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By Dan Schulte, J.D.
MDA Legal Counsel
From the July 2008 issue of the Journal

Question: I retired from active practice last year and obtained a special volunteer license to practice dentistry. I now donate my services to free dental clinics. I stopped paying for malpractice insurance because I heard I could no longer be sued for malpractice.  Should I be practicing without malpractice insurance?

Answer: You should strongly consider purchasing a minimum amount of malpractice insurance to cover the services that you are providing.  The Special Volunteer License Statute was enacted in 2006 (MCL 333.16184). This statute provides a special volunteer license category for M.D.s, D.O.s, podiatrists and dentists who want to donate their services following retirement. 

In order to be eligible for a special volunteer license you must first retire from the active practice of dentistry. The statute requires that your active practice license actually expire and that you have the intention of ceasing to engage in the practice of dentistry for compensation. You will be asked on the application for a special volunteer license to verify that you were previously licensed in good standing and to acknowledge that you will not seek compensation nor do you expect compensation for any of the services you provide under the special volunteer license. If you have been out of active practice for more than three years, you will be required to document that during the three-year period immediately preceding the date of your application that you have attended at least two-thirds of the normally required continuing education. Licensure fees are waived.

MCL 333.16185 provides "a physician" immunity against malpractice claims of "the physician" pursuant to a special volunteer license if (1) The care was provided at a health facility or agency that provides at least 75 percent of its care annually to medically indigent individuals (i.e. generally, patients receiving state or federal financial assistance); and (2) "The physician" does not receive and does not intend to receive compensation for providing the care. This immunity will not apply if the malpractice amounts to gross negligence (i.e., conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results). 

There are several reasons why dentists practicing under a special volunteer license should continue to carry malpractice insurance.  First, if you volunteer your time at a dental clinic you may have no way of verifying that the clinic provides 75 percent of its care annually to medically indigent individuals. If it turns out that your clinic does not, the immunity from malpractice liability will not apply. 

Second, there is no immunity against acts of gross negligence or claims of acts of gross negligence. Should you be sued and the complaint include a count alleging gross negligence the immunity will not apply and you will be faced with funding the defense of the gross negligence count and any settlement or verdict resulting from that count. 

Third, the immunity statute uses the words "a physician" repeatedly, unlike MCL 333.16184 which specifically includes podiatrists and dentists and refers to dental care. The immunity statute has not yet been tested in court. It is certainly possible that an aggrieved dental patient may make the argument that the Legislature in enacting the immunity statute intended that it only apply to M.D.s and D.O.s.  This argument would be bolstered by the fact that in an earlier part of the Public Health Code (MCL 333.9701(h)) physician is defined to include only licensed M.D.s and D.O.s. Unless the immunity statute is amended to have language consistent with the volunteer licensing licensee statute the possibility exists that it may be construed by a court not to apply to dentists and dental services.

For all these reasons, I believe it would be wise to maintain malpractice insurance despite the fact that you are retired and providing services only pursuant to a special volunteer license.

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