As Need for Volunteer MDs Rises, Waiving Malpractice Insurance is Reconsidered

Beth Fitzgerald | May 23, 2012 | Health Care
Bills would help health centers in poor cities but face opposition for placing limits on a patient’s right to sue

Retired physicians who volunteer at community health centers, to care for the poor and uninsured, would be shielded from malpractice lawsuits under legislation being considered in Trenton.

Passage of the bills, A2178/S1165, would allow doctors to donate their time without also having to buy malpractice insurance, which can easily cost more than $100,000 a year. Advocates say their services are desperately needed in New Jersey’s poorest cities.

Nationally, 13 states have adopted this legislation, including Florida, Michigan and Mississippi. But the bill stalled in New Jersey in the last session and once again faces strong opposition from attorneys who are opposed to the limits it places on the patient’s right to sue.

“The lawyers oppose this because they believe the right to sue trumps the right to care, and I don’t think it does,” said Assembly sponsor Dr. Herb Conaway Jr. (D-Burlington). The bill would not provide the volunteer doctors with immunity in cases of “gross negligence or willful or wanton misconduct.”

The legislation is supported by Kathy Grant Davis, president of the New Jersey Primary Care Association, whose members are federally-qualified health centers (FQHC) that receive federal and state funds to provide medical care to mostly low income, urban residents, typically on Medicaid or uninsured.

The federal government funds the primary care delivered by FQHCs, which then refer to specialists such as oncologists, orthopedists, or endocrinologists. But it is difficult to find specialists who will treat the uninsured, and it’s not unusual for the FQHC patient to wait weeks or months for care, Davis said.

Conaway said without the immunity from civil liability, retired physicians couldn’t volunteer because they’d have to carry expensive malpractice insurance. Instead, retired New Jersey doctors leave the U.S. and join humanitarian medical missions to other countries.

“Doctors have to go to Panama, Guatemala or wherever to volunteer, but I need their services here — I need them in Camden, Newark and Jersey City,” Davis said.

But Red Bank attorney John E. Keefe Jr., chairman of the civil trial section of the New Jersey State Bar Association, opposes the bills. The legislation, he contends, “would really only keep courthouses open to people who can afford healthcare. It would lock the courthouse door to those citizens who cannot afford healthcare, and it is a very discriminatory.”

The advocates disagree. Patients of FQHCs and the other nonprofit clinics covered by the bill do not often file lawsuits. Between 1992 and 2010, according to figures provided by Davis, there were 54 lawsuits filed against New Jersey’s FQHCs, for an average of about 3 per year. The state’s FQHC have 1.4 million patient visits a year.

“The diagnoses of our patients are no different than the nation as a whole.” Said Gary Linington, executive director of an Asbury Park-based FQHC, the Visiting Nurse Association of Central Jersey Community Health Center. “They need the same specialists that everyone else needs.”

But while the needs are the same, the level of access is not. “It can take months, and you have to find specialists who are willing to see them, and they have to be able geographically to get to certain parts of the state. It is not just the length of time — it is about being able to physically get to the appointment,” Linington said.

If the legislation is approved, the FQHC would schedule a block of time for a specialist to provide care at the health center, making it convenient for the patients.

The bills are also supported by the Medical Society of New Jersey, whose chief executive Lawrence Downs said encouraging retired physicians to volunteer will address a looming doctor shortage that is likely to worsen as baby boomers age.

“We have people in the inner cities who wait very long times to see specialists and we need to provide an incentive to physicians who are winding down their practice or cutting back on their hours,” Downs said. “They can volunteer in clinics and keep their clinical skills sharp and provide needed services.”

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