- Email: [email protected]
Volunteering Your Services
DENTISTRY
AND THE LAW
V
olunteering Your Services
Most would agree that helping the needy through volunteerism is a worthy cause. Each year, thousands of dentists volunteer their time and talents to help the less fortunate. But are there risks involved in doing so? What does the law have to say about donating your services?
BY PETER M. SFIKAS, J.D.
278
hink back to just a few short months ago, when you were full of holiday cheer. Now think about how, as dentists, you can spread that goodwill throughout the year. And read why, with proper and readily available safeguards, you can safely provide volunteer dentistry to those in need. People volunteer for a variety of reasons: to help someone, to feel good, to be an agent of change, to share a skill, to feel needed, to donate their professional skills, to have an impact, to make new friends, to do a civic duty, to demonstrate a commitment to a cause or belief, for religious reasons and for recognition. Whatever the reason, people are doing a lot of it. During 1995, 93 million Americans, about 48.8 percent of the population, volunteered their services, spending an average of 4.2 hours per week. Dentists are no exception. The ADA’s 1997 “Survey of Current Issues in Dentistry” special report on charitable dental care indicates that approximately 6 in 10 (60.7 percent) of all dentists reported that their primary practice provided charitable dental care to some population group in 1996. In that same year, dentists in a primary practice setting provided a per month average of 4.4 hours of free dental care and 8.9 hours of discounted dental care. The ADA’s “Principles of Ethics and Code of Professional Conduct” section on Community Service states that “… dentists have an obligation to use their skills, knowledge and experience for the improvement of the dental health of the public and are encouraged to be leaders in their community.” One way that dentists can fulfill their professional obligation is by volunteering their services.
JADA, Vol. 130, February 1999 Copyright ©1998-2001 American Dental Association. All rights reserved.
LAW
Y
ou may wonder whether there are liability issues that stand in the way of providing free dentistry to those in need. After all, any time a dentist provides care, there is the risk of a malpractice claim, and volunteer dentistry is no exception—subject perhaps to a few state law exceptions that are beyond the scope of this article.1 Your exposure to the financial consequences of a malpractice claim will, of course, depend on the scope of your professional liability insurance. The good news is that coverage is available to help ensure that liability issues need not stand in your way from providing volunteer care. We asked a number of major dental professional liability insurance underwriters a series of questions about dental volunteerism. All of the underwriters we contacted said that their policies cover charity care. Here are some specifics of what they told us: dAs a general rule, all legal procedures performed by a duly licensed dentist will be covered by a full-time dental professional liability policy. Accordingly, volunteer services are typically covered anywhere in the world for claims brought in the United States against a dentist for negligent provision of professional services. dThe policies do not have any exclusions or limitations for dentists who provide care without compensation. There may be exclusions, increased premiums or underwriting criteria for certain dentists or for specific procedures—for example, delivering anesthesia or surgical parameters—but these would be across the board and not limited to volunteer activity.
dNor do the policies have exclusions or limitations stating that care must be given in the dentist’s office only. The policies generally cover patient care provided in places other than the dentist’s office, such as at health fairs, homes of inbound patients, nursing homes, free clinics and mobile dental units. One carrier advised it might be willing to extend a dentist’s general liability coverage, as well as his or her professional liability coverage, after being notified and given a chance to underwrite any additional risk. dCoverage usually is given for
Coverage usually is given for dental care performed outside the insured dentist’s office without any limitations or exclusions based on the type of equipment being used. dental care performed outside the insured dentist’s office without any limitations or exclusions based on the type of equipment being used. For example, using portable equipment for nursing home care does not appear to cause loss or limitation of coverage. An exception, of course, would be if the dentist uses materials or equipment that he or she knows, or should know, to be hazardous. Again, the specifics might vary by carrier; one underwriter indicated it would condition coverage on proper inspection of portable equipment and there being no contraindication to its use.
Good news also is available for retired dentists who have no primary practice to insure but Mr. Sfikas is ADA general counsel and wish to proan adjunct professor vide volunteer of law at Loyola University of Chicago care. To state School of Law. He the obvious, has lectured and retired denwritten on legal issues and is a fellow tists who proof the American Colvide volunteer lege of Trial Lawyers. Address reprint recare without quests to Mr. Sfikas maintaining at the ADA, 211 E. Chicago Ave., their licensure Chicago, Ill. 60611. and appropriate insurance coverage practice at grave risk. However, some carriers provide a part-time policy for a reduced premium, which could cover a retired dentist providing volunteer care. One carrier specifically offers coverage to retired dentists when they desire to provide community volunteer care at a charge of 10 percent of the regular premium it would have charged a nonretired dentist. Another carrier is looking at introducing a volunteer policy for dentists who have been insured with it for a period (yet to be determined) before retirement. Yet another carrier offers a policy to dentists who accept no compensation in excess of actual expenses incurred. In addition to checking with their insurance carriers to make sure they have the right coverage in place, dentists wishing to provide volunteer care should carefully examine the requirements of state and/or local laws that may apply. Furthermore, as with the provision of any dental care, good risk management is indicated. In the context of volunteer care, the location, the organization volunteered for (if
JADA, Vol. 130, February 1999 Copyright ©1998-2001 American Dental Association. All rights reserved.
279
LAW any) and the demographics of the patient population could all have an effect on risk management. The bottom line is: if it feels good––and it will––do it. ■ This article is informational only and does not constitute legal advice. Dentists must consult with their private attorneys for such advice.
280
The author expresses his appreciation to Mark Rubin, associate general counsel, for his assistance in preparing this article. 1. From time to time, state dental societies have sought legislation to grant limited immunity to dentists providing volunteer dental care. While most such lobbying efforts have not been successful, in 1997 Montana enacted a law placing limits on liability of licensed dentists, dental surgeons, or oral surgeons who, for charitable purposes, provide care or
assistance without compensation, except for reimbursement for supplies. Those dentists are not liable for civil damages in Montana for acts or omissions other than damages occasioned by gross negligence or by willful or wanton acts or omissions by the dentist, dental surgeon or oral surgeon. Dentists should check with their state societies and/or private attorneys before relying on any state laws that appear to limit their liability for providing volunteer care, and be sure to understand the limitations of such laws.
JADA, Vol. 130, February 1999 Copyright ©1998-2001 American Dental Association. All rights reserved.
AND THE LAW
V
olunteering Your Services
Most would agree that helping the needy through volunteerism is a worthy cause. Each year, thousands of dentists volunteer their time and talents to help the less fortunate. But are there risks involved in doing so? What does the law have to say about donating your services?
BY PETER M. SFIKAS, J.D.
278
hink back to just a few short months ago, when you were full of holiday cheer. Now think about how, as dentists, you can spread that goodwill throughout the year. And read why, with proper and readily available safeguards, you can safely provide volunteer dentistry to those in need. People volunteer for a variety of reasons: to help someone, to feel good, to be an agent of change, to share a skill, to feel needed, to donate their professional skills, to have an impact, to make new friends, to do a civic duty, to demonstrate a commitment to a cause or belief, for religious reasons and for recognition. Whatever the reason, people are doing a lot of it. During 1995, 93 million Americans, about 48.8 percent of the population, volunteered their services, spending an average of 4.2 hours per week. Dentists are no exception. The ADA’s 1997 “Survey of Current Issues in Dentistry” special report on charitable dental care indicates that approximately 6 in 10 (60.7 percent) of all dentists reported that their primary practice provided charitable dental care to some population group in 1996. In that same year, dentists in a primary practice setting provided a per month average of 4.4 hours of free dental care and 8.9 hours of discounted dental care. The ADA’s “Principles of Ethics and Code of Professional Conduct” section on Community Service states that “… dentists have an obligation to use their skills, knowledge and experience for the improvement of the dental health of the public and are encouraged to be leaders in their community.” One way that dentists can fulfill their professional obligation is by volunteering their services.
JADA, Vol. 130, February 1999 Copyright ©1998-2001 American Dental Association. All rights reserved.
LAW
Y
ou may wonder whether there are liability issues that stand in the way of providing free dentistry to those in need. After all, any time a dentist provides care, there is the risk of a malpractice claim, and volunteer dentistry is no exception—subject perhaps to a few state law exceptions that are beyond the scope of this article.1 Your exposure to the financial consequences of a malpractice claim will, of course, depend on the scope of your professional liability insurance. The good news is that coverage is available to help ensure that liability issues need not stand in your way from providing volunteer care. We asked a number of major dental professional liability insurance underwriters a series of questions about dental volunteerism. All of the underwriters we contacted said that their policies cover charity care. Here are some specifics of what they told us: dAs a general rule, all legal procedures performed by a duly licensed dentist will be covered by a full-time dental professional liability policy. Accordingly, volunteer services are typically covered anywhere in the world for claims brought in the United States against a dentist for negligent provision of professional services. dThe policies do not have any exclusions or limitations for dentists who provide care without compensation. There may be exclusions, increased premiums or underwriting criteria for certain dentists or for specific procedures—for example, delivering anesthesia or surgical parameters—but these would be across the board and not limited to volunteer activity.
dNor do the policies have exclusions or limitations stating that care must be given in the dentist’s office only. The policies generally cover patient care provided in places other than the dentist’s office, such as at health fairs, homes of inbound patients, nursing homes, free clinics and mobile dental units. One carrier advised it might be willing to extend a dentist’s general liability coverage, as well as his or her professional liability coverage, after being notified and given a chance to underwrite any additional risk. dCoverage usually is given for
Coverage usually is given for dental care performed outside the insured dentist’s office without any limitations or exclusions based on the type of equipment being used. dental care performed outside the insured dentist’s office without any limitations or exclusions based on the type of equipment being used. For example, using portable equipment for nursing home care does not appear to cause loss or limitation of coverage. An exception, of course, would be if the dentist uses materials or equipment that he or she knows, or should know, to be hazardous. Again, the specifics might vary by carrier; one underwriter indicated it would condition coverage on proper inspection of portable equipment and there being no contraindication to its use.
Good news also is available for retired dentists who have no primary practice to insure but Mr. Sfikas is ADA general counsel and wish to proan adjunct professor vide volunteer of law at Loyola University of Chicago care. To state School of Law. He the obvious, has lectured and retired denwritten on legal issues and is a fellow tists who proof the American Colvide volunteer lege of Trial Lawyers. Address reprint recare without quests to Mr. Sfikas maintaining at the ADA, 211 E. Chicago Ave., their licensure Chicago, Ill. 60611. and appropriate insurance coverage practice at grave risk. However, some carriers provide a part-time policy for a reduced premium, which could cover a retired dentist providing volunteer care. One carrier specifically offers coverage to retired dentists when they desire to provide community volunteer care at a charge of 10 percent of the regular premium it would have charged a nonretired dentist. Another carrier is looking at introducing a volunteer policy for dentists who have been insured with it for a period (yet to be determined) before retirement. Yet another carrier offers a policy to dentists who accept no compensation in excess of actual expenses incurred. In addition to checking with their insurance carriers to make sure they have the right coverage in place, dentists wishing to provide volunteer care should carefully examine the requirements of state and/or local laws that may apply. Furthermore, as with the provision of any dental care, good risk management is indicated. In the context of volunteer care, the location, the organization volunteered for (if
JADA, Vol. 130, February 1999 Copyright ©1998-2001 American Dental Association. All rights reserved.
279
LAW any) and the demographics of the patient population could all have an effect on risk management. The bottom line is: if it feels good––and it will––do it. ■ This article is informational only and does not constitute legal advice. Dentists must consult with their private attorneys for such advice.
280
The author expresses his appreciation to Mark Rubin, associate general counsel, for his assistance in preparing this article. 1. From time to time, state dental societies have sought legislation to grant limited immunity to dentists providing volunteer dental care. While most such lobbying efforts have not been successful, in 1997 Montana enacted a law placing limits on liability of licensed dentists, dental surgeons, or oral surgeons who, for charitable purposes, provide care or
assistance without compensation, except for reimbursement for supplies. Those dentists are not liable for civil damages in Montana for acts or omissions other than damages occasioned by gross negligence or by willful or wanton acts or omissions by the dentist, dental surgeon or oral surgeon. Dentists should check with their state societies and/or private attorneys before relying on any state laws that appear to limit their liability for providing volunteer care, and be sure to understand the limitations of such laws.
JADA, Vol. 130, February 1999 Copyright ©1998-2001 American Dental Association. All rights reserved.