PRO BONO PUBLICO (Physician Liability for Charity Care)

THEN AND NOW

Dr. Smith was a much admired and loved emergency room physician in a small town with one stoplight, one private tax-exempt hospital (the “TE Hospital”), and one public charitable hospital serving indigent patients (the “Charitable Hospital”).  Dr. Smith has worked at the TE hospital for several years and happily enjoyed the benefits of longtime employment.  Dr. Smith also enjoyed providing volunteer services to indigent patients at the Charitable Hospital in his free time to “give back” to the community. Things changed when the Charitable Hospital suddenly closed, which caused a flood of indigent patients (with no place else to go) to the emergency room of the TE Hospital.  The TE Hospital was required to maintain an open emergency room for all patients regardless of ability to pay in exchange for its tax-exempt status.  As a result of the closure, Dr. Smith was required to contribute much more of his time to indigent care.

TRICKLE DOWN

In order to alleviate the extra burden on its already strained emergency room, the TE Hospital agreed to open, operate, and refer indigent patients to a local free clinic.  Employed physicians, such as Dr. Smith, were assigned to provide healthcare services at this hospital-operated free clinic.  As such, he treated many unfamiliar patients with conditions and stages of disease that were outside his regular scope of practice.

NO GOOD DEED GOES UNPUNISHED

No work, even if it is undertaken for the “Public Good” without charge, is exempt from standing regulations. Because charitable care does not eliminate potential for malpractice claims, Dr. Smith sought legal advice from his attorney to better understand his exposure for providing indigent healthcare services.

WEAR UNDER ARMOR

Every state, including Louisiana, offers some degree of protection for providing charitable healthcare services at free clinics. Federal law also affords protection under the Volunteer Protection Act of 1997 (the “VPA”). The VPA provides minimum protection to volunteers and preempts inconsistent state law unless the state law provides greater protection.  A physician may also be eligible for malpractice coverage under The Free Clinic Federal Tort Claims Act Medical Malpractice Program. After the Charitable Hospital closed, Dr. Smith’s decision to provide healthcare services at the free clinic operated by the TE Hospital was no longer voluntary. His coverage assignment was mandated by the TE Hospital in furtherance of its own exempt purpose and in order to reduce the strain on its emergency room. As such, his services will not be considered “pro bono” for purposes of the VPA and will have no additional protection from malpractice claims.  In order to mitigate his exposure, Dr. Smith should simply ensure that both he and the free-clinic are fully qualified and enrolled in the Louisiana Patient’s Compensation Fund.

SOMEONE HAS TO DO IT

All professionals provide some measure of pro bono services at some point in their careers.  Even though “giving back” to those in need is a worthy cause, no one should assume any limitation of liability.  If called (voluntarily or involuntarily) to render pro bono services, take reasonable care, and make sure malpractice or E & O coverage is in place. In the end, as Winston Churchill said, “We make a living by what we get.  We make a life by what we give.”

“LIFE IS AN ECHO, WHAT YOU SEND OUT COMES BACK.” 

Zig Ziglar

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