Malpractice Exemption Pits Lawyers Against Volunteer Doctors

Beth Fitzgerald | June 25, 2012 | Health Care
Shielding doctors who treat the poor for free from malpractice lawsuits creates two-tier system, attorneys argue

Legislation that would shield doctors from malpractice lawsuits when they give free medical care to the needy once again faces fierce opposition, but is strongly supported by doctors who volunteer their time. This same group is hoping to encourage colleagues — specialists in particular — to treat patients who can’t afford to pay.

The bills (A2178/S1165) failed to pass in the final legislative session.

Attorneys argue that the bills would unfairly prevent low-income New Jerseyans from suing doctors for malpractice, thus making malpractice litigation a privilege of those who can afford to pay for healthcare.

Testifying during the legislative hearings, the New Jersey Association for Justice, the trial lawyers’ group, argued that the bills “will establish two tiers in our society: one which retains legal rights and access to justice, and another for which the courthouse doors are locked and bolted. All citizens should have access to quality healthcare, but all citizens should also have access to justice. Healthcare provided at the clinics and centers covered by this bill will not be ‘free’, since the hidden cost of seeking that care will be the loss of legal rights.”

While the legislation grants immunity from malpractice lawsuits to doctors who treat patients for free, it would not shield them in cases of “gross negligence or willful misconduct.” Supporters said the bill would mean that retired doctors wouldn’t have to obtain malpractice insurance to provide free care.

Michael Azzara chairs the board of Bergen Volunteer Medical Initiative in Hackensack, a free clinic. The former chief executive of Valley Hospital in Ridgewood, Azzara said providing civil immunity to volunteer doctors would make help BVMI recruit more doctors and expand its patient population, which now numbers about 750.

“These are people who fall between the cracks –they make too much for Medicaid, but they don’t make enough to pay for health insurance,” Azzara said. BVMI’s patients are working people struggling to make ends meet — landscapers, truck drivers, housekeepers, restaurant workers. Most of BVMI’s volunteer doctors are retired, although some have their own practices and work part time at the clinic, he said.

BVMI provides malpractice coverage to its volunteer doctors under the Federal Tort Claims Act, which covers community health centers, free clinics, and federally qualified health centers. But to take advantage of the federal malpractice program, the volunteer doctors have to see patients at BVMI in Hackensack. If New Jersey adopts legislation exempting volunteer doctors from malpractice suits, it could expand the range of services, particularly from specialists, that BVMI could offer its patients, Azzara said.

Norma Gindes, executive director of the BVMI, said about 70 physicians and nurse practitioners volunteer on regularly. Most deliver primary care, but there are a few specialists who volunteer, including several gynecologists.

“We have saved lives because we have discovered breast cancer and have been able to get the patients in for treatment,” Gindes said. She added that BVMI operates on the “medical home” model, and seeks to have patients develop a relationship with a doctor, rather than getting care from a number of different physicians.

Internist Alyssa Gelmann has volunteered for the past two years at BVMI. “We offer primary care that prevents problems from worsening, but we definitely need more specialists” — including cardiologists, pulmonologists, rheumatologists, endocrinologists, and most types of surgery. She said BVMI can often get specialists on the phone to do consultations, and has a network of specialist to refer patients, but it’s always a challenge.

Because BVMI functions as a medical home, there are patients Gelmann has seen regularly for two years. “I think there is a trust level that is built up over time — it takes time for that relationship to develop, and once they can trust you they are more likely to follow recommendations and they have more of an interest in their healthcare, and in making the decisions in their lives that improve their health.”