Are uncompensated volunteer physicians and clinic staff at a SUNY medical school entitled to State defense and indemnification under Public Officers Law § 17?

Plain-English summary

The SUNY Health Science Center at Syracuse ran a Clinical Campus in Binghamton that brought retired clinical faculty back as uncompensated volunteers to provide free primary care to uninsured patients and clinical instruction to medical students. Other volunteers (nurses, a nurse practitioner, LPNs, a nutritionist, social workers, a pharmacist) staffed the program. SUNY's General Counsel asked whether the State was on the hook to defend and indemnify these volunteers if they were sued.

The AG concluded yes, under Public Officers Law § 17.

Section 17 defines "employee" to include any person holding a position by election, appointment, or employment in State service, "or a volunteer expressly authorized to participate in a state-sponsored volunteer program." Two questions followed: Was the SUNY clinical program a "state-sponsored volunteer program," and were these participants "expressly authorized"?

The AG said yes on both. Education Law § 355(7) requires SUNY medical curricula to include courses of study under qualified family practitioners plus a family-care program of study and clinical experience. The Binghamton clinical campus was formally approved by the President of the Health Science Center and was part of the institution's stated mission of patient care and professional education. The volunteers were formally selected through uncompensated faculty appointments (for physicians) and appropriate registration, licensing, and training (for other staff). Two prior AG opinions had recognized programs with this kind of formality as state-sponsored within the meaning of § 17.

One carve-out: § 17(11) excludes physicians subject to SUNY's clinical practice management plan from coverage in any professional malpractice action. The carve-out did not apply here because the clinical program was free to patients and free to any third-party payor, so no clinical practice income was generated.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Does the State defend and indemnify volunteers of state agencies?

Public Officers Law § 17 covers volunteers only if they are "expressly authorized to participate in a state-sponsored volunteer program." The opinion treated three things as the markers of a "state-sponsored" program: formal approval by the responsible state agency or institution, alignment with the agency's statutory mission, and a documented selection or registration process for each volunteer. A casual or ad hoc arrangement would not have qualified.

What does "expressly authorized" require?

Documentation that a specific individual has been approved to participate. In the SUNY context, physicians received uncompensated faculty appointments and other volunteers went through licensing and registration. The opinion did not spell out a minimum paperwork standard, but it pointed to formal selection as the key.

Why was the malpractice carve-out in § 17(11) not a problem?

Section 17(11) shields the State from defending physicians who participate in SUNY's clinical practice management plan against professional malpractice claims, because the plan generates billing revenue that is supposed to fund private malpractice coverage. The Binghamton clinical program charged neither patients nor third-party payors. No revenue meant the carve-out did not apply.

Did the opinion answer how the indemnification would be funded?

No. It addressed only whether the statutory authorization existed. Procedural requirements of § 17 still had to be met in any actual claim, including timely notice to the Attorney General and cooperation with the defense.

Does this opinion apply to other unpaid faculty programs at SUNY?

The opinion was specific to the Binghamton clinical program. The reasoning suggests other SUNY-approved uncompensated programs may qualify if they satisfy the same three markers (institutional approval, mission alignment, formal selection of participants). Analogous programs would still need their own analysis.

Background and statutory framework

Public Officers Law § 17 is the general statute providing State defense and indemnification for State employees in civil actions arising out of acts within the scope of public employment. The 1989 amendments added "or a volunteer expressly authorized to participate in a state-sponsored volunteer program" to the definition of "employee," reflecting a legislative judgment that the State should stand behind people working for it without pay, in the same way it stands behind paid staff.

Education Law § 355(7) is part of the SUNY governance framework. It requires the SUNY board of trustees to maintain professional medical education that includes supervised clinical study with qualified family practitioners and a structured family-care program. The 1997 opinion treated § 355(7) as the statutory mandate that made the clinical campus a legitimate exercise of SUNY's mission, supporting the conclusion that the volunteer program was state-sponsored.

The two prior AG opinions cited (1978 Op Atty Gen (Inf) 73 and Op Atty Gen No. 92-F7) had reached similar conclusions for other state-sponsored volunteer arrangements. The 1997 opinion did not announce a new rule; it applied the existing framework to a new clinical setting.

Citations

• Education Law § 355(7) (SUNY professional education curriculum requirements).
• Public Officers Law § 17 (State defense and indemnification of employees and authorized volunteers).
• Public Officers Law § 17(11) (carve-out for physicians in SUNY clinical practice management plan).
• 1978 Op Atty Gen (Inf) 73 (prior recognition of state-sponsored volunteer program).
• Op Atty Gen No. 92-F7 (prior recognition of state-sponsored volunteer program).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/97-F3_pw.pdf

Original opinion text

EDUCATION LAW § 355(7); PUBLIC OFFICERS LAW § 17. The physicians and other health care personnel volunteering at the request of the State University of New York Health Science Center at Syracuse in the clinical program at Binghamton are entitled to defense and indemnification by the State on the terms and conditions of Public Officers Law § 17 in any civil action or proceeding arising out of any alleged act or omission which occurs or is alleged in the complaint to occur when they perform the volunteer services.

March 11, 1997

Christine A. Alexander, Esq.
Formal Opinion
Managing Senior Associate Counsel
No. 97-F3
Of the Office of University Counsel
and Vice Chancellor of Legal Affairs
State University of New York
State University Plaza
Albany, New York 12246
Dear Ms. Alexander:
You have asked whether certain physicians and other health care personnel who are volunteers at the Clinical Campus in Binghamton of the State University of New York Health Science Center in Syracuse are entitled to defense and indemnification by the State under section 17 of the Public Officers Law. You have explained that under a clinical program approved by the President of the Health Science Center physicians retired from the clinical campus faculty will receive an uncompensated faculty appointment under which they will treat patients at the Health Science Center free of charge and provide clinical instruction to medical students. Consistent with the community service and educational components of the mission of the Health Science Center and clinical campus, the physicians will provide basic primary care medical services to uninsured patients and clinical instruction to medical students selecting this setting as an elective. Additionally, other volunteer health care providers will be involved in the provision of this free medical care to the uninsured. They may include volunteer nurses, a nurse practitioner, nursing assistants or LPNs, a nutritionist, medical social workers, a pharmacist and others. You indicate that each volunteer will be duly registered in this program and specifically authorized to participate in the volunteer program. Section 17 of the Public Officers Law provides defense and indemnification to an "employee" of the State which for purposes of this provision includes any person holding a position by

2

election, appointment or employment in the service of the State "or a volunteer expressly authorized to participate in a state-sponsored volunteer program"1. In our view, the physicians and other health care personnel participating in this clinical program are employees within the meaning of section 17 of the Public Officers Law and, therefore, are eligible to receive defense and indemnification by the State provided that the terms and conditions of the statute are met. They will be participating in a State-sponsored volunteer program. Clinical instruction is required by law and the volunteer program has formally been established. Courses of study under the supervision of qualified family practitioners, a family care program of study and clinical experience are required in the curriculum of each State-operated institution in the State University for professional education in medicine. Education Law
§ 355(7). You have indicated that the volunteer program has formally been approved by the President of the Health Science Center and is consistent with the mission of the Clinical Campus at Binghamton. The "mission statement" of the State University of New York Health Science Center at Syracuse includes education of professionals in health care. Excellence in patient care and the generation of new knowledge are central to this mission. "To this end, Health Science Center clinical faculty members and health care professionals commit themselves not only to their educational activities but also to patient care." Academic Course Catalog 1996-1998, College of Medicine, SUNY Health Science Center at Syracuse. The clinical campus at Binghamton offers clinical education programs for third and fourth year medical students. Id. "The community orientation of the program fosters close working relationships with the practicing physicians and other community health professionals. Through emphasis on the patient caring function, the curriculum provides enriching clinical experiences in primary care and ambulatory settings." Id., Clinical Campus Overview. At the Binghamton Clinical Campus, "prominent experiences include a Primary Care Program designed to integrate the study of social, behavioral,

1

We note that under section 17(11) the provisions of the section do not apply to physicians who are subject to the plan for the management of clinical practice income set forth in the policies of the SUNY board of trustees regarding any civil action or proceeding alleging professional malpractice. You have indicated, however, that this exception does not apply to the subject physicians because there is no charge to the patients or to any third-party payor for the medical services provided under this clinical program.

3

and management sciences with real patient experiences, mostly in an ambulatory setting. The Primary Care Program provides the keystone for the primary care focus of the Clinical Campus." Id. Also, the physicians formally will be selected to participate in the volunteer program through uncompensated faculty appointments. The other health care professionals formally will be selected to participate in the volunteer program after appropriate registration, licensing and training. Thus, the volunteer program has been established with formality and, therefore, meets the requirement of section 17 that it constitute a State-sponsored volunteer program. See, 1978 Op Atty Gen (Inf) 73; Op Atty Gen No. 92-F7. We conclude that the physicians and other health care personnel volunteering at the request of the State University of New York Health Science Center at Syracuse in the clinical program at Binghamton are entitled to defense and indemnification by the State on the terms and conditions of Public Officers Law
§ 17 in any civil action or proceeding arising out of any alleged act or omission which occurs or is alleged in the complaint to occur when they perform the volunteer services. Very truly yours,

DENNIS C. VACCO
Attorney General