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State Supreme Court ruling may lead to changes in law, some experts say Sunday, Jan 21, 2007 By John Lyon Arkansas News Bureau LITTLE ROCK - A state Supreme Court ruling on the issue of charitable immunity for hospitals could lead to changes in state law, some legal experts say. Last week, the high court affirmed a Pulaski County Circuit Court ruling that a former patient of St. Joseph's Mercy Health Center in Hot Springs could not sue the hospital for medical negligence because nonprofit hospitals are immune from lawsuits under the doctrine of charitable immunity. In a dissenting opinion, Justice Robert Brown lamented that the ruling left the plaintiff with no remedy because the hospital did not have a traditional insurance carrier that could be sued. The hospital participated in an insurance pool which, the court ruled, could not be sued because it did not meet the definition of an insurance carrier as defined by the statute that allows insurance carriers to be sued instead of hospitals. Both the majority opinion written by Chief Justice Jim Hannah and Brown's dissenting opinion urged the Legislature to reconsider the issue of charitable immunity for hospitals. "The Supreme Court has certainly called the Legislature's attention to a serious problem of fairness," said Rob Leflar, a law professor at the University of Arkansas. "They've put the issue in the Legislature's court." Leflar said Arkansas is one of only a handful of states that still grant immunity to hospitals. "The charitable immunity doctrine developed in the 19th and early 20th centuries because of the fear that charitable hospitals with limited resources might be destroyed by a single negligence suit," he said. "Another concern was that court rulings permitting damage payments to injured patients out of hospital funds might dampen the generosity of contributors to the hospital. Perhaps in the background was lurking the idea that people getting free care shouldn't be so ungrateful as to sue if they were injured," Leflar said. However, today's hospitals are different from the hospitals of a century ago. "They are large organizations that are run on the same businesslike basis as other hospitals," Leflar said. "They can all obtain insurance to cover liability for injury." Fort Smith lawyer Chip Sexton, who has represented plaintiffs in medical malpractice cases, said some hospitals "have hidden behind charitable immunity" despite operating like for-profit businesses, including suing to collect on unpaid bills. Sexton said Friday he was still reviewing Thursday's Supreme Court decision, but he agreed with the justices that "the Legislature needs to look at this." Fort Smith lawyer Alan Wooten, who has represented hospitals in malpractice cases, said hospitals are charitable institutions. "If you come for treatment, they treat you. They treat you whether you can pay or not. That doesn't mean they don't try to collect if you have the ability to pay," he said. Wooten said he believed the issue raised in the Supreme Court ruling was whether an insurance pool should be treated like a traditional insurance carrier in regard to civil suits. He said he was surprised by the ruling that St. Joseph's insurance pool could not be sued. "I certainly did not think that was the law until I read that opinion," Wooten said. Little Rock attorney Jim Harris, who has represented hospitals in connection with nonprofit matters but is not a tort lawyer, said he does not expect the Legislature to make any changes to the charitable immunity doctrine because of the ruling. It is rare for a hospital not to have an insurance carrier, he said. Sean Keith, a medical malpractice lawyer from Rogers, said the situation may become more common. If St. Joseph's was able to avoid liability by choosing not to have a traditional insurance carrier, "why wouldn't every hospital set it up that way?" he asked. State Sen. Jim Argue, D-Little Rock, is president of a nonprofit organization, the United Methodist Foundation, and serves on the board of St. Vincent Medical Center in Little Rock. He said there is a difference between a hospital and, for example, a humane society that enlists volunteers to care for abandoned animals. "The truth is, even though they (St. Vincent) are structured as a nonprofit, they can't give away services and continue to serve the community," Argue said. He said the Legislature may need to draw a line between hospitals and other nonprofit organizations, but doing so would be a difficult task. Gov. Mike Beebe, an attorney and a former lawmaker and state attorney general, said the concept of charitable immunity predates Arkansas. It is found in common law, the ruling of English jurists that goes back centuries, and is not something to be changed lightly, he said. "I plan to read both Justice Brown's dissent and the majority opinion carefully," Beebe said. ------- Reporter Doug Thompson of the Arkansas News Bureau contributed to this report. |
