EVMS-affiliated group denied immunity from malpractice suits

By Elizabeth Simpson, The Virginian-Pilot – 11/1/2008

Doctors with a nonprofit group affiliated with Eastern Virginia Medical School are not immune from malpractice suits, according to an order handed down by the Virginia Supreme Court on Friday.

The case involved EVMS Academic Physicians and Surgeons Health Services Foundation, which was claiming charitable immunity for its physicians facing malpractice suits.

The court said the bulk of the foundation’s work is not charitable and therefore the physicians were not immune from malpractice suits.

The EVMS Health Services Foundation includes about 160 doctors who provide clinical treatment for patients throughout the area in conjunction with the school’s educational role. The charitable work provided was that given to indigent patients unable to pay medical bills.

A similar case went before the Virginia Supreme Court earlier this year involving a group of doctors affiliated with the University of Virginia in Charlottesville. The court ruled against immunity in that case in February, and cited that case in Friday’s order.

The court said the EVMS physicians’ foundation is similar in nature to the one at U.Va. The amount of charity work by EVMS Health Services Foundation is small compared to its income, according to the order. It also receives some funding from the state to care for indigent patients.

L. Steven Emmert, an appellate lawyer who argued before the Supreme Court in favor of one of the patients in the University of Virginia case, said he expected the EVMS case to follow the path of the U.Va. case.

Carl Tobias, a professor at the University of Richmond School of Law, said large physician foundations that aren’t purely charitable would have a tough time proving they fall under the doctrine of immunity in today’s legal and medical world.

“Charitable immunity is very much on the wane,” Tobias said.

Officials from EVMS declined to comment.

Elizabeth Simpson, (757) 446-2635, elizabeth.simpson@pilotonline.com