Many states have enacted charitable immunity laws protecting medical volunteers from liability from negligence claims when providing uncompensated care to indigent people. In general, states that provide charitable immunity for volunteers do not protect against criminal acts, gross negligence, recklessness or willful misconduct. These immunity statutes do not prohibit a patient from filing suit against a volunteer, but they require the patient to prove that the care was outside the protection of the immunity law. Thus, volunteers who are merely negligent are afforded protection by these laws.
Based on a determination that willing volunteers were deterred from offering their services by the fear of being sued, the U.S. Congress passed the Volunteer Protection Act of 1997. Under the Act, a medical volunteer for a nonprofit organization is shielded from liability for acts of negligence committed in the scope of the volunteer’s duty. The Act defines a volunteer as an individual who performs services for a nonprofit organization or governmental entity who does not receive compensation or any other valuable thing in lieu of compensation. The Act further requires that, to be protected, the volunteer must have met any state licensing requirements. In addition, the Act, like its state counterparts, does not protect against willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious flagrant indifference to the rights or safety of the person harmed by the volunteer.
The federal Act provides a baseline of protection for volunteers across the country. States are entitled to pass laws that provide greater protection for volunteers but cannot enact laws providing less protection. States can, however, place conditions on the extent of volunteer immunity as follows:
- A state may require that a nonprofit organization or government entity adhere to certain risk management procedures, including mandatory training.
- A state may legislate that a nonprofit organization or government entity is liable for the acts or omissions of its volunteers to the same extent that an employer is liable for the act or omissions of its employees.
- A state may limit liability if a civil action is brought by an officer of a state or local government against a nonprofit organization or government entity.
- A state may require that a nonprofit organization or government entity provide a financially secure source of recovery for persons harmed by volunteers as a prerequisite to gaining the immunity. A financially secure source of recovery may be an insurance policy, coverage from a risk pooling mechanism, or alternative arrangements that satisfy the state that the organization or entity will be able to pay for losses up to a specified amount.