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  • Legal Realities of Student-Run
  • Free Clinics:

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  • What Faculty Advisors Need to Know

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  • Legal Realities of Student-Run Free Clinics: What Faculty Advisors Need to Know"

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NO FINANCIAL DISCLOSURES

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Student-Run Free Clinics

  • Provide healthcare services for uninsured and other underserved populations

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  • Enhance the health and wellbeing of the community

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  • Provide and enhance clinical education for students in more than one health care profession

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  • Expose trainees to health care disparities and social determinants of health

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Issues - Generally

  • Integration of free clinics into medical education programs varies by school

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  • Degree to which students are encouraged or required to participate in the free clinic varies

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  • Availability of faculty advisors who are passionate about free care and willing to participate in the clinic

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  • Concern by faculty advisors about potential malpractice liability exposure and protection under the state Good Samaritan Act

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Learning Objectives

  • Overview of the Illinois Good Samaritan Act
  • Potential liability for faculty and entity
  • Importance of documentation in the health record
  • Risk management tips

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The Good Samaritan Act - Illinois

  • Protections for the “generous and compassionate acts of citizens who volunteer their time and talents to help others”
  • Provides exemptions from civil liability (exceptions for willful and wanton misconduct) for:
      • emergency care such as CPR (person must be trained in basic CPR in accordance with the standards of the American Red Cross or the American Health Association)
      • use of automated external defibrillator (AED) used in good faith in accordance with his/her training
      • emergency care by a physician and other licensed providers
      • free dental clinics
      • free medical clinics

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What Is A Free Clinic?

  • Free clinics are volunteer-based, safety-net organizations that provide services at no cost to indigent individuals who are predominantly uninsured

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  • Some entities that charge a nominal fee may also be considered free clinics if they provide essential services regardless of the patient’s ability to pay

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  • Charitable clinics provide essential services regardless of the patient’s ability to pay, though they generally charge a nominal fee

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Is a Charitable Clinic a Free Clinic?

Answer: Not necessarily, but charitable clinics can qualify as free clinics under the Act

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    • The clinic must meet the criteria for free clinic qualification

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    • Some charitable clinics provide essential services regardless of the patient’s ability to pay

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5 Criteria for Free Clinic Qualification

1. The clinic must be an organized community-based program providing medical care without charge to individuals unable to pay

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745 ILCS 49/30(b)

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Criteria for Free Clinic Qualification

2. The clinic does not include an overnight stay in a healthcare facility

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    • Overnight services are beyond the scope of free clinics under the Act

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    • The clinic is limited to services that do not require a licensed hospital or ambulatory surgical treatment center

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745 ILCS 49/30(b), (a)

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Criteria for Free Clinic Qualification

3. An explanation of the exemption from civil liability must be posted in a conspicuous place

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    • The exemption sign should include an explanation of the civil liability immunity, as provided in Section 30 of the Act.

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745 ILCS 49/30(c)

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5 Criteria for Free Clinic Qualification

4. Patients may pay a portion of the value of the medical services provided if:  

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    • the patient acknowledge their ability and willingness to pay
    • the payment is voluntary
    • the payment is used solely for the clinic’s overhead expenses
    • no portion of any money collected may be used as a fee or compensation to any licensed professional providing services

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745 ILCS 49/30(e)

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5 Criteria for Free Clinic Qualification

5. Immunity extends to physicians, hospitals, and other healthcare providers who treat, advise or diagnose a patient on referral from an established free medical clinic without fee or compensation  

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745 ILCS 49/30(d)

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Free Clinics Without Physical Premises

Free clinics physically unable to post a notification of civil liability exemption sign must supply a written copy of the exemption from civil liability

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    • to every patient
    • or parent or guardian of minor patients
    • Must be in 14-point bold type

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745 ILCS 49/30.5

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Are Free Clinics Exempt form Civil Liability Under the Act?

No.

The Act does not directly exempt the free clinic entity from liability.

Entity should purchase professional liability coverage and other insurance coverage, if able.

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Does the Illinois Good Samaritan Act Apply to Physicians?

Yes, any person:

    • “licensed under the Medical Practice Act of 1987,” or
    • licensed to practice in another state,
    • “who, in good faith, provides medical treatment, diagnosis, or advice
    • as a part of the services of an established free medical clinic providing care, including but not limited to home visits,
    • Is not liable for civil damages for acts or omissions in providing the care, unless the licensed professional’s misconduct is willful or wanton

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745 ILCS 49/30(a)

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Does the Illinois Good Samaritan Act Apply to Others?

Yes, it includes, but is not limited to:

    • advanced practice nurses
    • retired physicians
    • physician assistants
    • nurses
    • pharmacists
    • physical therapists
    • podiatrists
    • social worker licensed in this State or any other state
    • or territory of the United States,

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745 ILCS 49/30(a)

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5 Criteria for Exemption from Civil Liability

1. The medical treatment, diagnosis, or advice is part of the services of an established free medical clinic providing care to medically indigent patients

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    • Licensed medical professionals must provide free services at organized community-based programs that provide free services to indigent patients

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745 ILCS 49/30(d)

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5 Criteria for Exemption from Civil Liability

2. The services are performed without compensation

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    • Services provided must not be “within the scope of employment”
    • May not receive any fee or compensation

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See Carroll v Community Health Care Clinic, Inc., 2017 IL App (4th) 150847

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745 ILCS 49/30

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5 Criteria for Exemption from Civil Liability

3. The services are performed in good faith

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745 ILCS 49/30(a)

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5 Criteria for Exemption from Civil Liability

4. The clinic is limited to care that does not require the services of a licensed hospital or ambulatory surgical treatment center 

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    • Free clinics cannot provide an overnight stay in a healthcare facility

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745 ILCS 49/30(a),(b)

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5 Criteria for Exemption from Civil Liability

5. Licensed medical professionals must not engage in misconduct that is willful and wanton

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    • Misconduct must not be intentional or
    • With reckless disregard, i.e., failure to exercise ordinary care after gaining knowledge of impending medical risk

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745 ILCS 49/30(a)

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Extended Civil Liability Immunity

Immunity from civil damages applies to:

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    • physicians, retired physicians, hospitals, and other health care providers that provide further medical treatment, diagnosis, or advice, including but not limited to:

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        • hospitalization, office visits, and home visits, to a patient upon referral from an established free medical clinic without fee or compensation

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745 ILCS 49/30(d)

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Review of IL Good Samaritan Act

Medical professionals licensed under the Medical Practice Act of 1987, or licensed to practice in another state, receive immunity from civil liability under the Illinois Good Samaritans Act if the following criteria is met:

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    • Provides good faith medical treatment, diagnosis, or advice
    • that is not within the scope of employment   
    • at a qualified free clinic
    • without fee from the free clinic (emphasis added)
    • or treat, advise or diagnose a patient on referral from a free medical clinic without fee or compensation
    • so long as the licensed professional does not engage in misconduct that is willful and wanton 

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Other States – Good Samaritan Act

All 50 states and the District of Columbia have enacted at least some form of Good Samaritan legislation

Some states have a single statute, while others address the issue through several different statutes

See below links for a state-by-state overview:

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Medical Negligence

  • Overview of the elements of a cause of action for medical negligence
  • Plaintiff must plead and prove that all elements of negligence have been met:

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      • Duty
      • Breach of Duty
      • Causation
      • Damages

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  • The damages must be “reasonably foreseeable” which is a question for the fact finder.

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Theories of Negligence:

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    • Delay in Diagnosis
    • Failure to Diagnose
    • Delay in Treatment
    • Negligent protocols
    • Failure to follow protocols
    • Failure to follow up on diagnostic tests

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Documentation is Your Best Defense

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“The medical record is a witness

that never lies and never dies.”

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Lawsuits

The first thing that the patient’s (plaintiff’s ) lawyer will look at is the medical record.

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1. Is it complete?

2. Is it clear?

3. Are there discrepancies?

4. Are there late or no entries?

5. Significant gaps in time?

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Documentation: Do’s

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  • Ensure the record is complete and accurate (i.e. spelled correctly, timely, no blanks or gaps)
  • Anything handwritten should be legible
  • Anything typed should be clear without misspellings
  • Use standard abbreviations – if in doubt, write it out
  • Complete check lists
  • Follow standing orders or protocols, if not, explain

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Documentation: Do’s

  • Document significant conversations and thought processes.
  • Carry through on plans or explain why not
  • Document patient’s or legal representative’s consent to the plan and understanding of it
  • Address communication barriers and literacy
  • Document the use of a translator

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Documentation: Don’ts

  • Do not point fingers
  • Do not complain about other providers
  • No administrative complaints
  • No flippant statements
  • Do not alter or obliterate the record
  • Do not lie or misrepresent facts
  • Do not keep separate or personal notes

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Documentation of Late Entries

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Late entries are USUALLY appropriate

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    • Label as “late entry” or an addendum
    • Remember, times are recorded in the EHR, if not, make sure the entry is labelled as a late entry
    • Audit trails are frequently requested in litigation
    • Avoid self-serving entries

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Documentation of Informed Consent

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  • Confirm proper person for consent
  • Document key aspects of the conversation including questions asked and answered.

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  • If a lengthy conversation was held include the amount of time spent with the patient and/or family

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  • Explain risks, benefits and alternatives

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  • If a translator was used, document the method of communication, language used or other communication barrier (such as sign language) and the identity of the translator. If the patient’s preferred language is Spanish, use Spanish forms and be consistent.

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Documentation is Your Best Defense

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When an incident/event occurs:

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      • Chart what was done to take care of the patient

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      • Do not chart that you completed an Incident Report

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      • Do not chart that you called Risk Management

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      • Do not keep personal notes or take records out of the building

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Incident Reports

  • Is there an incident or event reporting process?
  • Who reviews the reports? They should be part of the quality and performance improvement process
  • These are not part of the medical record and are analyzed for trends
  • Should include facts only:
      • Avoid excessive narrative
      • Avoid speculation, opinion, casting aspersions
      • Should NOT be filed in personnel files
      • Should NOT be included in medical records
      • Should be marked as confidential

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Risk Management Tips

  • Establish the scope of services being provided by the clinic
  • Ensure role of supervising physician or advanced practice provider is clear
  • Ensure services provided are within the scope of practice of the staff including relevant education, training and experience
  • Establish in-service training for staff on:
    • Patient privacy, confidentiality, HIPAA
    • Infection control practices and use of PPE
    • Handling emergencies and use of emergency equipment, if available
    • Maintenance of equipment (example: AED)

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More Risk Management Tips

  • Understand the scope of practice of advanced practice providers
  • Ensure effective collaboration and consultation, as necessary
  • Specify those procedures that require a physician’s presence
  • Establish and follow practice protocols, guidelines and orders
  • Ensure current CLIA waiver if performing waived testing
  • Specify sensitive procedures that require a chaperone
  • Schedule periodic medical record reviews and case discussions

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Even More Risk Management Tips

  • Develop policies and procedures
    • Dispensing and recording use of sample medications, if any
    • Follow up on lab test results
    • Follow up on recommended tests such as mammography and colonoscopy
    • Chain of command
    • Available referral sources
    • Handling of emergencies medical or otherwise
    • Arrival of ICE
    • Discrimination and harassment
    • Workplace violence

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Questions and Discussion

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Thank you!

Aileen Brooks, JD, RN

Malecki Brooks Ford Law Group, LLC

205 E. Butterfield Road, Suite 225

Elmhurst, IL 60126

773-664-3303

abrooks@mbhealthlaw.com

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