Alert
Bloom & Buell's

IN WINTER, PROTECT YOUR IMMUNITY

Anyone who runs a charitable institution such as a school or a hospital can be forgiven for feeling that even if worst comes to worse, that if, God forbid, the institution were to be sued, the most that can be taken is $20,000.  That, in Massachusetts, is what is known as the charitable immunity cap on liability.

But it turns out that there can be times when a judge can lift that immunity and a charitable institution can find itself staring down the barrel of a devastating jury award.

The answer to the question of when charitable immunity may be lifted and when it is inviolable is a resounding "It depends."

Two cases decided recently show under what circumstances an institution may lose its immunity and when it may keep it even if at first blush it looks as if the exception would apply.

The first case, decided by a Superior Court judge sitting in Norfolk County removes the charitable immunity cap from Brigham and Women's Hospital because, in short, they lost the medical records of the first 20 hours of treatment of a newborn boy who, it turned out later, had contracted meningitis during the first day of his life and who is now retarded because of it.

Judge Thomas E. Connolly noted in his 20-page memorandum of decision that the boy's parents were having great difficulties pursuing their claim of medical malpractice because without medical records it was almost impossible to prove negligence.

Curiously, Connolly denied their request to enter a default judgment, which would have him, in effect, punish Brigham and Women's with a liability judgment for being so careless about the records.

Instead, Connolly chose to punish Brigham and Women's by taking away their charitable immunity.

That decision, as noted, came from a Superior Court judge and may yet be successfully appealed.  It is too early to say whether Connolly's ruling will pass the Appeals Court's scrutiny to become the law of the Commonwealth.

The second case, decided by the Massachusetts Appeals Courts, deals with a Catholic High School which would have lost its charitable immunity if the trial judge's ruling had been allowed  to stand.  But the Appeals Court overruled the judge, saying he was wrong to hold that a school dance during which a student was stabbed was a commercial activity and thus exempt from the immunity cap.

In this case, a student and his parents sued Cardinal Cushing High School, claiming the school had been negligent for letting a dance go ahead without a police officer on detail who could have prevented the ensuing melee in which their son was stabbed.

A jury agreed and awarded them $70,500 in damages.  But when the school's attorney argued that the school need only pay the $20,000 to which the law limits awards against charitable institutions, Judge Gordon L. Doerfer, Jr. disagreed.  He noted that the school had arranged the dance as a fund raiser and thus the dance was not an "activity carried on to accomplish directly the charitable purposes" of Cardinal Cushing High.  It was, the judge ruled, the kind of commercial activity that is not covered by the charitable immunity cap.

The Appeals Court disagreed, saying in effect that the little income the school got from the dance was intended to finance the student council, hardly a commercial activity, and well within the scope of its charitable purpose.

So, are you covered by charitable immunity? It depends.