21 March 2015

Liability Issues for Overseas Health Care Volunteers

Dr. and Mrs. Boe Volunteering in Kenya

LIABILITY ISSUES FOR OVERSEAS HEALTH CARE VOLUNTEERS
The question of malpractice risk for volunteers was raised at the October 2014 meeting of the Friends of Maua.  This issue has been of concern for many years among health professionals who were considering volunteering overseas.  I addressed this issue some twelve years ago in an article for the KNOCK, the newsletter for the Fellowship of Health Care Volunteers (1).  At that time the conclusion was that there was no significant risk of a successful suit being brought against an overseas health professional volunteer.  Considering the many recent changes in the health care environment and continuing concern on the part of health professionals, I felt that it was time for an update. 
I have just contacted a number of GBGM and UMVIM personnel.  No one was aware of any litigation ever having been brought against an UMVIM team member or Individual Volunteer.   In 2007 Kuhn (2), reported no known successful malpractice suits brought against a health professional volunteering overseas.  In 2008, the Christian Medical and Dental Association, in an extensive survey, reported five successful suits, none in Africa or Latin America. (3).   All were brought against long term volunteers , and  4 of the 5 were for $20,000 or less.  More recent articles acknowledged a theoretical possibility, but emphasized that the actual risk was extremely low.(3,4).
In the original KNOCK article, I included an opinion on the liability issue that Curtis Harris, at that time the medical-legal consultant for the Christian Medical and Dental association, offered to us.  I feel that it is as relevant today as it was 12 years ago.

From: Curtis Harris [mailto:mdjd@ionet.net]
Subject: Malpractice Problems

Dear Roger:  Concerning your questions about malpractice insurance for foreign missions work.  Let me try to answer your questions.  First, there is a risk, of course. But I think you realize that 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. Second, 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. Third, as to UMF's risk: If you have a permanent facility, a local government could grant someone your volunteers treated the right to sue UMF 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) 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. I wish you all the best. Curtis Harris, MD, JD (1)

It is my considered feeling that the combination of this thoughtful legal opinion and the continued evidence of the almost infinitesimal risk of being sued as a short term overseas volunteer, that we can be much reassured about taking a volunteer position overseas.  It is important to be aware that our stateside liability coverage usually stops at the US border.  Although overseas coverage is available, it is relatively costly, and the need is certainly debatable.

Several recent articles have brought up another consideration. (4,5).  Even this slight liability risk is lessened if we do our job well, if we stay within the scope of our ability and training, and most of all if we give continuing evidence of our genuine caring and concern for the patients we treat.
References:
1.     Boe, R.  Malpractice Issues for Health Care Volunteers: The KNOCK, Spring 2002.
2.     W. A. Kuhn, Medical malpractice in the Developing World.  World Medical Missions.  Winepress Publishing, 2007
3.     Referred to in Uejima, T.  The current State of Medical Malpractice Overseas, American Society of Anesthesiologists Journal,  Feb 2011.
4.     Elgafi, S  Medical liability in Humanitarian Missions, The Journal of Humanitarian Assistance November, 2014
5.     Yorgin, P.  Biblical Concepts Involved in Malpractice in Short-term  Mission.  centerforhim.org/wp-content uploads, 2013



Roger Boe MD

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