Is a volunteer physician for a team a ‘Good Samaritan?

Whoever coined the phrase “no good deed goes unpunished” likely was in­spired by something other than the liability implications of pro bono med­ical services, but that proverbial wis­dom may have no clearer application in the health law arena than the case of the volunteer youth sports team physician. Admittedly, filed claims against volunteer team doctors are rare, but they are not unheard of, and for the unwary, such cases can bring severe and unexpected professional consequences.

Like most states, Virginia has a so-called “Good Samaritan” law that pro­tects individuals (including physicians) who render emergency care from most civil liability. However, while the issue has not been specifically addressed by the Supreme Court of Virginia, other states have held their respective Good Samar­itan laws inapplicable in the volunteer team physician context. And although Virginia’s statute includes a provision specifically limiting the liability of vol­unteer team doctors, the context of that protection is narrower than it might ap­pear at first glance. Physicians should be cognizant of the limitations of statu­tory “Good Samaritan” protection before undertaking volunteer team physician positions that may expose them to more liability than they might anticipate.

Good Samaritan statute

Virginia’s “Good Samaritan” statute, Va. Code § 8.01-225, generally provides that “any person who, in good faith, ren­ders emergency care or assistance, with­out compensation, to any ill or injured person” shall be immune from civil lia­bility for damages arising from that care. But common conceptions that all gratu­itous emergency medical care is protected under Virginia law misstate and oversim­plify the actual impact of the law.

Volunteer team physicians looking to Virginia’s Good Samaritan statute should consider at least two concerns about whether it offers full protection from suit. First, in Creasy v. U.S., 645 F. Supp. 853, 856 (W.D. Va. 1986), a federal court has held that “volunteers are normally liable for negligence in Virgin­ia,” notwithstanding the commonwealth’s Good Samaritan law. Although this case did not arise in the context of volunteer team physicians and does not come from the Supreme Court of Virginia, it is one of the few judicial interpretations of the law in this area and therefore might be persuasive in other circumstances.

Secondly, to receive protection under the Good Samaritan statute, the medical care must be provided in the context of an “emergency.” Some of the injuries that oc­cur in youth sporting events may fall short of this standard. Even when treatment is clearly emergent – in the case of a fracture or concussion, for example – the variability raises categorical uncertainty potentially requiring discrete physician liability as­sessments with each presented case. Even broadly interpreted, the “emergency” pre­requisite potentially deprives physicians of the kind of bright dividing line that would give them confidence in their ability to provide volunteer team physician care without fear of legal repercussions and suit for simple negligence.

Where Good Samaritan statutes have fallen short of providing protection to vol­unteer team physicians in other states, it has usually been because the care was deemed non-emergent, and therefore out­side the purview of the statute.

Specific protection for school-sponsored teams

Volunteer team physicians in Virgin­ia are fortunate to have explicit stat­utory protection, but only in some cir­cumstances. A subsection of the general Good Samaritan law offers immunity from liability to volunteer team doctors for school-sponsored teams, including teams sponsored by private and religious schools. The statute specifically states that any licensed physician who “renders emergency medical care or emergen­cy treatment to a patient in an athletic event sponsored by a public, private, or religious elementary, middle, or high school while acting without compensa­tion as a team physician, shall not be li­able for civil damages resulting from any act or omission related to such care and treatment.”

Virginia is somewhat unique in provid­ing this specific protection for volunteer team physicians. But before assuming the protection applies, physicians should know the limits of the provision. It pro­tects only physicians providing care to school-sponsored (likely interpreted to mean school-affiliated) teams, so recre­ational and community leagues fall out­side the scope of the law’s protection.

Moreover, like the general Good Sa­maritan statute, this provision purports to protect only “emergency medical care or emergency treatment.” Although the issue has not been litigated in a reported Virginia case, given the specific focus of the statute, it likely offers broader pro­tection than the general Good Samaritan law explained above. And, as a practical matter, viable claims of medical liability are most likely to arise in the context of an emergency, rendering the statute a useful protection in a significant majority of cases. Nonetheless, physicians should understand that even this specific statu­tory empowerment is not a carte blanche grant of immunity.

Insurance coverage

All physicians looking to volunteer their medical services for youth sports teams should look into whether their pro­fessional liability insurance carrier will provide coverage for that involvement. This is imperative where those teams are in recreational leagues unaffiliated with a school given the reduced statutory lia­bility protection in that context. Some in­surers (whether they be private insurers or self-insured hospital systems) do not cover this type of activity, and physicians should understand that they may be sub­ject to personal liability where that is the case. Your broker, insurance provider, or attorney should be able to address the scope of your specific policy.

Despite the relative liability protections noted above, physicians should also un­derstand that Good Samaritan statutes do not preclude Board of Medicine inves­tigations, which any competitor or parent could initiate via a complaint. Likewise, physicians cannot rely on participant li­ability waivers, which generally do not function as a bar to litigation in Virginia.

This article is not to suggest that physi­cians should not undertake volunteer team physician positions, but to ensure they ap­proach such opportunities with eyes wide open about the possible liability exposure issues. Virginia is comparatively protective of physicians in this role, but, like a football helmet, that protection is limited.

Timothy D. Patterson is an attorney in the Richmond office of Hancock, Daniel, Johnson & Nagle PC, practicing in the ar­eas of medical malpractice litigation and regulatory board defense.