Malpractice Issues for Health Care VolunteersBy Roger Boe, MD
Many of us have heard concerns and questions about the liability issue for health professionals who serve as mission volunteers. Some have hesitated to volunteer, and others have outright refused to serve, because of the risk. Some factors that have contributed to this increasing concern have been the recent rise in the number of claims brought in the US; the number of volunteers who are retired and no longer have coverage; and the difficult conditions under which volunteers often practice.
On the other hand, there is no record of any claim ever brought against an UMVIM team member or individual volunteer; and the agencies that I discussed this with, the two largest medical volunteer organizations, The Christian Medical and Dental Assn and Physicians Without Borders, as well as many other faith-based sending organizations have no record of a suit brought against them or their volunteers.
Curtis Harris, MD, JD, who is medical-legal consultant for the CMDA, offered us an opinion on this issue. He has agreed to allow us to share this opinion (whch we have divided into several paragraphs) with readers of The Knock:
“Concerning . . . malpractice insurance for foreign missions work. . . . there is a risk, of course. But . . . the US is the most litigious nation in the world, and our laws favor plaintiffs greatly, compared to the rest of the world. So any risk your physicians or nurses feel in their daily practice in the US is not the risk elsewhere. That risk depends on the nation involved, and the location within that nation.
“It would be very hard for me to advise you specifically, but in general the risk of a suit is much lower elsewhere than in the US. And the people of other countries do not think about suing, either. And there are (usually) no attorneys in those nations that understand or trained in US law enough to even know to bring a suit, and how to do it. The difference in the situation between the US and second-world nations is like night and day.
“. . . in order to be sued, a court must obtain jurisdiction. As to the physicians and nurses who do short-term missions: they would have to be physically served with papers concerning the suit. Someone would have to find where they lived or worked, and then get an officer, sheriff, or someone qualified in the individual State in the US to serve the papers. That would be expensive and hard to do.
“In other countries, contingency fees are not typically allowed, which means that the patient who thinks that he or she has been injured must "come out of pocket" to pay an attorney and all of the legal expenses to pursue the suit. I assume you are helping poor people who could not afford the several thousands of dollars (about $50,000 overall) such an action would take. Even then, a foreign court does not have jurisdiction in a civil suit concerning an individual citizen of the US to force one of the volunteers to appear in a court in a foreign country. (Large corporations, like Firestone, can be liable, of course: but that is a different issue entirely.) It would be easy to just ignore the suit, or to ask a local attorney to "quash" the subpoena.
“As an example, even within the US, let alone a foreign country: If I were sued in New York State, and I lived in Kansas, I could move to quash the subpoena for lack of jurisdiction. (This assumes that I do not have an office or business in New York.) Further, US courts recognize a principle (by law) called the "Good Samaritan" laws, which could be interpreted to protect work away from a home office, in more difficult circumstances, if the physician in the mission field was merely helping someone who had a personal physician (the permanent staff in the field?).
“What I am trying to say is that it would be unlikely that a US court would even consider granting jurisdiction in a local (US) court to a foreign suit, based on the nature of the work that was done, let alone any other issues.
“. . . as to UMF[/HCV]'s risk: If you have a permanent facility, a local government could grant someone your volunteers treated the right to sue UMF[/HCV] for damages, and even seize any assets you have on site to pay for an award. But that is a risk you have always taken, and you can best decide if you want to continue to take, and possibly insure against. This does not involve the volunteers directly, unless you (UMF[/HCV]) choose to sue the individual volunteer in the US, to indemnify your liability. I doubt you would do this, and even if you did, the chance of success is very low that any one volunteer would be held liable in any way.
“There are several other legal issues I will not discuss because they concern trial issues, but they all are in favor of the volunteer. I suggest that the worst risk your volunteers need to consider is that they might need to pay an attorney in the US $1000-$10,000 dollars (depending on the complexity of the case) to argue and quash a suit. That may be something they do not want to do, but isn't the risk worth it to help others? This is not a risk-free world, as our Savior proved. But this is not one of the issues/risks your volunteers generally need to consider.
“In summary, anything is possible in this great world of ours, but a malpractice suit against a volunteer is at best remote. I suggest that the odds are close to the odds of winning the Power Ball: someone will win, of course, but it is unlikely to be anyone you know.”
We deeply appreciate Dr Harris’ willing to share his considered opinion with us.
I should add that the AMA did have a source for temporary coverage, but this was prohibitively expensive, and I believe is no longer offered.
Seabury and Smith, who represent many malpractice carriers, state that their coverage includes incidents resulting from overseas practice, as long as the suit is brought in the US.
The process of bringing that suit in the US is extremely complicated and up front prohibitively expensive for someone from a developing country, i.e. virtually impossible.
There is, of course, no way that we as a volunteer organization could provide liability coverage, but it is an issue that needs to be raised, and I believe at this time that this is as far as we need to take the issue.
Please contact us on this with your opinions and comments.