EXECUTIVE SUMMARY
Hospital volunteers can bring substantial liability risks. They should be carefully screened and trained at a level comparable to employees.
- Volunteers may be exposed to liability.
- State and federal laws offer some protection.
- Volunteers should be trained in HIPAA compliance.
Volunteers serve many important roles in a hospital, but they can bring potential liability. A risk mitigation plan can help healthcare organizations make the most of volunteers without exposing themselves to undue risks.
With the erosion of charitable immunity laws and the emergence of healthcare as big business, hospitals should assume they can be liable for any actions of their volunteers, says Peter Cassat, JD, partner with Culhane Meadows in Washington, DC. Among other things, hospitals can be sued for the negligence of their volunteers if they fail to adequately screen, train, or supervise them, he says. Hospitals also can be directly liable for the negligent acts of their volunteers.
While volunteers may have Good Samaritan protection under state or federal laws in some cases, these protections do not immunize the hospital from liability, Cassat says. Hospitals should conduct training in key risk areas and maintain records substantiating those efforts. For specific types of volunteers, a volunteer handbook is appropriate. Cassat recommends that organizations require volunteers to acknowledge in writing that they have reviewed the handbook and completed all applicable training.
Policies or procedures in these areas should be developed in close coordination with the hospital’s risk management and insurance functions, Cassat says. In many cases, volunteers can be covered under the organization’s insurance policies.
“As a general matter, the more discretion volunteers can exercise, the more screening and training that should be performed,” Cassat notes. “Hospitals should keep in mind that volunteers may be prone to cyber risks, phishing incidents, and other information security risks in the same manner as employees. Therefore, the organization should conduct volunteer training in these areas as well.”
Act Protects Volunteers
Volunteers also can be subject to potential liability in some situations, but there are state and federal laws designed to protect volunteers in healthcare, says Henry Norwood, JD, an attorney with Kaufman Dolowich in San Francisco.
The federal Volunteer Protection Act of 1997 (VPA) protects volunteers providing services at not-for-profit organizations from liability, Norwood explains. The VPA only protects volunteers to the extent they are acting within the scope of their volunteer responsibilities and are properly licensed (if required) to perform their voluntary services. However, the act only protects volunteers from liability — not the hospital or healthcare organization.1
States also have passed volunteer liability protection laws, including Good Samaritan laws, damage limitation laws, and charitable protection laws, similar to the VPA, Norwood says. Importantly, the VPA preempts any state law offering less protection to volunteers. States are permitted to grant volunteers more protection than the VPA, but states cannot provide less protection, he explains.
The VPA does not apply to volunteers operating motor vehicles, Norwood notes. Many state law volunteer protection statutes also exclude protection for volunteers operating motor vehicles. Because of this, hospitals engaging volunteers to operate motor vehicles should ensure drivers are properly screened, trained, and added to the hospital’s insurance policies before services are provided.
Liable for Harm
Hospitals remain liable for the negligence of their volunteers or negligence that causes harm to volunteers, says Richard Reice, JD, partner with Messner Reeves in New York City. Generally, volunteers are not employees and thus not covered by workers’ compensation insurance, but they will be covered by a hospital’s general liability policy.
The VPA protects volunteers from lawsuits and defines “volunteer” as an individual who donates their services to religious, charitable, or similar nonprofit corporations such as a hospital, Reice explains. They work without expectation of pay, and their work usually is distinct from those who perform similar work for pay.
Two types of organizations are covered by the VPA:
- Any charitable organization that has 501(c)(3) tax-exempt status;
- A non-501(c)(3) charity that is a “not-for-profit organization which is organized and conducted for public benefit and operated primarily for charitable, civic, educational, religious, welfare, or health purposes.” The latter category includes hospitals.1
To be covered, the volunteer must meet the following four-part test:
- “The volunteer was acting within the scope of the volunteer’s responsibilities;”
- “The volunteer was properly licensed, certified, or authorized by the appropriate authorities for the activities or practice in the state in which the harm occurred, where the activities or practice was undertaken within the scope of the volunteer’s responsibilities in the hospital;”
- “The harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer;”
- “The harm was not caused by the volunteer operating a motor vehicle, vessel, aircraft, or other vehicle for which the state requires the operator or the owner of the vehicle, craft, or vessel to: (A) possess an operator’s license; or (B) maintain insurance.”1
If a volunteer engages in conduct that constitutes a crime, a sexual offense, or other federal or state civil rights law violation, the volunteer and the hospital are subject to suit, Reice says.
Hospitals should ensure volunteers are properly screened, trained, and supervised because even if they are not personally susceptible to suit, the hospital can be sued for negligence and other claims for actions or omissions by a volunteer, Reice says. Training curricula and protocols should be created, performance standards established and enforced, and documentation should be maintained regarding required training and completion. Volunteers must hold the proper licenses, certifications, and/or authorization to act, and those acts must be within his or her job description.
“Their duties must be confined to the specific areas for which they are volunteering, such as transporting patients in the hospital, reading to patients, or volunteering as a guide or gift shop worker,” Reice explains. “In addition, volunteers are covered by HIPAA. During volunteer orientation, hospitals should spend extra time highlighting this law, especially in tight-knit communities where people often know each other and the urge to gossip may be greater. In addition, there is generally little reason to give volunteers access to hospital computer systems or patient data access.”
Generally, the VPA does not cover volunteers who are operating a vehicle that requires an operator’s license, Reice notes. Thus, if a volunteer gets into an accident, the VPA will not protect the volunteer or the hospital from suit and possible liability. The hospital can mitigate this risk by not allowing volunteers to drive their own vehicles on hospital business, Reice says.
If it is necessary for them to drive their own vehicles, the hospital should verify:
- the volunteer has a current license;
- the volunteer has a good driving record;
- the volunteer’s vehicle is properly registered and insured;
- the driver signs a pledge to obey all traffic laws and regulations.
The hospital also should check with its carriers to ensure adequate liability coverage should the volunteer get into an accident, Reice says.
Multiple Challenges to Address
Volunteers present some challenges from a liability perspective, says Travis Tatko, JD, partner with Capell Barnett Matalon & Schoenfeld in New York City.
At the outset, there are some threshold issues with using volunteers, Tatko says. First, the hospital needs nonprofit status to permit volunteers, and there are several complicating factors with hospitals. Many hospitals are not bona fide nonprofits, and there are for-profit entities that run certain aspects of hospitals.
These factors could shift a “volunteer” into employee status, which would avail the “volunteer” of all the federal, state, and local laws and regulations applicable to employees, including wage-hour laws, Tatko explains. Second, volunteers could potentially be shifted into employee status if they receive compensation or benefits from the hospital.
“Anything beyond reimbursement of expenses could trigger employee status, including things like disability benefits,” Tatko notes.
Injuries to volunteers are a substantial risk for hospitals. Employers are afforded protection under workers’ compensation for employees, which limits the employer’s liability for workplace injuries. But workers’ compensation does not apply to volunteers, Tatko says. This opens the door to potential tort claims against the hospital with generally uncapped potential liability, typically subject to state law.
A hospital can be held liable for the acts and omissions of volunteers, Tatko says. Usually, the hospital’s insurance covers these types of claims, but the hospital should make sure that the insurance policy applies to volunteers. There are other situations where the hospital could be sued for the acts and omissions of a volunteer that are not covered under insurance, including sexual assault and harassment claims.
“In addition, although federal and state law provides some liability protections for volunteers, please keep in mind that the volunteers themselves could be dragged into a lawsuit and face personal liability as well,” Tatko says.
Train Volunteers Appropriately
Training and other precautions can help reduce or mitigate certain risks for hospitals using volunteers, but they will not eliminate potential risks in most cases.
“A hospital should engage similar types of training programs for volunteers as employees. A volunteer should be subject to a background check with the volunteer’s written consent. A volunteer agreement/offer letter should lay out the terms and conditions of the volunteer’s relationship with the hospital similar to an employment agreement,” Tatko says. “There should be a volunteer handbook akin to an employee handbook. The volunteers should engage in safety and harassment training, and there should also be policies and procedures to supervise volunteers, inclusive of an at-will volunteer policy such that a volunteer relationship may end at any time for any or no reason in either the volunteer’s or hospital’s discretion.”
Hospitals should screen prospective volunteers to a similar degree as prospective employees. “Some hospitals may feel inclined to accept any volunteers due to staffing shortages and the like. That is a potentially perilous situation,” Tatko notes. “If a prospective volunteer presents certain risks, the hospital would be wise to refrain from engaging with him or her or limit the volunteer’s scope of activities to lower-risk items.”
Generally, volunteers should not be taking on responsibilities that are reserved for employees, or that are inherently risky, Tatko says. A hospital also would be well advised to refrain from using volunteers in situations that could impose substantial liability, such as patient care or areas of the hospital that are reserved for patient procedures.
A good rule of thumb is to attempt to use volunteers in common areas of the hospital that are accessible to the public, Tatko suggests. Limits should be placed on the hospital’s information systems, including access to HIPAA-protected content.
For any volunteers who will be driving hospital-owned vehicles, the hospital should ensure the volunteers are covered under the nonprofit’s commercial automobile insurance policies.
“For volunteers who use their own vehicles, it is important that the hospital obtain insurance coverage for these volunteer-owned vehicles as well, but the hospital should also make sure that the volunteer has his or her own insurance policy at limits acceptable to the hospital since the volunteer’s personal insurance will be the primary insurance in the event of an accident,” Tatko explains.
The hospital also should have policies and procedures regarding volunteer drivers that limit volunteer driving to lower-risk situations. Higher-risk passengers such as children, vulnerable adults, and those prone to injuries should be reviewed with caution, Tatko advises. There should be screening, review of driving records, training, and documentation with the volunteer, including an agreement setting forth the terms and conditions of volunteer driving.
REFERENCE
- 42 USC Ch. 139: Volunteer Protection. 1997. https://uscode.house.gov/view....
SOURCES
- Peter Cassat, JD, Partner, Culhane Meadows, Washington, DC. Phone: (443) 547-7902. Email: [email protected].
- Henry Norwood, JD, Kaufman Dolowich, San Francisco. Phone: (628) 219-9814. Email: [email protected].
- Richard Reice, JD, Partner, Messner Reeves, New York City. Phone: (646) 880-3714. Email: [email protected].
- Travis Tatko, JD, Partner, Capell Barnett Matalon & Schoenfeld, New York City. Phone: (646) 448-6833. Email: [email protected].
Volunteers serve many important roles in a hospital, but they can bring potential liability. A risk mitigation plan can help healthcare organizations make the most of volunteers without exposing themselves to undue risks.
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