Effective July 1st there is good news for missions located in Indiana. That is the day when a new law will become effective as a result of Governor Mike Pence’s signature. The new law provides immunity to licensed medical professionals who volunteer their services at no cost to taxpayers or patients. It applies to physician assistants, advanced nurses, podiatrists and optometrists, allowing them to provide services without fear of liability. Does this sound too good to be true?
I think any “Good Samaritan” exemptions from liability are great, and it appeals to my sense of justice, since, after all, shouldn’t those with good intentions be held exempt from their unintentional negligence? Before you go and start a clinic, or offer free optical services to your guests, let me offer a few considerations. First of all, remember, that regardless of any state or federal liability exemptions, the right still exists for an [allegedly] aggrieved person to sue anyone under almost any circumstances. Even if there is not a shred of evidence or compensable damages, we have the right, as Americans, to access the courts and bring an action against another person and/or organization. Therefore, although an exemption may provide you victory in court, you still need to defend yourself. This costs money and will likely involve hiring an attorney to take your mission through the labyrinth of legal replies and pleading. As such, do not go and cancel your professional liability insurance until you consider the cost-benefit value.
Secondly, even if the “Good Samaritan” is held exempt, that does not mean the mission will be held exempt. If the guest believes they have been harmed by the volunteer professional they met at your mission, and this new exemption clears the professional of wrongdoing, I suspect that the mission will still be the focus of potential damages. Mercifully, many liability policies provide vicarious medical malpractice coverage for missions whose only duplicity in the action was that of providing a place for the medical services on mission property.
Lastly, this exemption, and others I have seen like this in other states, only applies to volunteer medical personnel and not staff positions. As such, when your volunteer retires from his/her respective hospital, they may lose whatever medical malpractice insurance they once carried.
My counsel is that the mission contract with the volunteer and requires proof of professional malpractice insurance, naming the mission as an additional insured. The new Indiana law is great, just not great enough to ignore legal reality.