Academic journal article Texas Law Review

Answering the "Call to Service": Encouraging Volunteerism by Protecting Doctors as We Protect Ourselves *

Academic journal article Texas Law Review

Answering the "Call to Service": Encouraging Volunteerism by Protecting Doctors as We Protect Ourselves *

Article excerpt

Introduction

In 2015, President Barack Obama appeared for the last time on the Daily Show with Jon Stewart to call for Americans to volunteer and to discuss, among other pressing issues of the day, the President's expansion of AmeriCorps, a federal volunteer service group of over 75,000 Americans.1 Twenty-five years earlier, President George H.W. Bush founded Points of Light to promote volunteerism in America and signed the National and Community Service Act of 1990.2 In this epoch of seemingly unrelenting political intransigence, the importance of volunteerism to American society has transcended both time and partisan politics. And with good reason.

Volunteers alone manage and operate 85% of charitable nonprofits recognized by the Internal Revenue Service.3 Without volunteers, charitable nonprofits could not achieve their missions. In 2014, the 7.97 billion hours of total volunteer labor in the United States added $197 billion of value to communities throughout the country.4 Specialist volunteerism by medical and legal practitioners especially warrants attention, as only a limited number of licensed professionals can provide those much-needed services for people who cannot afford to pay. However, volunteers worry about personal legal liability, and in both medicine and law, fear of malpractice claims can create an ominous specter, chasing off would-be volunteers.5 Fortunately, a civic-minded attorney can usually find a straightforward answer to the questions "When am I liable?" and "How do I protect myself?" For doctors, however, the only honest answer to those central questions is one typically favored only by lawyers: "It depends."

Providing volunteer medical practitioners with liability protection has become a confusing, overcomplicated, and duplicative web of federal and state law, individual entity policy, and personal malpractice insurance. By contrast, volunteer legal services providers need not navigate this baffling interplay of law and private insurance.6 With malpractice insurance as an industry standard, lawyers can provide vital volunteer services in an unencumbered system. Although the two areas differ, the provision of medical services to the indigent could be increased and improved by moving toward a similar unambiguous and predictable malpractice liability regime.

First, I will dissect the current volunteer healthcare liability regime to illustrate that the current patchwork system has created unpredictability. I will look to the current state of federal protection since the passage of the Patient Protection and Affordable Care Act, as well as at examples of different state-level protection regimes. Second, I will discuss how the legal community protects volunteers from liability through a uniform professional standard of malpractice insurance. This comparison serves to highlight the complexity and confusion of the current state of volunteer liability for healthcare and the relative simplicity of the regime for volunteer legal services liability protection. And lastly, I will argue that three factors justify a simplification of the volunteer healthcare liability regime: (1) the infrequency of actual suits against medical volunteers; (2) the worthy public policy of encouraging volunteerism; and (3) reducing confusion and fear among nonprofits, volunteers, and insurers alike. Streamlining volunteer healthcare liability to imitate the simplified, insurance-based model used to provide protection for volunteer legal services will allow governments flexibility to incentivize volunteerism among healthcare providers, while giving practitioners and organizations the predictability and protection necessary to meet the public's need.

II. Sources of Liability Protection for Volunteer Health Professionals

A. Federal Law

In 2009, President Barack Obama marked the close of the first one hundred days of his administration with a "call to service," asking citizens to commit to volunteering in their communities. …

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