Your local hospital has asked for nursing volunteers to conduct a blood pressure screening at its annual health fair. You would really like to participate because you recognize the value of this service to the community and you enjoy meeting and talking with new people.

If you agree, though, you are not sure what liability exposure you might incur because of this volunteer activity. It seems that every time you open a newspaper, there is yet another story about some health care worker or hospital being sued for malpractice. You have heard of some states having Good Samaritan laws, but are not sure if your state has passed such a law, or if it would even apply to this type of volunteerism.

Volunteerism in America
Volunteers are recognized as an often unsung sector of the American economy. Various services such as libraries, school boards, scout troops and little league teams, not to mention the communities that depend upon the myriad of health care professionals that contribute their professional services, depend upon volunteers. Our society needs volunteer services because many services are provided at a reduced cost or free of charge to beneficiaries. In turn, volunteers also experience personal gain because they derive psychological and emotional benefit from helping others.

In America, a sort of partnership exists between governments and nonprofit corporations because of shared missions-volunteer groups under government grants or contracts often carry out legislatively mandated programs. These volunteer organizations fill gaps and meet needs for programs and individual sectors of society for which no broad base of support exists.

However, no matter how altruistic the intentions of nonprofit organizations and their volunteers, their actions may inadvertently cause harm to others, which raises the issue of liability exposure. The reality is that few nonprofit organizations, and even fewer volunteers, get sued. A 1988 Gallup poll concluded that while there is a great deal of concern for the risk of liability, only one in 20 organizations report being sued. Insurance claims filed against nonprofit organizations are below average and claims against volunteers are rare.

Nonetheless, as with many things in life, perception clouds reality. In the recent past, due to a few highly publicized tort actions against volunteers, volunteer organizations were being faced with increasing insurance premiums and decreasing coverage. Alarmed by the perceived prospect of losing volunteer services, many states, and Congress, passed legislation designed to shield volunteers and their organizations from liability for their own negligence.

Before examining the legislative responses to volunteer liability, a look at the legal source of such liability would be helpful.

Respondeat Superior as the Source of Volunteer Liability
Tort or negligence law imposes a minimum level of due care on all persons in their interactions with others, including people who choose to volunteer. Negligence is generally considered to be doing something that a person of ordinary prudence would not have done under similar circumstances.

The basis for this standard is the notion of expectations; each individual is expected to act as a reasonable person would act under the same circumstances. Negligence then is departing from the conduct expected of a reasonably prudent person under like circumstances. It is characterized chiefly by inadvertence, thoughtlessness and inattention. It does not mean conduct that is wanton, willful or reckless.

The requirements for a successful suit in negligence include: 1) a duty requiring a person to conform to a standard of conduct that protects others from unreasonable risk of harm; 2) a breach of that duty (i.e., the person's failure to conform to the standard of conduct); 3) a causal connection between the breach of the duty and the resulting injury; and 4) a resulting injury or damage which results in measurable physical, emotional or economic harm.

In summary, each of us is legally responsible for our own conduct. In volunteering, a volunteer's conduct can also make liable the nonprofit organization for which the volunteer is performing the volunteer service. Although volunteers are not generally compensated by nonprofit organizations for their volunteer services, (and therefore not considered to be employees of the organization), the fact that the volunteer is rendering services under the direction or control of that organization may make it liable under the legal theory of respondeat superior.

Respondeat superior is a long established doctrine that applies when a "master" acts through the "servant" to accomplish the master's task. The actions of the servant are imputed to the master. If the servant acts negligently, the servant is directly responsible for the negligence, while the master is vicariously liable for the servant's actions.

In our example cited at the beginning of this article, the nurse screening blood pressures would be functioning within his or her scope of practice under applicable state licensure law. The nurse would therefore be held to the professional standards and duty of care of a registered nurse engaged in the practice of assessing blood pressures. By necessity, this would entail not only accurately performing the task of auscultating the blood pressure, but also of repeating the reading if an abnormally high reading is obtained, and making an appropriate referral for follow-up. The nurse would likely follow protocols provided by the hospital, or possibly use independent professional judgment.

Responses to Tort Actions
As mentioned above, both state legislatures and Congress responded to the perception of increased tort liability exposure for volunteers and their organizations. Because of the patchwork response of the states in limiting liability, Congress, in 1997, passed the Volunteer Protection Act. The Act provides that "no volunteer of a nonprofit organization or governmental entity shall be liable for harm caused by an act or omission of the volunteer on behalf of the organization." Immunity is not absolute; in the event that the harm caused is 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 plaintiff may pursue a claim. Further, the immunity does not apply to injuries caused by the volunteer in the course of operating a motor vehicle, and states may opt out of the protection of this Act if the state legislature determines to do so.

Regarding Good Samaritan laws, while many states passed these laws, the rationale behind them was to promote average citizens responding in emergency situations without the fear of being sued. Therefore, such laws apply only in emergencies when bystanders offer assistance.

Determine Your Liability Risk
So, where does this leave our nurse volunteer? Well, before the nurse undertakes the volunteer activity the following steps will reduce the liability risk:

• Determine whether the hospital has an insurance policy which covers the activities of the blood pressure screening,

• If the nurse has individual liability insurance, read the insurance policy or contact the insurer for coverage clarification,

• Go on the Internet and determine if the state legislature has passed any volunteer protection laws, or call the state's board of nursing,

• Determine what protocols, if any, the hospital recommends following in conducting the screening, and

• Function within the parameters of your state licensure laws.

Conclusion
The overall exposure for liability associated with volunteer activity is low. Taking some practical precautions goes a long way in reducing risk. The benefits of volunteering to you and to those served generally outweigh the threat of being sued.

Renee Martin is an attorney and associate in the Health Care Group of Reed Smith Shaw & McClay, Philadelphia, and serves on the editorial advisory board for ADVANCE.