Planned Screening Event is Not an Emergency. 

“Emergency” is not defined in Arizona’s Good Samaritan Law. However, an Arizona Supreme Court case describes the purpose of the law, stating that the law allows an individual to help someone in a crisis without being penalized for a bad outcome. A court would not likely consider a planned screening event a crisis or an emergency. As a result, Arizona’s Good Samaritan law likely does not protect a physician hosting a free screening event. 

Arizona’s Volunteer Immunity Law Might Protect a Physician Hosting a Free Screening Event 

Physicians in Arizona might be aware of an Arizona law that provides immunity for health professionals who provide free medical care in certain situations. The law states that a health professional who provides medical care within the scope of their license at a nonprofit clinic without compensation is not liable in a medical malpractice action, unless the health professional acted with gross negligence.  

The Screening Event Might Be Considered a Nonprofit Clinic. 

Under this law, a “nonprofit clinic” includes “a clinic, an office, a homeless or other shelter, a health or screening fair or any other setting where treatment, care or screening is provided at no cost to the patient.”  Based on this definition, the free screening event held by the Arizona physician might be considered a “nonprofit clinic” under Arizona’s volunteer immunity law. If the free screening event is considered a “nonprofit clinic”, then this law might provide the physician with immunity from liability in a medical malpractice action. Arizona courts have not yet interpreted the definition of “nonprofit clinic” in this law, however, so whether a free screening event is included remains uncertain. 

The Physician Provides Free, Prudent Care Within the Scope of His License. 

This Arizona law only protects physicians who provide care without compensation. The physician confirmed that he would not receive any compensation or remuneration from the planned screening event. The physician also confirmed that he planned to provide reasonable, prudent care at the screening event, because this law does not protect physicians who provide grossly negligent treatment. Last, this law also requires that physicians provide care within the scope of their license. To that end, the physician confirmed that screening patients for hypertension is within the scope of his license. 

Volunteer Health Professionals at Federally Funded Clinics Might be Protected by the FTCA Free Clinic Program 

It is worth noting that if this physician was volunteering in a federally funded free clinic, then the Federal Tort Claims Act (FTCA) Free Clinic Program might provide the physician some protection during the screening event. Through the FTCA Free Clinic Program, health care professionals who volunteer at free clinics can receive medical malpractice liability coverage.  

To remain eligible, health care professionals cannot receive any compensation for the health services provided, the services must be provided at the free clinic or at an offsite event sponsored by the free clinic, and the professional must be currently licensed or certified. The FTCA Free Clinic Program also includes additional requirements for the free clinic sponsoring the volunteer health professional, plus additional program requirements. Health care professionals and practices interested in learning more about the FTCA Free Clinic Program can visit the Health Resources & Services Administration’s website regarding the FTCA. 

Volunteer Physicians in Utah 

A Utah physician planned to volunteer to treat injuries at his child’s recreational league soccer team games. The physician asked if Utah’s Good Samaritan Law would protect him. The risk management consultant explained that in addition to Utah’s Good Samaritan Law, there are several other Utah laws to consider. 

Utah’s Good Samaritan Law Might Protect a Physician Who Volunteers to Treat Injuries at His Child’s Recreational League Soccer Games 

Utah’s Good Samaritan Law applies to individuals (including physicians and other health care professionals) in Utah who provide free emergency care in good faith at or near the scene of, or during, an emergency in Utah. The Law does not apply to someone who caused the emergency or provided grossly negligent (reckless or intentionally harmful) care. The physician said that he would not be paid, did not want to be paid, and intended to provide good reasonable care. 

The Physician Provides Emergency Care. 

The Utah legislature enacted the Good Samaritan Law to encourage physicians, other health care professionals, and lay people to help during emergencies. The law defines “emergency” as an unexpected occurrence involving injury, threat of injury, or illness to a person or the public, including motor vehicle accidents, disasters, actual or threatened discharges, removal or disposal of hazardous materials, and other accidents of a similar nature. Although a children’s soccer game is not in itself an emergency, an emergency could occur during the game.  

The Physician Provides Care in Good Faith. 

This Utah law protects an individual’s good faith efforts to provide medical care. The law is not intended to protect individuals who intentionally, knowingly, illegally, willfully, or wantonly cause an injury. The physician confirmed that he intends to provide reasonable and prudent care. 

The Care Occurs in Utah. 

This is a Utah law that applies to individuals providing emergency care in Utah. The physician agreed to work with his attorney to determine whether he must be licensed in any other states he and the team travel to, and he would confirm what those states’ laws say about volunteers and liability. 

Utah’s Law on Liability Protection for Volunteers Might Protect a Physician Who Volunteers to Treat Injuries at His Child’s Recreational League Soccer Game 

In addition to its Good Samaritan Law, Utah’s law on liability protection for volunteers might also provide some protection. This Utah law states that volunteers for a nonprofit organization incur no legal liability for acts and omissions while volunteering. The risk consultant pointed out the key requirements in this law: the physician must be a “volunteer,” the sponsoring organization must be “nonprofit,” the physician must provide care “in good faith,” and the care must occur in Utah.  

The Physician Meets the Definition of Volunteer. 

This Utah law defines a volunteer as an individual acting in good faith who performs services for a nonprofit organization without receiving anything of value. Under this law, “volunteer” means that the individual has no legal duty to provide care, and the decision to provide care is a personal decision.  

The risk consultant asked the physician if he signed a contract with the soccer league to provide care and whether his employer, his medical group, required him to provide care at their games. The physician explained that the league had not asked him to treat injured players, he had not signed a contract with the league, and treating children at the game was outside his responsibilities as an employee of his medical group. The physician agreed that the soccer league would not pay him, and he would receive nothing of value. 

The risk consultant also asked the physician whether the league provided anything in writing designating him as a volunteer. The physician said that he planned to attend games and treat players as needed, but he had not talked with the league about providing medical care on the league’s behalf. The risk consultant recommended that the physician establish a relationship with the league before volunteering, because the law speaks to volunteers with an established relationship with a charitable organization.  

The Organization is a Nonprofit Organization. 

Some recreational sports leagues are nonprofit organizations if they operate for charitable purposes and have obtained tax-exempt status under the federal Internal Revenue Code sections 501(a) and 501(c)(3). The physician planned to determine the league’s nonprofit status, including obtaining from the league any official documentation. 

The Physician Provides Care in Good Faith. 

This law protects volunteers for nonprofit organizations who act in good faith and reasonably believe they are acting within the scope of their official functions and duties with the nonprofit organization. Again, the law speaks to volunteers with an established relationship with the charitable organization. Additionally, the law does not protect volunteers who intentionally, knowingly, illegally, willfully, or wantonly cause an injury. The physician confirmed that he intended to provide reasonable and prudent care. 

The Care Occurs in Utah. 

This law only applies to volunteers providing medical care or professional services in Utah. The risk consultant advised the physician that if he intended to travel with the team and provide volunteer medical care in other states, he should work with his attorney to confirm whether he needs a medical license in those states and to understand those states’ laws regarding liability of volunteers. The risk consultant also told the physician that he should talk with his broker about whether his insurance policy would cover volunteer medical care provided in other states and outside the United States. 

Utah’s “Health Care Providers Immunity from Liability Act” Might Protect a Physician Who Volunteers to Treat Injuries at His Child’s Recreational League Soccer Game 

The Health Care Providers Immunity from Liability Act applies to physicians, physician assistants, advanced practice nurses, and certain other health care professionals under the following conditions: 

• • emergency care is provided at the scene of an emergency without compensation or remuneration,
    
    
  • the physician or other health care professional has no legal duty to provide care at the scene of the emergency, and
    
    
  • the physician or other health care professional acts in good faith while providing the care. 

The Act also applies to activated members of a medical reserve corps and health care professionals responding to a national, state, or local emergency; a public health emergency; or a request or declaration by the President of the United States or other federal official. 

The Physician Provides Medical Care in an Emergency. 

Under the Act, an “emergency” is unexpected and involves injury, the threat of injury, or illness due to a natural disaster, bioterrorism, an act of terrorism, a pandemic, or another event of similar nature. A sprained ankle or torn shoulder ligament occurring during a children’s soccer game may not meet the definition of “emergency,” but the Act might apply to injuries sustained by spectators if the bleachers collapsed or if lightning struck the bleachers or a player on the field.  

The Physician Provides Gratuitous Medical Care. 

This law applies to gratuitous care. If the physician receives payment, goods, or services in exchange for the care, then the Act does not apply. Payment includes reimbursement by Medicare or a Medicaid program or plan. 

The Physician Provides Care in Good Faith. 

In line with Utah’s other volunteer laws, the Act is not intended to protect health care professionals who intentionally, knowingly, illegally, willfully, or wantonly cause an injury.  

The Physician Does Not Have a Duty to Provide Care in the Emergency. 

The risk consultant confirmed that the physician did not sign a contract with the league to provide medical care, and the physician’s employer does not require him to provide care at the soccer games or any other emergency scene. The consultant explained that the Act only applies if the physician has no legal duty to provide care.  

The Physician Provides Free Care in a Designated Charitable Organization. 

The risk consultant pointed out that the Act also applies to uncompensated charity care in a clinic, hospital, church, or other organization whose primary purpose is to sponsor, promote, or organize uncompensated health care services for people who are unable to pay for health care services. The risk consultant stated that a youth soccer league likely does not exist to provide free medical care to individuals unable to pay, and she doubted that this part of the Act would apply to the physician’s proposed volunteer service at his son’s soccer games. The risk consultant encouraged the physician to call back if he decides to volunteer in a free clinic so the consultant could discuss the requirements for this portion of the Act to apply.  

Volunteer Health Professionals at Federally Funded Clinics Might be Protected by the FTCA Free Clinic Program 

The FTCA Free Clinic Program might provide some protection if the physician was volunteering in a federally funded free clinic. This law and its protections are covered in the FTCA Free Clinic Program subsection of the Arizona section of this article. 

Volunteer Physicians in Montana 

A Montana broker talked with the MICA underwriting department about insurance coverage for a retired physician who now wanted to work in a free clinic. Thinking that Montana law may differ from some other states’ laws, the underwriter added a risk management consultant to the call. 

Montana’s Law on Liability Protection for Volunteers Who Do Not Have MPL Insurance Might Protect a Volunteer Physician Providing Free Care  

The risk management consultant explained that Montana’s legislators specifically tried to protect volunteer physicians, advanced practice registered nurses, and dental hygienists who are retired or are not actively practicing medicine or dentistry, do not have medical professional liability (MPL) insurance, and now want to provide free care. The law applies when the following conditions are present: 

• • A physician, advanced practice registered nurse, or dental hygienist;
     
  • Voluntarily provides care
    • Within the scope of their license,
      
    • That is not grossly negligent or willfully or wantonly provided, and
      
    • That is without compensation;
  • To a patient
    • In a clinic (organized for the delivery of health care without compensation or that is operated as a federally funded health center),
    • Referred by a clinic (organized for the delivery of health care without compensation or that is operated as a federally funded health center), or
    • In a community-based program for uninsured patients (local program in which care is provided without compensation to individuals who have been referred through that community-based program and in which the medical practitioner or dental hygienist has entered into a written agreement to provide the service);
  • Where the patient is given notice that the physician, advanced practice registered nurse, or dental hygienist cannot be held legally liable for ordinary negligence if the medical practitioner or dental hygienist does not have malpractice insurance because the practitioner
    • Is retired or otherwise not engaged in active practice, or
    • Has malpractice insurance coverage that has a rider or exclusion that excludes coverage for care provided under this section.

The risk management consultant said the retired physician would not be able to take advantage of this law’s protections if the physician bought MPL insurance and recommended that the physician and her business or health care attorney go over the pros and cons of 1) not relying on the law and buying MPL insurance for volunteer work, and 2) relying on the protections of this Montana law and not buying MPL insurance.  

There is no published case law involving the application of this law to allegations of medical professional negligence, which may indicate the strength of this law in preventing related MPL lawsuits. Most physicians who are retired or not actively practicing medicine do not want to bear the cost of buying another MPL insurance policy. 

Volunteer Health Professionals at Federally Funded Clinics Might be Protected by the FTCA Free Clinic Program 

The FTCA Free Clinic Program and its protections are covered in the FTCA Free Clinic Program subsection of the Arizona section of this article. 

Recipients of Free Care May Still Sue  

It is important to remember that these laws do not prevent an individual who received emergency or free care from filing a lawsuit alleging professional medical negligence. Instead, these laws say the physicians and other health care professionals who provide emergency or free care that meets all the conditions in the laws are not liable for damages resulting from their care. 

Medical Professional Liability Insurance 

Not all medical professional liability insurance policies follow physicians when they volunteer or otherwise work outside of their practice location or outside their regular duties and responsibilities for their employer. Physicians considering volunteer work should check with their broker or their Underwriting customer service representative to see if their insurance policies will apply to volunteer work.  

State	Good Samaritan Law for Health Care Professionals	When Good Samaritan Law Generally Applies	Does Good Samaritan Law Apply to Most Volunteer Situations?	Volunteer Immunity Law	When Volunteer Immunity Law Generally Applies
AZ	A.R.S. § 32-1471: A licensed or certified health care provider who gratuitously renders emergency care at the scene of an emergency is not liable for damages absent gross negligence.	At the scene of an emergency	No	A.R.S. § 12-571: A health professional who provides medical care within the scope of their license at a nonprofit clinic where no compensation is received is not liable in a medical malpractice action unless grossly negligent.	When care is provided at no cost to the patient
CO	C.R.S. § 13-21-108: A licensed physician who renders emergency care without compensation at the place of an emergency is not liable for damages absent gross negligence or willful misconduct.	At the scene of an emergency	No	C.R.S. § 13-21-115.5: a volunteer performing services for a nonprofit organization or corporation, a government entity, or a hospital without compensation is not liable for damages absent gross negligence or willful misconduct.	When volunteering for a nonprofit, government, or hospital
MT	M.C.A. § 27-1-714: A licensed physician who renders emergency care without compensation at the scene of an emergency is not liable for damages absent gross negligence or willful misconduct.	At the scene of an emergency	No	M.C.A. § 27-1-736: A medical practitioner who renders care within the scope of their license without compensation to a patient of a clinic or program to provide access for uninsured persons is not liable for damages absent gross negligence or willful misconduct.	When providing free care for uninsured persons
NV	N.R.S. § 41.505: A licensed health care provider who renders gratuitous emergency care in an emergency is not liable for damages absent gross negligence.   (See also N.R.S. § 41.506 regarding gratuitous emergency obstetric care.)	During an emergency not occurring in a licensed medical facility or with a preexisting patient	No	N.R.S. § 41.485: Volunteers of charitable organizations are not liable for damages for services performed without compensation if not supervisory and not performed as an officer, director, or trustee of the organization, absent willful misconduct.    (See also N.R.S. § 415A.270 regarding volunteer health practitioners during a state of emergency.)	When volunteering for a charitable organization
UT	U.C.A. § 58-13-2: A licensed health care professional under no duty to respond who renders gratuitous and good faith emergency care at the scene of an emergency is not liable for civil damages.	At the scene of an emergency	No	U.C.A. § 78B-4-102: Volunteers for nonprofit organizations are not liable for damages for services performed for the nonprofit if the volunteer acted in good faith, believed the action was within the scope of their official duties with the nonprofit, and absent willful misconduct.	When volunteering for a nonprofit organization