Do I Need Malpractice Insurance to Volunteer in the Medical Reserve Corps?

Carolyn Buppert, NP, JD

Disclosures

December 06, 2006

Question

I'm an RN with an administrative position and I do not carry separate malpractice insurance. Recently, I volunteered with the Medical Reserve Corps, a program that calls upon volunteer healthcare professionals during national or local emergencies or natural disasters (eg, hurricanes, floods, flu pandemic).

Am I protected from lawsuits as an unpaid volunteer in disaster situations? Am I covered under the umbrella of the Public Health Department, or should I purchase separate malpractice insurance to ensure coverage should I be asked to serve during an actual disaster?

Response From the Expert

Carolyn Buppert, NP, JD 
Attorney, Private Practice, Annapolis, Maryland

You may or may not be covered under your city's insurance policy or protected by law. It is wise to check into this before a disaster occurs, so you can make sure you are protected adequately or, if not, decline to participate.

Medical Reserve Corps is a local branch of a national network of volunteers. Some state legislatures have addressed the liability of Medical Reserve Corps volunteers and some have not. A federal law, the Volunteer Protection Act of 1997 (VPA), says that unless a state expressly rejects the protection offered by the VPA, volunteers of nonprofit or governmental entities are protected from liability for "harm caused by an act or omission of the volunteer on behalf of the organization or entity if: (1) the volunteer was acting within the scope of the volunteer's responsibilities; (2) if appropriate or required, the volunteer was properly licensed, certified, or authorized by the appropriate authorities for the activities or practice in the State in which the harm occurred; (3) the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the [harmed] individual; and (4) the harm was not caused by the volunteer operating a motor vehicle, vessel, aircraft, or other vehicle."[1]

A volunteer is defined by the VPA as anyone who performs services (including officers, directors, trustees, and direct service volunteers) for a nonprofit organization or governmental entity, and either receives no compensation (although reasonable reimbursement for expenses is allowed) or does not receive anything of value in lieu of compensation in excess of $500 per year.[1]

However, the VPA contains some inconsistencies. The law states that "no volunteer shall be liable for harm" under the conditions listed above.[1] So, one assumes at first glance that there will be no liability for volunteers. The law then addresses specific types of damages; ie, it forbids the awarding of punitive damages (unless the claimant establishes by clear and convincing evidence that the harm was caused by an action of the volunteer that constitutes willful or criminal misconduct or a conscious flagrant indifference to the rights and safety of the individual harmed) and limits noneconomic damages to the amount proportionate to the volunteer's contribution to the patient's injury. Noneconomic damages include physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of consortium, and injury to reputation, among other things. So, the volunteer is not completely protected after all.

The VPA overrides (preempts) state law that is inconsistent with the VPA, unless the state law offers greater protections. However, there are exceptions; ie, certain state laws that limit the protection of clinicians are exempt from preemption. And, a state may decide to reject the VPA for its citizens.

Finally, the VPA does not prohibit a party from suing a clinician. It provides a defense. So, if a clinician is sued, he or she will need to get an attorney and mount a defense.

Some states have Good Samaritan laws that protect clinicians who respond in emergencies and who have no obligation to assist victims. For example, New Jersey law states that volunteers acting in good faith carrying out, complying with, or attempting to comply with any order, rule, or regulation promulgated pursuant to a declared emergency, or performing any authorized service in connection therewith, shall not be liable for any injury or death to persons or damage to property as a result of any such activity. State laws addressing Good Samaritans vary, and you will need to analyze whether your state's law applies to your situation.

The organizers of the Medical Reserve Corps should advise you of your protections, including citations to the relevant law or insurance documents, or lack thereof. However, if the organizers can't provide you with documentation that assures you that you are either covered by insurance or protected from liability under state or federal law, then your choices are to purchase your own insurance or decline to participate.

As you consider whether to purchase your own insurance policy, read the fine print in the policy to determine whether the policy excludes disasters or emergencies of the type contemplated by the Medical Reserve Corps.

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