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State Supreme Court urges Legislature to rethink charitable immunity Friday, Jan 19, 2007 By John Lyon Arkansas News Bureau LITTLE ROCK - The state Supreme Court on Thursday rejected a challenge to the doctrine that nonprofit hospitals are immune from civil suits but urged lawmakers to consider abolishing the doctrine. The high court upheld a Hot Spring County Circuit Court ruling that said Mary Sowders, a former patient of St. Joseph's Mercy Health Center in Hot Springs, could not sue the hospital for medical negligence because it is immune from lawsuits as a charitable institution. In the majority opinion written by Chief Justice Jim Hannah, the court called on the General Assembly "to consider whether the charitable immunity doctrine should be abolished." In a dissenting opinion, Justice Robert Brown also urged lawmakers to rethink the issue, noting that Thursday's ruling left Sowders without a remedy since the hospital does not have an insurance carrier she can sue. "This appears unfair and unjust to me," Brown wrote. St. Joseph's employees were transporting Sowders from the hospital by wheelchair to a waiting car on Jan. 18, 2002, after she underwent an outpatient procedure, when she received an injury that she contended was the hospital's fault. In her lawsuit, Sowders accused the hospital of medical negligence in discharging her prematurely after the procedure and failing to transport her safely. Instead of traditional liability insurance, St. Joseph's participates in a self-insurance pool administered by the Sisters of Mercy. Sowders named the Sisters of Mercy as defendants in an attempt to collect a judgment from the pool, but Circuit Judge Phillip Shirron ruled that the pool agreement did not constitute liability insurance as defined by statute. Shirron dismissed the Sisters of Mercy as defendants. He also ruled that as a charity, St. Joseph's was immune from civil liability under Arkansas law. Sowders claimed on appeal that Shirron's rulings left her with no remedy. The high court rejected the argument Thursday, saying Sowders could have sued individual hospital employees for negligence. "Because Sowders was free to bring suit against the employees, we cannot say that she has been denied a remedy," Hannah wrote. Brown wrote that hospitals should not be allowed to avoid liability for negligence by declining to carry insurance. "By choosing not to carry traditional liability insurance, St. Joseph's has sidestepped the system and now cannot be held liable for its negligence in any way, either through the payment of increased insurance premiums or through the loss of funds contributed to the liability pool," Brown wrote. If the doctrine of charitable immunity continues to be upheld in Arkansas, then it is only fair to treat insurance pools like traditional liability insurance and consider them subject to civil suits, Brown wrote. Brown said Arkansas is one of the last states to adhere to the doctrine of total immunity for hospitals. |
