Petition for Writ of Certiorari — English v. New England Medical Center Hospital, Inc.

Supreme Court brief1990

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89-825 ©

18 9

— oct 18 we

{ JOSEPH F. SPANIOL, JR,

SUPREME COURT OF THE UNITED BTATES Cterx ,

i pet

OCTOBER TERM, 1989

JOSEPH E. ENGLISH AND ELIZABETH ENGLISH

INDIVIDUALLY AND AS GUARDIANS OF

KERRIE ANN ENGLISH

Petitioners

NEW ENGLAND MEDICAL CENTER HOSPITAL, INC

Respondent

Petition for a Writ of Certiorari to the

Supreme Judicial Court for the Commonwealt

of Massachusetts.

CHARLES S. MANCUSO

KEVIN G. MCINTYRE

LAW OFFICES OF

CHARLES S. MANCUSO

265 Washington Street

Westwood, MA 02090

(617) 329-3339

Attorneys for Petitioners

QUESTIONS PRESENTED

Whether the arbitrary cap on damages

imposed by M.G.L.c. 231, Section 85K

violates the Fourteenth Amendment of the

United States Constitution by depriving

victims of charitable tortfeasors of equal

protection of the laws.

Ir.

Whether the arbitrary cap on damages

imposed by M.G.L.c. 231, Section 85K

violates the Fourteenth Amendment of the

United States Constitution by deprivihg

victims of charitable tortfeasors of Wife

process of law. |

STATEMENT UNDER RULE 28.4 (c)

Since the proceeding draws into question

the Constitutionality of M.G.L.c. 231,

Section 85K, a statute enacted by the

Massachusetts state legislature affecting

the public interest and neither the Common-

wealth of Massachusetts nor any officer,

agency, or employee thereof is a party, it

is noted that 28 U.S.C. Section 2403 (b) may

be applicable.

No court of the United States as defined

by 28 U.S.C. Section 451 has, pursuant to 28

U.S.C. Section 2403 (b), certified to the

Attorney General of the Commonwealth of .

Massachusetts the fact that the

Constitutionality of such statute has been

drawn in question.

Table of Contents

Page

Questions Presented ......+.+.-.i

Statement Under Rule 28.4(c). .. . .ii

Opinion Below .......+.+.++ +2

NN ee ee

Beeewee mnvelved . . 2. sw ew te ee ee 8

Statement of the Case ........ 5

Reasons For Granting Writ ....../?

A. There is a Conflict Among

State and Federal Jurisdictions

Concerning the Limitation of

Awards For Personal Injuries and

the Issue of Damage Caps Presents

an Important Federal Question... 7

B. M.G.L.c. 231, Section 85K Deprived

Petitioners of Equal Protection

of the Laws in Violation of The

Fourteenth Amendment to the

United States Constitution. ... .12

1. The Classifications Created

and the Limitation Imposed by

M.G.L.c. 231, Section 85K

are Not Rationally Related

to a Legitimate Public

Purpose. .... Bs es « « 0d

2. The Classifications Created

and the Limitation Imposed by

M.G.L.c. 231, Section 85K

are Arbitrary, Unreasonable

and Not Fairly and Substantially

Related to the Object of

NE ee ee 2

iii

C. M.G.L.c. 231, Section 85K Deprived

Petitioners of Due Process of

Laws in Violation of The

Fourteenth Amendment to the

United States Constitution ... .37

D. The Decisions of the Massachusetts

Supreme Judicial Court is Based Upon

Federal Law and is Not Supported

by an Adequate and Independent State

GEOUNG. 2 ose htt lk eek See

CORGEWSSOR « 6 + 6 we et 6 ee ee

TABLE OF AUTHORITIES CITED.

Cases. Page

Adkins v. St. Francis Hospital of Charles-~

ton, 149 W.Va. 705, 143 S.E. 2d 154,

eo Eh 6 | 6 6 6 « 6 8 6 8 0 BW

Albritton v. Neighborhood Center for Child

Development, 12 Ohio St. 3d 210, 213,

416 N.E. 2d 867, 871 (1984) . . .33, 36

American Manufacturers Mutual Insurance Co.

v. Commissioner of Insurance, 374 Mass.

181, 372 N.E. 2d 520 (1978) .... .44

Arneson v. Olson, 270 N.W. 2d 125 (N.D.

wie ss. « 6 « « BS Ale BO. 42

Baptist Hospital of S.E. Texas v. Barber,

G72 S.8. 296 (1984) ..... 8 11, 30

Bing v. Thunig, 2 N.Y. 2d 656, 143 N.E. 2d 3

faperpe 6 © « a il = ee ie eee

Blue Hills Cemetary v. Board of Registration

in Enbalming and Funeral Directing, 379

Mass. 368, 398 N.E. 2d 471 (1979) . .44

Brune v. Belinkoff, 354 Mass. 102, 235 N.E.

2d 793 (1968) .... Qe te eee

v. Newark Eye and Ear Infirmary, 27

B.3. 29, 141 A. 2€ 276 (1958) ... .18

4 120 N.H. 925, 424 A. 2d

825 (1980). .... » « 8 11, 30, 32

Corp. v. _Sinclairs 264 U.S. 543

|) |) ae . swe

Cleveland Board of Education v. LaFleur, 414

U.S. 632 (1973) . 2 2 ww ww ww ot 0 3B

Craig v. Boren, 429 U.S. 190 (1976) . . .13

Dickerson v. Attorney General, 396 Mass.

740, 488 N.E. 2d 757 (1985) .... .44

Duke Power Co. v. Carolina Environmental

Study Group, 438 U.S. 59 (1978)

Duren v. Suburban Community Hospital, 24

Ohio Misc. 2d _ 482 N.E. 2d 1358 (C.P.

7) ee . . 9, 30

Eisenstadt vy. Baird, 405 U.S. 438 (1972).14

El Paso v. Simmons, 379 U.S. 479, 508-9

epeehe 6 8 6 6 6 6 8 66 6 6 ee eee

English v. New England Medical Center

Hospital, 405 Mass. 423, 541 N.E. 2d 329

nee. EPER)s « 0 c« «6 Be Ste Gee aus

Enterprise Irrigation District v. Farmers

Mutual Canal Eom pan Ys 243 U.S. 157

(19L7d. 2 8 » « 6. 246

Exxon corporation v Vv. Eagerton , 462 U.S. 176

(1983). . . . . . . . .13

Fein v. Permanente Medical Group, 474 U.S.

SSa CAswere 2 co ow 0 te te ee eee oes Oe

Fein v. Permanente Medical Group, 38 Cal. 3d

137, 211 Cal. Rptr. 368, 695 P. 2d 665

(1985) appeal dismissed, 474 U.S. 892

(1985). . . . . . . . . . “

fine v_ Contributory Retixesent_ Azoga,

Board, 401 Mass. 639, 518 N.E. 2d 1151

(1988) . . - . . . . . . . . . . .44, 45

n “

Meee ie

Flagiello v. Pennsylvania Hospital, 41? Pa.

486, 208 A. 2d 193, 197 (1965)... . 35

Frontiero v. Richardson, 211 U.S. 67?

(1973). ; : 4

Granger v. Deaconess Hospital of Grand

Forks, 138 N.W. 2d 443, 449 (N.D

ss bos 6 aes © 6 «© © 6 6 6 8 6 ke

| Hayes v. Missouri, 120 U.S. 68 (1887) . .29

; Hunter v. North Mason High School, 85 Wash

2d 810, 539 P. 2d 845 (1975) 3

} James v. Strange, 407 U.S. 128 (1972) . .14

Ind. 374, 404 N.E.

Johnson v. Saint Vincent H

Jones v. State Board

859, 555 P. 2d 3

PO a A A ec

Klein v. Catalano, 386 Mass. 701, 437 N.E.

Oe Bae CAPeCeP 2 cw cw tw tw ew ew wt 8k 8 0 KG

Lucas v. United States, 807 F. 2d 414 (1986)

Lucas v. United States, 757 S.W. 2d 68

ns - s «6 © «6 6¢ 8 8 8 8 kd

Marbury v. Madison, 1 Cranch 137 (1803)..48

Massachusetts Retirement Board v. Murgia,

427 U.S. 307 (1975) » « hae 43

Mathews v. DeCastro, 429 U.S. 181 (1976)

Michigan v. Long, 463 U.S. 1039 (1983). .46

vii

Mills v. Habluetzel, 456 U.S. 91 (1982)..13

New Orleans v. Dukes, 427 U.S. 279 (1976)

. 7 . . . . . . . . . . . . . . . . .45

Newton v. Consolidated Gas Company, 258

5 ££ eee ress:

New York Central R. v. White, 243 U.S. 188

a oe eee eee ee 6 & 6 & 6m 6 6 oe

Paro v. Longwood Hospital, 373 Mass. 645,

369 N.E. 2d 985 (1977)... .. .44, 45

Pierce v. Yakima Valley Memorial Hospital

Association, 43 Wash. 2d 162, 260 P. 2d

765 (1953) > & « . s « 88, 49

President and Directors of Georgetown

College v. Hughes, 130 F. 2d 810

.Ge Sane © 6 © 6 e 6. eee Eee aes ae

Reed v. Reed, 404 U.S. 71 (1971). . .14, 30

Royster Guano Co. v. Virgintas 253 U.S. 412

mae 6 a> 2 5 =e & tea

San Antonio School gistrict Vv. Rodriquez.

411 U.S. 1 (i973) . « : eo « « 0h6

Stanton v. Stanton, 421 U.S. 7 (1975) . .14

D rtmen f Agr Vv

"413 U.8. S20 CASTS) ss 6 0 6 0 cauertee

Waggoner v. Gibson, 647 F. Supp. 1102

(N.D. Tex. 1986)... .. . .26, 39, 42

Weber v. Aetna Casualty and Surety Co., 406

U.S. 438 (1972) . . . . . . . . . . 14

Vv 420 U.S. 636

(1975) . . . . . . . . . . . . ° . . 14

West Coast Hotel Co. v. Parrish, 300

379 (1937)

Western and Southern Life Insurance Co. v.

State Board of Equalization, 451

648 (1981). ss « © © 8

White v. Montana, 203 Mont. 363, 661

1272 (1983)

Constitution.

United States Constitution

Fourteenth Amendment.

Statutes.

28 U.S.C. 451

28 U.S.C. 1257 (a)

28 U.S.C. 2403 (b)

-L.c. 6A Section 75.

-c. 175 Section 113L

-c. 175A Section 2

om 00 Oo

-L.c. 175A Section 5A.

-c. 231 Section 60B.

a eS a oe oe

-G.L.c. 231 Section 60F.

M.G.L.c. 231 Section 60G.

M.G.L.c. 231 Section 60H.

M.G.L.c. 231 Section 85K.

U.S.

.passim

Miscellaneous.

Erickson, Judicial Review of Medical

Malpractice Legislation, XX Suffolk

U.L. BOW. Gas GCRPCSl « «.s. 4. ole ss oe

Note, The Quality of Mercy: “Charitable

Torts" and Their Continuing Immunity,

100 Harvard L. Rev. 1382 (1987)..28, 32

House Ma. SFeG. «© cs se 6 te Se oe Se eee

Mouse We. SOGL. « « 6 » #648 <2nee- aa

Prosser and Keeton, The Law of Torts,

Sth Bditien, (1964) .. «ss +s « & see

Restatement (Second) of Torts (1979). . .18

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

JOSEPH E. ENGLISH AND ELIZABETH ENGLISH

INDIVIDUALLY AND AS GUARDIANS OF

KERRIE ANN ENGLISH

Petitioners

NEW ENGLAND MEDICAL CENTER HOSPITAL, INC.

_ Respondent

Petition for a Writ of Certiorari to the

Supreme Judicial Court for the Commonwealth

of Massachusetts.

The petitioners, Joseph E. English and

Elizabeth English, individually and as

guardians of Kerrie Ann English pray a Writ

of Certiorari issue to review the judgment

and opinion of the Massachusetts Supreme

Judicial Court entered in the above entitled

proceeding on July 20, 1989.

OPINION BELOW

The opinion of the Massachusetts Supreme

Judicial Court in this case is reported at

405 Mass. 423, 541 N.E. 2d 329 (1989) and is

reproduced in the appendix attached hereto

at pp. la to 7a.

JURISDICTION

The judgment of the Supreme Judicial

Court of the Commonwealth of Massachusetts

was entered on July 20, 1989 affirmihg the

judgment of the Superior Court for

petitioner in the reduced amount of

$20,000.00.

The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. 1257(a).

STATUTE INVOLVED

Massachusetts General Laws Chapter 231,

Section 85K.

LIMITATION OF TORT LIABILITY OF CERTAIN

CHARITABLE ORGANIZATIONS

It shall not constitute a defense to any

cause of action based on tort brought

against a corporation, trustees of a trust,

Or members of an association that said

corporation, trust, or association is or at

“the time the cause of action arose was a

Charity; provided, that if the tort was

committed in the course of any activity

Carried on to accomplish directly the

Charitable purposes of such corporation,

trust, or association, liability in any such

cause of action shall not exceed the sum of

twenty thousand dollars exclusive of

interest and costs. Notwithstanding any

other provision of this section, the

liability of charitable corporation, the

trustees of charitable trusts, and the

members of charitable associations shall not

be subject to the limitations set forth in

this section if the tort was committed in

the course of activities primarily

commercial in character even though carried

on to obtain revenue to be used for

charitable purposes.

No person who serves as a director,

officer or trustee of an educational

institution which is, or at the time the

cause of action arose was, a charitable

Organization, qualified as a tax-exempt

organization under 26 USC 501(c) (3) and who

is not compensated for such services, except

for reimbursement of out pocket expenses,

shall be liable solely by reason of such

services as a director, officer or trustee

for any act or omission resulting in damage

Or injury to another, if such person was

acting in good faith and within the scope of

his official functions and duties, unless

such damage or injury was caused by willful

-4-

or wanton misconduct. The limitations on

liability provided by this section shall not

apply to any cause or action arising out of

said person’s operation of a motor vehicle.

STATEMENT OF THE CASE

This case involves a claim of medical

negligence by Petitioners, Joseph E. English

and Elizabeth English individually and as

guardians of their daughter Kerrie Ann

English. The claim was made against

Respondent New England Medical Center

Hospital, Inc. (hereafter N.E.M.C.H.), Dr.

Lloyd Wilcox and Dr. Glenn Wing. The

Complaint and Demand For Jury Trial was

entered in the Suffolk Superior Court on May

17, 1983. The Answer of N.E.M.C.H. was

filed on July 13, 1983. On November 15,

1983, N.E.M.C.H. by motion amended its

Answer to invoke the liability limit imposed

by M.G.L.c. 231, Section 85K.

The jury trial commenced on November 13,

1987. On November 23, 1987, upon all the

evidence the jury rendered a special

verdict, finding liability as to Respondent

N.E.M.C.H. only, and awarded an aggregate of

$350,000.00 in damages to Petitioners. On

November 25, 1987 Respondent N.E.M.C.H.

filed a post-trial motion in the Superior

Court to reduce the amount of the jury award

to $20,000.00 pursuant to the provisions of

M.G.L.c. 231, Section 85K.

The motion was opposed by Petitioners on

the basis that the arbitrary reduction of

damages to $20,000.00 violated Fourteenth

Amendment to the United States Constitution

as well as various provisions of the

Constitution of the Commonwealth of

Massachusetts. The Respondent’s motion was

allowed by the Superior Court on December

29, 1987. Also on that date, Judgment On

Jury Verdict For Plaintiffs in the amount of

$20,000.00 with costs was entered by the

court. On January 28, 1988, Petitioners

filed a timely Notice of Appeal of the

-6-

allowance of Respondent’s motion to reduce

the amount of jury verdict pursuant to

M.G.L.c. 231, Section 85K.

On January 13, 1989, the Massachusetts

Supreme Judicial Court transferred the case

Sua sponte from the Appeals Court. The case

was argued on April 3, 19389 and decided on

July 20, 1989.

The Supreme Judicial Court affirmed the

decision of the Superior Court on the basis

that the $20,000.00 cap was rationally

related to a legitimate public purpose of

preserving charitable assets, and thus did

not violate the Equal Protection or Due

Amendment.

REASONS FOR GRANTING WRIT

A. THERE IS A CONFLICT AMONG STATE AND

FEDERAL JURISDICTIONS CONCERNING THE

LIMITATION OF AWARDS FOR PERSONAL INJURIES

AND THE ISSUE OF DAMAGE CAPS PRESENTS AN

IMPORTANT FEDERAL QUESTION.

The arbitrary reduction of a personal

injury award from the amount fairly

~ Pp

determined by a jury ($350,000.00 in the

present case) to $20,000.00 as mandated by

M.G.L.c. 231, Section 85K deprives

Petitioners and all other seriously injured

victims of negligent “charities"™ of both Due

Process of law and Equal Protection as

guaranteed by the Fourteenth Amendment to

the United States Constitution. The

requirements of these two fundamental

Constitutional safeguards have been applied

inconsistently to damage cap statutes by the

various State and Federal Courts which have

addressed the subject.

As to the application of the Equal

Protection requirements, the lack of

consistency centers on the applicable

Standard of review. The majority of courts

which have addressed the issue have used a

“heightened degree of scrutiny" to strike

down damage caps. Arn nv » 270

N.W. 2d 125 (N.D. 1978), Carson v. Maurer,

120 N.H. 925, 424 A. 2d 825 (1980), Baptist

Hospital of Southeast Texas, Inc. v. Barber,

672 S.W. 296 (1984), Duren v. Suburban

Community Hospital, 24 Ohio Misc. 2d 25, 482

N.E. 2d 358 (C.P. 1985), and See, Jones v.

State Board of Medicine, 97 Idaho 859, 555

P. 2d 399 (1976) (case remanded for factual

determination and application of heightened

scrutiny test.) One jurisdiction has relied

upon strict scrutiny to invalidate a damage

cap on medical malpractice awards. White v.

State of Montana, 203 Mont. 363, 661 P. 2d

1272 (1983). Several courts, including the

case at bar have applied the rational basis

test to uphold damage caps. Fein v.

Permanente, 38 Cal. 3d 137, 211 Cal. Rptr.

368, 695 P. 2d 665 (1985) appeal dismissed,

474 U.S. 892 (1985), Lucas v. United States,

807 F. 2d 414 (Sth Cir., 1986), Johnson v.

Saint Vincent Hospital, Inc., 273 Ind. 374,

404 N.E. 2d 585 (1980), English v.

N.E.M.C.H. 405 Mass. 423, 541 N.E. 2d 329

(1989). (Appendix pp. la - 24a.)

-9-

There is thus a substantial dispute as

to the appropriate application of the Equal

Protection clause to this ar@a of the law

which only a determination by this Court can

resolve. Additionally, the rights of

victims and responsibilities of tortfeasors

under the United States Constitution is an

important Federal question which merits

review by this Court.

As to the application of the Due Process

protections, “({o)]ne of the reasons for the

division among the state courts is a

question left unresolved by this Court in

Duke Power Co. v. Carolina Environmental

Study Group, 438 U.S. 59, 98 S.Ct. 2620, 57

L.Ed. 2d 595 (1978)." Fein v. Permanente

Medical Group, 474 U.S. 892, 894 (1985)

(White, J. dissenting). In Duke Power, this

Court declined to decide whether a quid pro

quo was Constitutionally mandated when a

legislature abrogated a previously existing

common law right. Duke Power Co., 438 U.S.

at 88.

-10-

Several jurisdictions have followed Duke

Power Co. and have refused to hold that the

elimination of a pre-existing right must be

replaced with a satisfactory quid pro quo.

Arneson v. Olson, infra, Carson v. Maurer,

infra, Baptist Hospital v. Barber, infra.

Yet these courts had gone on to hold that

the damage caps at issue did not supply an

adequate quid pro quo to severely injured

victims. Id. Other courts have held

outright that no quid pro quo need be

Supplied. Fein v. Permanente, infra, Jones

v. State Board of Medicine, infr

States v. Lucas, infra, and, See Johnson v.

Saint Vincent, infra.

Whether Due Process requires a

legislatively enacted compensation

scheme to be a quid pro quo for the

common law or state law remedy it

replaces, and if so, how adequate

it must be, thus appears to be an

issue unresolved by this Court, and

one which is dividing the appellate

and highest courts of several

states. The issue is important,

and is deserving of this Court’s

review. Moreover, given the

continued national concern over the

“malpractice crisis,” it is likely

-ll-

that more states will enact similar

types of limitations, and that the

issue will recur. I find,

therefore that the federal question

presented by this appeal is

substantial..."

Fein v. Permanente Medical Group, 474 U.S.

at 896. (White J., dissenting.)

B. M.G.L.c. 231, SECTION 85K DEPRIVED

PETITIONERS OF EQUAL PROTECTION OF THE LAWS

IN VIOLATION OF THE FOURTEENTH AMENDMENT TO

THE UNITED STATES CONSTITUTION

The Fourteenth Amendment to the United |

States Constitution provides that “[n]o

State shall...deny to any person within its

jurisdiction the Equal Protection of the

laws." Statutory classifications challenged

as violating the Equal Protection provisions

of the Constitution are subject to one of

three levels of judicial scrutiny, depending

upon the nature of the rights at stake.

If the legislative classification at

issue “impermissibly interferes with the

exercise of a fundamental right (footnote

omitted) or operates to the peculiar

disadvantage of a suspect class (footnote

@12-

; " — ++ _. —_. ht. oe ~

omitted)“ then the statute is subjected

strict scrutiny. Massachusetts Board

“@\

Retirement v. Murgia, 427 U.S. 307,

iv)

()

ct?

)

~ = » i an : ~

COurt wnen a ciaSssitricat

gender or illegitimacy , @&.g

= . » . :

Boren, 429 S 19 e| se

. . . ae — nie 2 seer

Habluetzel, 456 U.S. 31 (| 2). erwi

a Statute iS invaiid

> i £4 , an = . . ih «+

CiaSsirications reated are rea

It has been ar

not classified as “fundamental", at!

protect classes which are not “suspect”.

Massachusetts Board of Retirement v. Murgia,

427 U.S. at 320 (Marshall, J. dissenting)

“Time and again, met with cases touching

upon the prized rights and burdened classes

-l13-

of our society, the Court has acted only

after a reasonably probing look at the

legislative goal and means, and at the

significance of the personal rights and

interests involved. Stanton v. Stanton, 421

U.S. 7 (1975), Weinberger v. Wiesenfeld, 420

U.S. 636 (1975); United States Dept. of

Agriculture v. Moreno, 413 U.S. 528 (1973);

Frontiero v. Richardson, 411 U.S. 677, 691

(1973) (Powell, J., concurring in judgment) ;

James v. Strange, 407 U.S. 128 (1972); Weber

v. Aetna Casualty and Surety Co., 406 U.S.

164 (1972); Eisenstadt v. Baird, 405 U.S.

438 (1972); Reed v. Reed, 404 U.S. 71

(1971). See San Antonio School District v.

Rodriguez, 411 U-S. 1 (1972) (Marshall, J.,

dissenting.).

Petitioners urge this Court to adopt the

"heightened scrutiny" test for application

to the classifications created by M.G.L.c.

231, Section 85K, and to find these

classifications to be violative of the Equal

-14-

Protection clause of the Fourteenth

Amendment. Nonetheless, it is Petitioners’

position that the statute does not satisfy

the requirements of the rational basis test

either, as the purpose of the statute is not

legitimate, and the classifications created

are wholly unrelated to the stated purpose.

The statute’s failure to satisfy this more

deferential standard of review will be

addressed first.

1. THE CLASSIFICATIONS CREATE

LIMITATION IMPOSED BY M.G.L.c. 231

85K ARE NOT RATIONALLY RELATED T

LEGITIMATE PUBLIC PURPOSE.

two issues must be addressed: 1) whether

the challenged statute has a legitimate

purpose, and 2) whether it was reasonable

for the lawmaker to believe that the use of

the challenged classification would promote

that purpose. Western and Southern Life

Insurance Company v. State Board of

Equalization of California, 451 U.S. 648,

-15-

668 (1981). The statute in question does

not satisfy either of these requirements.

The legislative purpose of M.G.L.c. 231,

Section 85K is not legitimate. When this

statute was first proposed in 1971, the then

Governor Francis Sargent adopted the

recommendation of the Judicial Council that

"(ijt is necessary for the legislature to

balance the desirability of protection for

such [charitable] corporations which include

schools, social organizations, museums, and

all other kinds of nonpaodit institutions as

well as hospitals against the interest of

the person who is injured as a result of a

tort for which the nonprofit corporation is

responsible." House No. 5976. (Emphasis

added.) (Appendix p. 36a.)

In the present case, the Supreme

Judicial Court stated that “[t]he objective

of Section 85K clearly is to protect the

funds of charitable institutions so they may

be devoted to charitable purposes. That

~16-

objective is just as clearly legitimate. If

a charity’s property were ’depleted by the

payment of damages its usefulness might be

either impaired or wholly destroyed, the

object of the founder or donors defeated,

and the charitable gifts discouraged.’

(Citation omitted.)" English et al. v. New

England Medical Center Hospital, Inc., 405

Mass. at 429, 541 N.E. 2d at 333 (See

Appendix p. 20a.) Special protection for

charitable institutions has long been

recognized as an unnecessary anachronism.

[E]xperiences in other

jurisdictions had demonstrated that

no calamitious social effects would

result from dissolution of the

charitable immunity; that the

availability of insurance had

obviated any threat that recoveries

against charities would seriously

deplete their funds and deprive

communities of their benefits; and

that individuals should not be

forced to suffer the unmitigated

and oftentimes crushing burden of

injuries wrongfully inflicted

merely to continue a judicially

inspired immunity long since

, outdated by the impact of modern

times...

[I]£f the enlargement of their

tort responsibilities actually

results in additional premiums,

that should be considered as but

incidental to the rendering of

equal justice to all innocent

parties who are injured through the

negligence of others.

Callopy v. Newark Eye and Ear Infirmary, 141

A.2d 276, 282 (1958), and see Bing v.

Thunig, 2 N.Y. 2d 656, 143 N.E.2d 3, 7

(1957) President and Directors of Georgetown

College v. Hughes, 130 F.2d 810, 823-4 (D.C.

Cir. 1942), Pierce v. Yakima Val. Memorial

Hospital Ass’n., 43 Wash.2d 162, 171-2, 260

P.2¢@ 7635 (1953).

The Restatement of Torts in Section 895E

“provides flatly that charitable and other

benevolent enterprises obtain no immunity

merely because of their charitable nature."

Prosser and Keeton, The Law of Torts, 5th

Edition. p. 1070 (1984). “Ordinarily, when

a court decides to abandon a court-made rule

of long standing, it starts out by saying

‘the reason for the rule no longer exists.’

-18-

In this case, it is correct to say that the

‘reason’ originally given for the rule of

immunity never did exist." Pierce v. Yakima

Val. Memorial Hospital Ass’n, 260 P.2d 765,

768 (1953).

"If the matter is regarded as ‘diverting

the fund to persons not within the class

intended for aid,’ it is impossible to

assume that the donor intends everyone

except the special object of his bounty to

have reparation. If any assumption were

justified, it would be exactly the contrary

one." President and Directors of Georgetown

College v. Hughes, 130 F.2d 810, (D.C. Cir.

1942), Granger v. Deaconess Hospital of

Grand Forks, 138 N.W. 2d 443, 449 (N.D.

1965).

"The doctrine of charitable immunity

does not comport with elementary logic or

fundamental justice. It violates a basic

principle of our law - for negligent or

tortious conduct liability is the rule,

-19- :

immunity the exception. It fosters neglect

while liability tends to induce care and

caution. It has no proper place in today’s

social and economic structure." Adkins v.

St. Francis Hospital of Charleston, 149

W.Va. 705, 143 S.E. 2d 154, 163 (1965).

"(C)haritable corporations should respond as

others do for the wrongs inflicted by

persons who act in their behalf about their

business and within the course of their

duties, actual or apparent. Immunity,

whether full or partial, is to be granted

only when compelling reason requires it. If

there has been, there is no longer such

reason." President and Directors of

Georgetown College v. Hughes, 130 F.2d at

825.

In addition, the legitimacy of the state

afforded protection of M.G.L.c. 231, Section

85K is further eroded by subsequent

additional legislative protection for

charitable hospitals. The recent passage of

-20-

the Universal Health Care Bill renders the

faulty justifications for limited liability

of health care providers even more remote

from the actual state of affairs. As a

greater number of patients are covered by

health insurance, the ‘charitable’ hospital

becomes more like any other hospital or

business which receives payment for services

rendered, and less in need of protection.

Hospitals are further protected against

frivolous claims by M.G.L.c. 231, Section

60B, which was enacted in 1976. That

statute requires that every malpractice

Claim be submitted to a Medical Malpractice

Tribunal for a determination of whether

there is sufficient evidence to warrant

further judicial inquiry. In cases that

proceed to trial, since 1986, any damages

awarded against a health care provider are

subject to the limitations imposed by

M.G.L.c. 231, Sections 60F, 60G and 60H

which include introduction of evidence

-21-

concerning “collateral source" payments

made, and a monetary cap of $500,000.00 on

general damages.

Since 1975 hospitals have also had the

protection of M.G.L.c. 175A, Section 5A.

The availability of insurance through the

Joint Underwriting Association (JUA)

benefits hospitals by “regulating insurance

rates to the end that they shall not be

excessive, inadequate or unfairly

discriminatory..." M.G.L.c. 175A, Section 2.

All hospitals with acute care services

(emergency rooms) now have available the

funds provided by M.G.L.c. 6A, Section 75.

Enacted in 1985 that statute established a

“statewide uncompensated care pool"™ to

reimburse hospitals for services rendered to

nonpaying emergency room patients.

Considered in light of the initial lack

of a need for protection for charities, the

various additional protections recently

afforded to hospitals in Massachusetts

-22- ‘

renders the purpose of M.G.L.c. 231, Section

85K illegitimate beyond all doubt. It is

well established that a change in

circumstances can render a statute invalid

even if it was valid when enacted. Newton

v. Consolidated Gas Co., 258 U.S. 165

(1922), Chastleton Corp. v. Sinclair 264

U.S. 543 (1924).

In the present case, the Supreme

Judicial Court recognized that the

purchasing power of a dollar has eroded

three-fold since the $20,000.00 limit in

M.G.L.c. 231, Section 85K was set in 1971.

Thus, Petitioners’ award of approximately

$750,000.00 including interest was reduced,

in real dollars, to approximately $6,300.00

(as of April 1989). Nonetheless, the Court

stated that “it is not the court’s

prerogative to determine whether a more

equitable distribution of the burden of

negligently inflicted personal injuries

could be devised." English, 405 Mass. at

430, 541 N.E. 2d at 333 (Appendix p. 22a.).

-23-

ahi. Pe ee

A damage cap of $1.00 is thus permissible

and beyond the scope of judicial review.

Thus, even though it is the stated

legislative purpose to “balance the

desirability of protection for such

(charitable) corporations... against the

interest of the person who is injured as a

result of a tort for which the nonprofit

corporation is responsible...", the Supreme

Judicial Court has extended “judicial

deference” to the point where the statute

need not even achieve its stated purpose.

It is apparent from the face of the

Statute, from its application and from its

effect that there are no benefits to any

victims, and that a ‘balance’ was never even

attempted. How the continued proscription

of a fundamental common law right can be

said to promote a “balance"™ when the burdens

imposed upon victims are compared to the

substantial benefits granted to charities,

is beyond comprehension.

=-24-

The amount chosen by the legislature as

an absolute cap on all damages for personal

injury victims is dwarfed by comparison

the minimum compul

07)

—<—"

)

required by M.G.L.c. 175,

mh - ~ ~+ ~ + » > ° vw :

Each resident of he m

earn ~ ~ ~ » 2 on ,

9eV, VUL VN . aut i .

rr Y >| cr ¥ >| ,

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ie)

}

amount, the patent lack

state purpose attributable to ™M

Section 85K must be recoa:

Court. The statute must be seen a

product of a powerful lobby securing

unneeded protection from the legislature at

the expense of an unrepresented and

powerless class of victims. The statute is

-25-

not a legitimate balancing of interests

after careful consideration. It is a

display of arbitrary power, not an exercise

of judgment. Mathews v. DeCastro, 429 U.S.

181, 185 (1976).

Assuming for purposes of argument that

the stated public purpose of M.G.L.c. 231,

Section 85K is legitimate, i.e. preservation

of charitable assets, the classifications

created by the statute are not reasonably

related to that purpose. M.G.L.c. 231,

Section 85K creates several classifications.

It distinguishes between victims of

charitable tortfeasors and all other

victims. It further distinguishes between

those victims who suffer damages in excess

of $20,000.00 and those who don’t. The

Statute fails to make a distinction between

victims to whom $20,000.00 would be a boon

and those to whom it would barely be a

beginning. Waggoner v. Gibson, 647 F. Supp.

1102, 1104 (N.D. Tex. 1986). The

-26-

victims most in need of pr

severely injured, are thus

most. “Limiting the recov

deserving victims...is t

interest r the stat ”

to victims f haritable t

articuiatea purpose r tne

thwarted by the ciassifica

The effect is similar

torttfeasors. AA narit R

assets to withstand a 5

not protected by tne tat

instead condemned t ti

"chilling effect™ on a

legitimate concern, the 9.

have the effect of di 3d

oY)

donations.

M. beCSe

flawed in that fails to

ability of the tortfeasor

judgment in excess of the

o27<

rs -Aananc

i Ai ei A

. > ~

ce.iy _

2 eq

-_.

~e ¢ ¥

> . "

‘ >

" >

we!

;

i 4

‘ €, 7

nS K ic

° rN < . U

-onsider

Ve — > >

athia

cap a

bis Meat

~<"

w +

‘

y > ,

R .

7 n

‘ >

* ’

4 ’ "

Aer

- e

also gives no consideration to the degree of

risk associated with the charitably

incorporated business. There is obviously a

greater risk that a hospital will inflict

injury as opposed to a library or soup

kitchen. "[{A] common liability ceiling is

likely to underprotect the patrons of the

former, (if not both)." Note: The Quality of

Mercy: “Charitable Torts" And Their

Continuing Immunity, 100 Harvard L.Rev.

1382, 1393 (1987).

Thus, the classifications created by

M.G.L.c. 231, Section 85K are not even

remotely related to its stated purpose, but

are in fact antithetical to it. As to

victims, no benefits inure, and the burdens

are placed wholly upon those most in need

and most deserving of benefits. As to

charities, those most in need of protection

don’t get it, and those who get it don’t

need it.

[The equal protection clause]

requires that all persons subject

to...legislation shall be treated

-28-

alike, under like circumstances and

conditions, both in the privileges

conferred, and in the liabilities

imposed. Thus the guaranty was

intended to secure equality of

protection not only for all but

against all similarly situated.

Hayes v. Missouri, 120 U.S. 68 (1887).

M.G.L.c. 231, Section 85K fails abjectly

to adhere to this mandate. Nor was the

mandate properly enforced by the Supreme

Judicial Court of Massachusetts. The severe

hardships which the statute inequitably

distributes for no valid reason is an

injustice that must not be permitted to

continue. This Court must strike down the

statute on the basis that it violates the

Equal Protection guarantees of the Federal

Constitution.

2. THE CLASSIFICATION CREATED AND THE

LIMITATION IMPOSED BY M.G.L.c. 231, SECTION

85K ARE ARBITRARY, UNREASONABLE AND NOT

FAIRLY AND SUBSTANTIALLY RELATED TO THE

OBJECT OF THE STATUTE.

In applying Federal Equal Protection

standards to damage cap statutes, the vast

majority of State courts have used a

-29-

"heightened degree of scrutiny" due to the

fundamental importance of the rights of

Stake. Arneson v. Olson, infra, Carson v.

Maurer, infra, Baptist Hospital of Southeast

Texas, Inc. v. Barber, infra, Duren v.

Suburban Community Hospital, infra, Jones v.

State Board of Medicine, infra. Relying

upon Reed v. Reed, 404 U.S. 71 (1971) and

Royster Guano Co. v. Virginia, 253 U.S. 412

(1920) those courts have found the right of

tort victims to recover damages from the

wrongdoer to be an important substantive

right that warrants more judicial protection

than is permitted by the rational basis

test. Accordingly, those courts have held

that the classifications created by the

statute “must be reasonable, not arbitrary

and must rest upon some ground of difference

having a fair and substantial relation to

the object of the legislation so that all

persons similarly circumstanced shall be

treated alike.” Reed v. Reed, 404 U.S. at

76, Royster Guano Co., 253 U.S. at 415.

-30-

State courts have also employed this

standard to the Equal Protection guarantees

of their own constitutions. Hunter v._

North Mason High School, 85 Wash. 2d 810,

539 P. 2d 845 (1975), Lucas v. United States

, 757 S.W. 2d 687 (Tex. 1988).

In applying the rational basis test in

the present case, the Supreme Judicial Court

made no inquiry whatsoever into the

relationship (or lack thereof) of the

Classifications created by M.G.L.c. 231,

Section 85K and the public purpose. The

court specifically declined to apply the

heightened degree of scrutiny, because they

were not obligated to do so. English, 405

Mass. at 429, 541 N.E. 2d at 333 (Appendix

p. 18a - 19a.)

Petitioners request that this Court

determine that the appropriate standard of

Equal Protection review to be applied under

the Federal Constitution is the heightened

scrutiny test adopted by the majority of

State courts for damage caps.

re -3l-

Under the more in-depth scrutiny

permitted by the heightened scrutiny test,

the inequities and deficiencies of the

statute cry out for correction. The statute

denies Petitioner and all seriously injured

victims of charitable negligence of "equal

protection of the law, in that it creates an

arbitrary damage limitation and thereby

precludes only the most seriously injured

victims...from recovering full compensation

for their injuries." Carson v. Maurer, 424

A. 2d at 837. For the unfortunate one who

is severely injured, "(t]he risk of loss is

therefore shifted to the [victim] who can

least afford it and who is in the worst

position to guard against it." Judicial

Review of Medical Malpractice Legislation,

XX Suffolk U.Law Rev. 523, 532 (1986).

"The law ought not, and characteristically

does not, place a second burden on a party

just when and just because the party has

suffered a burden already." The Quality of

Mercy, infra at p. 1390.

-32-

"(I]t is certainly true that a personal

injury is no less painful, disabling,

costly, or damage producing simply because

it was inflicted by a charitable institution

rather than by any other party or entity.

Indeed, it is almost contradictory to hold

that an institution organized to dispense

charity shall be charitable and give aid to

others but shall not compensate or aid those

individuals who have been injured by it."

Albritton v. Neighborhood Center for Child

Development, 12 Ohio St. 3d 210, 213, 416

N.E. 2d 867, 871 (1984).

In the case of charitable hospitals, to

maintain that for liability purposes they

can be put in a category with museums,

schools and soup kitchens is unsupportable.

In addition to the increased risk of injury

that hospital patrons face, and the fact

that virtually any licensed hospital is a

big business capable of bearing that risk,

the hospital industry is heavily regulated.

-33-

Massachusetts hospitals, whether charitable

Or not, are not exempted from the legal

standard of care for medical providers as

set forth in Brune v. Belinkoff, 354 Mass.

102, 235 N.E. 2d 793 (1968). Yet, if

liability is capped at $20,000.00, or any

other arbitrary amount, the legal standard -

of care is nullified, as there is no- penalty

for its breach. The public is in no way

benefited by a lowering of the standard of

care. "(T]he tendency of immunity [is] to

foster neglect and...liability to induce

care and caution..." President and

Directors of Georgetown College v. Hughes,

130 F. 2d at 824. The public is better

served by the basic principle of tort law

that a negligent party is liable for damages

caused by his wrongful conduct.

In the initial propounded versions of

M.G.L.c. 231, Section 85K, charitable

institutions other than health care

=34-

providers were granted total immunity, with

health care providers being subjected to

liability to the amount of $25,000.00. See

House Nos. 5716 and 5801. (Appendix pp. 25a -

33a.) Though still woefully inadequate, the

distinction indicates that the legislature

obviously recognized that hospitals should

be treated differently from other charities.

"If a hospital functions as a business

institution, by charging and receiving money

for what it offers, it must be a business

establishment also in meeting obligations it

incurs in running that establishment. One

of the inescapable obligations is that it

must exercise a proper degree of care for

its patients, and to the extent that it

fails in that care, it should be liable in

damages as any other commercial firm would

be liable.“ Flagiello v. Pennsylvania

Hospital, 417 Pa. 486, 208 A. 2d 193, 197

(1965).

"(A) policy exempting a charitable

-35-

organization from having to compensate for

harm caused by it is equivalent to requiring

an injured individual to make an unwilling

contribution to that organization in the

amount of the compensation which would be

due him had he been injured by a

noncharitable entity...Such coerced

donations are inimical to the whole concept

of charitable donation and service. They

are, to say the lease, distinctly

uncharitable." Albritton, 466 N.E. 2d at

871.

The $350,000.00 donation excluding

interest that the Englishs’ were forced to

make by M.G.L.c. 231, Section 85K is their

second donation to the coffers of the New

England Medical Center Hospital, Inc. They

already paid a “fair and reasonable charge"

for the negligent medical treatment

rendered." That a public benefit could

1. Medical expenses paid to Respondent

amounted to $11,830.62.

-36-

inure from this forced donation is a

paradox. Deprived of compensation from the

wrongdoer, the severely and permanently

injured victim thus becomes a public charge,

unless he is independently wealthy.

The severe hardships which M.G.L.c. 231,

Section 85K inequitably distributes for no

valid reason constitute an injustice that

must not be permitted to continue. The

benefits of the statute inure only to

wealthy negligent charities. The burdens

are mercilessly heaped upon the severely

injured victims. Our Founding Fathers could

not have intended that the Constitution

would protect such a travesty of justice.

This Court must strike down M.G.L.c. 231,

Section 85K on the basis that it violates

the Equal Protection guarantees of the

United States Constitution.

C. M.G.L.c. 231, SECTION 85K DEPRIVED

PETITIONERS OF DUE PROCESS OF LAWS IN

VIOLATION OF THE FOURTEENTH AMENDMENT TO THE

UNITED STATES CONSTITUTION

The due process clause of the Fourteenth

-37-

Amendment to the United States Constitution

prohibits governmental action from depriving

“any person of life, liberty or property

without due process of law..." Due Process

grants the right to be free from unwarranted

governmental intrusions into an individual’s

exercise of protected freedoms. Cleveland

Board of Education v. La Fleur 414 U.S. 632,

639-40 (1973). The test of

Constitutionality under the Due Process

Clause is “whether the statute bears a

reasonable relation to a permissible

legislative objective." West Coast Hotel v.

Parrish 300 U.S. 379 (1937).

When a legislative enactment abrogates a

common law right of recovery, it has been

argued, but never decided by this Court

whether a satisfactory quid pro quo must be

provided. Duke Power Co., supra, New York

Central R. v. White, 243 U.S. 188 (1967).

When faced with this issue in Duke Power

Co., this Court stated “we need not resolve

-38-

this question here since the Price-Anderson

Act does, in our view, provide a reasonably

just substitute for the common law or state

tort law remedy it replaces." Duke Power

Co., 438 U.S. at 88.

The same cannot be said for M.G.L.c.

231, Section 85K. There is no individual

benefit for any tort victim, and there is ne

societal benefit to justify the ridiculously

low recovery cap. "(T)here is no doubt that

limiting the amount of recovery o

malpractice victims displaces a common law

cause of action in tort...[and]) that

displacement is, indeed, arbitrary and

unreasonable when balanced against the

purpose of the statute.” Waggoner v.

Gibson, 647 F. Supp. 1102, 1108 (N.D. Tex.

1986) ($500,000.00 cap on medical

malpractice actions struck down.)

As for the individual victims, there is

no imposition of strict liability, no

reduced burden of proof, and no guarantee of

-39-

a certain and speedy recovery, all elements

of the satisfactory quid pro quo found

present in Duke Power Co.

The miserly remedy allowed by M.G.L.c.

231, Section 85K was not assured or

guaranteed, but was attained by Kerrie Ann

only after five (5) years of hard fought

litigation. Both the Respondent New England

Medical Center Hospital, Inc., and its

insurer were aware that their ultimate

liability could not exceed $20,000.00, and

they refused to make any offer of settlement

even after liability was clearly established

through pretrial discovery and also at

trial.

All three defendants in the action below

were represented by the same insurer, Joint

Underwriting Association. The individual

defendant doctors were not, of course,

subject to the de facto immunity granted by

M.G.L.c. 231, Section 85K. The only

significant exposure to the insurance

-40-

“

nal

on 85K thus se

"eC

substitute"

-4

recover, but as an incentive for

"charitable" health care providers to

litigate extensively and defensively. The

recovery cap is thus used as a tool by

charitable institutions and their insurers

to render seriously injured victims of

negligent harm legally impotent and unable

to pursue their common-law right to recover

damages by causing them to bear the heavy

burden of extensive litigation costs.*

"([L)imitation of recovery does not provide

adequate compensation to patients with

meritorious claims; on the contrary it does

just the opposite for the most seriously

injured claimants. It does nothing toward

the elimination of unmeritorious claims."

Waggoner v. Gibson, 647 F. Supp. at 1105,

Arneson v. Olsen, 270 N.W. 2d at 135-136.

2 Kerrie Ann Englishs’ out of pocket

litigation expenses were approximately

$30,000.00, as they would be in almost any

action involving medical expert witnesses.

=426

M.G.L.c. 231, Section 85K actually has

the untoward result of shielding and

promoting charities whose agents and

servants are negligent in the pursuit of

their charitable purposes. The statute

protects the wrongdoer and it renders a

grievious injustice to society by removing

the motivation to prevent harm since the

risk of loss to the charitable institution

is minimal.

D. THE DECISION OF THE MASSACHUSETTS

SUPREME JUDICIAL COURT IS BASED UPON FEDERAL

LAW AND IS NOT SUPPORTED BY AN ADEQUATE AND

INDEPENDENT STATE GROUND

The decision of the Massachusetts

Supreme Judicial Court which gives rise to

the present Petition is based fundamentally

upon decisions of this Court interpreting

the Equal Protection and Due Process clauses

of the United States Constitution. The

Supreme Judicial Court has historically and

consistently based its decisions concerning

-43-

Pe ha a ele ee ee

Equal Protection and Due Process claims

squarely upon Federal law. See, e.g.

Dickerson v. Attorney General, 396 Mass.

740, 488 N.E. 2d 757 (1985), Fine v.

Contributory Retirement Appeal Board, 401

Mass. 639, 518 N.E. 2d 1151 (1988), American

Manufacturers Mutual Insurance Company v.

Commissioner of Insurance, 374 Mass. 181,

372 N.E. 2d 520 (1978), Paro v. Lonqwood

Hospital, 373 Mass. 645, 369 N.E. 2d 985

(1977), Blue Hills Cemetary v. Board of

Registration in Embalming and Funeral

Directing, 379 Mass. 368, 398 N.E. 2d 471

(1979).

Virtually every state court decision

relied upon in the Equal Protection and Due

Process sections of the decision is based

squarely on decisions by this Court

interpreting the Federal Constitution. For

example, Blue Hills Cemetary, supra,

American Manufacturers Mutual Insurance

Company, supra, and Klein v. Catalano, 386

-44-

Mass. 701, 437 N.E. 2d 514, (1982) are all

cited as the source of a quote concerning

the presumption of constitutionality of a

statute. English v. New England Medical

Center Hospital, Inc., 405 Mass. at 427-8,

541 N.E. 2d at 332. (Appendix p. 15a - 16a.)

In each case, that quote is derived

directly from El Paso v. Simmons, 379 U.S.

479, 508-9 (1965). Fine v. Contributory

Retirement Appeal Board, supra, cited as

authority for a statement of the rational

basis standard of review, itself relied upon

Massachusetts Board of Retirement v. Murgia,

Supra, and New Orleans v. Dukes, 427 U.S.

279 (1976), and Paro v. Longwood Hospital,

infra, cited in reference to the existence

of an intermediate Standard of Equal

Protection review, in turn relied

exclusively upon Supreme Court precedent.

Id., 396 N.E. 2d at 988, Fn. 6.

It is apparent that the “Court decided

the case the way it did because it believed

-45-

that federal law required it to do so."

Michigan v. Long. 463 U.S. 1039, 1041

(1983). Both the Federal and State

Constitutions are specifically mentioned in

the Equal Protection and Due Process

sections of the opinion only twice. Given

the degree to which the Massachusetts

decisions have relied upon Federal law in

this area of Constitutional interpretation,

it is at least true that the grounds of

decision are so interwoven, as between State

and Federal, that this Court’s jurisdiction

is plain. See, Enterprise Irrigation

District v. Farmers Mutual Canal Co., 243

U.S. 157, 164 (1917).

If the Supreme Judicial Court had

intended to base their decision upon an

adequate and independent state ground, then

a “plain statement in the judgment or

opinion" to that effect should have been

inserted. Michigan v. Long, 463 U.S. at

1041.

-46-

In the absence of such a statement, this

Court can, and should review the decision of

the Supreme Judicial Court to bring

consistency and fairness to these unsettled

areas of the law.

CONCLUSION

Kerrie Ann English and her parents

appeal to the United States Supreme Court

for it to carry out that responsibility

which our Founding Fathers infused in its

raison d’etre. Our Constitutional roots

reach back to Runnymede where in 1215 the

Magna Carta was created. The most

fundamental principles of that doctrine

became the lifeblood of our U.S.

Constitution: Equality under the law and

Limitation of arbitrary power. Those |

principles have been defiled in the case

before you. A charitable tortfeasor has

received special treatment because of the

arbitrary power of the state government.

Thomas Paine in American democracy’s most

-47-

seminal work, Common Sense, stated that

"government even in its best state is but a

necessary evil [and] in its worst state an

intolerable one." This Court must be guided

by the words of Chief Justice John Marshall,

who in Marbury v. Madison, 1 Cranch 137,

176, 1 L.Ed. 60 (1803) stated that

"(t]he powers of the legislature

are defined and limited; and that

those limits may not be mistaken or

forgotten....To what purpose are

those powers limited...if these

limits may, at any time be passed

by those intended to be

restrained."

For the foregoing reasons, inter alia,

the Petitioners contend that they have been

denied Equal Protection and Due Process of

law by the Massachusetts Supreme Judicial

Court’s application of M.G.L.c. 231, Section

85K and the Petitioners pray that this Court

issue a Writ of Certiorari.

-43-

Respectfully submitted,

CHARLES S. MANCUSO

KEVIN G. MCINTYRE

Law Offices

Charles S. M

265 Washingt

Westwood, Ma

(617)

ancuso

on Street

ssachusetts

429-3339

-49-

/ ee

APPEND

COMMONWEALTH OF MASSACHUSETTS.

SUPREME JUDICIAL COURT FOR THE COMMONWEALTH,

NEW ENGLAND MEDICAL CENTER, INC. £& others

pending in the Superior Court Department of

the Trial Court for the County of Suff

ORDERED, that the following entry be

made in the docket; viz., ---

Judgment affirmed.

BY THE COURT,

S/ Jean M. Kennett, CLERK

July 20, 1989

405 Mass. 423

Joseph E. ENGLISH et al.,

guardians,

Vv.

NEW ENGLAND MEDICAL

CENTER, INC., et al.9

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued April 3, 1989.

Decided July 20, 1989.

Plaintiffs in medical malpractice case

appealed judgment of the Suffolk Superior

Court, John C. Cratsley, J., reducing jury

award against hospital from $350,000 to

$20,000. The Supreme Judicial Court,

O’Connor, J., held that statute limiting

liability of charitable institutions to

$20,000 if tort was committed in course of

activity carried on to accomplish purpose of

charitable organization did not violate

. Elizabeth English.

. Of Kerrie Ann English.

Glenn Wing and Lloyd Wilcox, who are not

parties to this appeal.

right to jury trial, equal protection, oF

substantive due process.

he or she wishes; rather, it means that,

with respect to those questions of fact that

substantive law makes material, party has

right to have determination made Dy ry

M.G.L.A. Const. Pt. 1, Art. lo.

5 a ririeac 4c > \

Ze Unarities 45 (Zz

7 4

Jury 34 (1)

, ~ . ~_ar state = ~ > a

Statute placing $2U0,UUU Cap

charitable institutions’ liability for tort

committed in course of activity carried on

to accomplish purpose cf charitable

organization does not violate constitutional

right to jury trial. M.G.L.A. c. 231,

Section 85K; M.G.L.A. Const. Pt. 1, Art. is.

3. Charities 45(2)

Constitutional Law 243(2), 299(2) ~~

Statute imposing $20,000 cap on

charitable institution’s liability for torts

committed in course of activity carried on

to accomplish purpose of charitable

Organization does not violate equal

protection or substantive due process;

objective of protecting funds of charitable

institutions so they can be devoted to

charitable purposes is legitimate and means

chosen bear rational relationship thereto,

even if amount of statutory cap is low.

M.G.L.A. ¢. 231, Section 85K; U.S.C.A.

Const.Amends. 5,14.

Charles S. Mancuso, Westwood (Kevin G.

McIntyre, with him), for plaintiffs.

Carol A. Griffin (David M. McCarthy and

Laurie J. Condos, Boston, with her), for

defendant.

John W. Van Lonkhuysen and Robert A.

Faucher, Brookline, amicus curiae, for Beth

Israel Hosp. Ass’n et al.

Bill Wagner of Florida, Jeffrey Robert

White of the Dist. of Columbia, and Anthony

Tarricone, Boston, amicus curiae, for Ass’n

of Trial Lawyers of America.

Walter H. Mayo, III, and Robert E.

Cowden, III, Boston, amicus curiae, for

Massachusetts Council of Human Services

Providers, Inc.

Patrick R. Carroll, William T. McGrail,

Clinton, Dorthy Grandolfi Wagg, Burlington,

Vincent F. O’Rourke, Jr., and Barry A.

Bachrach, Worcester, amicus curiae, for

Massachusetts Hosp. Ass’n, Inc.

John H. Mason, Deborah S. Steenland,

Boston, and John W. Spillane, Worcester,

amicus curiae, for Independent School Ass’n

of Massachusetts et al.

Before LIACOS, C.J., and WILKINS, ABRAMS

and O’CONNOR, JJ.

O’CONNOR, Justice.

This is a medical malpractice case

arising out of treatment rendered to Kerrie

Ann English by two physicians at the

defendant’s hospital. The jury returned

verdicts in favor of the physicians, who

were originally defendants, but against the

hospital, and assessed damages in the amount

of $350,000. In response to the hospital’s

motion, the trial judge reduced the award to

$20,000 pursuant to G.L. c. 231, Section 85K

(1986 ed.). On appeal, the plaintiffs

challenge the reduction of the verdict as

violating the equal protection and due

process clauses of the Massachusetts and

United States Constitutions and the trial by.

jury guarantee of art. 15 of the Declaration

of Rights of the Massachusetts Constitution.

We transferred the case to this court on our

’ ’ 4

own initiative.

This court adopted the doctrine of

charitable immunity in 1876. In McDonald v.

Massachusetts Gen. Hosp., 120 Mass. 432, 436

(1876), a held that Massachusetts General

Hospital, a public charity, would not be

liable to one injured by the negligence of

agents of the hospital. The court reasoned

that the hospital held its funds in trust

for the benefit of the public, and that it

would be an unlawful diversion of those

4. We acknowledge the filing of amicus

curiae briefs on behalf of the following

Organizations: Independent School

Association of Massachusetts; Massachusetts

Association of Nonprofit Schools and

Colleges; Massachusetts Council of Human

Services Providers, Inc.; Massachusetts

Hospital Association, Inc.; Association of

Trial Lawyers of America; The Beth Israel

Hospital Association; Brigham and Women’s

Hospital, Inc. The Children’s Hospital;

Dana Farber Cancer Institute; Massachusetts

General Hospital; Mount Auburn Hospital; and

New England Deaconess Hospital.

funds to apply them to the satisfaction of a

judgment based on the negligence of hospital

agents. Id. at 435-436. See Roosen v.

Peter Bent Brigham Hosp., 235 Mass. 66, 69,

126 N.E. 392 :(1920). Following our decision

in McDonald v. Massachusetts Gen. Hosp.,

Supra, we consistently applied the

charitable immunity doctrine to hospitals

and other charitable organizations until

G.L. c. 231, Section 85K, became effective

on September 16, 1971. St.1971, c. 785.

See, e.g., Ricker v. Northeastern Univ., 361

Mass. 169, 172, 279 N.E. 2d 671 (1972)

(private university); Boxer v. Boston

Symphony Orchestra, Inc., 342 Mass. 537,

538-541, 174 N.E. 2d 363(1961) (symphony

orchestra); Carpenter v. Young Men’s

Christian Ass’n, 324 Mass. 365, 369, 86 N.E.

2d 634 (1949) (association promoting moral,

mental, and physical welfare of young men);

Reavy v. Guild of St. Agnes, 284 Mass. 300,

302, 187 N.E. 557 (1933) (temporary shelter

provided to needy women and children).

In Simpson v. Truesdale Hosp., Inc., 338

Mass. 787, 787-788, 154 N.E. 2d 357 (1958),

the plaintiff urged us to overrule McDonald

v. Massachusetts Gen. Hosp., supra. We

declined, noting that "[w]hile as an

Original proposition the doctrine might not

commend itself to us today, it has been

firmly embedded in our law for over three

quarters of a century and we think that its

‘termination should be at legislative,

rather than at judicial, hands’ (citations

omitted)." Later, in Cloby v. Carney Hosp.,

356 Mass. 527, 528, 254 N.E. 2d 407 (1969),

we again observed that any renunciation of

the charitable immunity doctrine would be

best accomplished by legislative action.

However, on the assumption that legislative

action would be unlikely in the near future,

pe es

10a

we announced our intention to abolish the

doctrine “the next time we [were to be]

squarely confronted by a legal question

respecting [it])." Id. In 1971, after our

decision in Colby, the Legislature enacted

G.L. c. 231, Section 85K. Section 85K

abolishes the doctrine of charitable

immunity, and limits the liability of

charitable institutions to $20,000 if the

tort was committed in the course of an

activity carried on to accomplish the

purpose of the charitable organization.

In Colby, supra, the defendant in its

answer had advanced charitable immunity as a

defense. The plaintiff demurred, contending

that the doctrine violated the Federal and

Massachusetts Constitutions. We affirmed

the judge’s overruling of the demurrer,

saying that "[nJothing ha[d] been brought to

our attention suggesting that the doctrine

of charitable immunity is repugnant to any

lla

provision of the Constitutions of the United

States and the Commonwealth." Id. at 528,

254 N.E. 2d 407. The plaintiffs now

challenge the constitutionality of the

$20,000 statutory cap. Consistently with

our statement in Colby, which at least

suggested that the doctrine of charitable

immunity is constitutional, we hold today

that the statutory cap also is

constitutional. We are not without

misgivings about the paltriness of the

$20,000 cap, especially in light of the

decline in the value of the dollar since

1971, but we cannnot correctly declare the

statute to be unconstitutional. A change in

the amount of the cap may be appropriate but

that is a legislative decision> We, affirm

the judgment below.

5. According to the Consumer Price Index

for all urban Consumers published by the

United States Department of Labor Bureau of

Labor Statistics, the purchasing power of $1

in 1971 was the same as the purchasing power

of $3.04 in April, 1989.

12a

[1,2] The plaintiffs challenge Section

85K as violating their right to a jury trial

guaranteed by art. 15. It does not. The

right to a jury trial does not grant to a

party the right to put to a jury any

question he or she wishes. Rather, the

right to a jury trial means that, with

respect to those questions of fact that the

substantive law makes material, the party

has the right to have the determination made

by a jury. See Karlowski v. Kissock, 275

Mass. 180, 182, 175 N.E. 500 (1931);

Bothwell v. Boston Elevated Ry., 215 Mass.

467, 102 N.E. 665 (1913). No question

material to the plaintiffs’ cause of action

was withdrawn from the jury. Under the

substantive law of torts of this

Commonwealth, charitable organizations are

not liable for personal injuries in excess

of $20,000, and therefore the plaintiffs had

no right to a jury determination of damages

l3a

in excess of that amount. Pinnick v. Cleary

, 360 Mass. 1, 271 N.E. 2d 592 (1971), is on

point. In Pinnick, we held that, although

the no-fault automobile insurance statute,

St.1970, c. 670, eliminated an individual’s

right to damages for pain and suffering

unless his or her medical expenses were at

least $500,> or the injuries were of a

particular kind, the statute did not violate

the jury trial guarantee of art. 15. Id. at

31, 271 N.E. 2d 592.

The case of Johnson v. St. Vincent

Hospital, Inc., 273 Ind. 374, 404 N.E. 2d

585 (1980), like the present case, raised

the question whether the imposition of a cap

on damages violates a right to jury trial

provided by a State constitution. Although

6. But see St.1988, c. 273, Section 55 (now

$2,000).

We note that St.1988, c. 273, Section

15, amended the definition of the term,

“Personal injury protection,” in G.L. c. 90,

Section 34A, to provide no-fault benefits of

$8,000, a four-fold increase of the previous

$2,000 amount.

l4a

the cap in that case was $500,000, the

principle involved is the same. In

rejecting the plaintiffs’ argumen’: that the

limitation on damages violated their jury

trial rights, the Supreme Courc of Indiana

reasoned that "(t]he Leo.slature may

terminate an entire valid and provable claim

through a statute of limitation. It may

validly cause the icss of the right to trial

by jury through failure to comply with the

requirement to assert the right by

procedural rule. It is the policy of this

Act that recoveries be limited to $500,000,

and to this extent the right to have the

jury assess damages is available. No more

is required by Art. I, Section 20, of the

Indiana Constitution in this context." Id.

at 401, 404 N.E. 2d 585. Similarly, art. 15

guaranteed the plaintiffs’ right to have the

jury assess damages up to $20,000, but

nothing more. Thus, there was no

1Sa

infringement of the plaintiffs’ right to

jury trial.

We turn our attention to the plaintiffs’

other contentions, namely, that Section 85K

violates their rights to equal protection

and substantive due process by impermissibly

infringing on “the personal, substantive

right of a tort victim to- recover damages."

We have repeatedly said that those who

challenge the constitutionality of a statute

that does not burden a suspect group or a

fundamental interest “carry a heavy burden

in seeking to overcome the statute’s

presumption of constitutionality." Blue

Hills Cemetery, Inc. v. Board of

Registration in Embalming & Funeral

Directing, 379 Mass. 368, 371, 398 N.E. 2d

471 (1979), quoting American Mfrs. Mut. Ins.

Co. v. Commissioner of Ins., 374 Mass. 181,

190, 372 N.E. 2d 520 (1978). Klein v.

16a

Catalano, 386 Mass. 701, 706-707, 437 N.E.

2d 514 (1982).

The statute at issue does not burden a

suspect group, and “the personal,

substantive right of a tort victim to

recover damages” is not a “fundamental

interest." For purposes of equal protection

analysis under the Federal and State

Constitutions, our opinions declare that,

“"{a)bsent a showing that a statute burdens a

suspect group or fundamental interest, it

will be upheld as long as it is rationally

related to the furtherance of a legitimate

State interest." Dickerson v. Attorney Gen.,

396 Mass. 740, 743, 488 N.E. 2d 757 (1986).

Klein v. Catalano, supra 386 Mass. at 715,

437 N.E. 2d 514. The statute “only need([s)

be supported by a conceivable, rational

basis." Fine v. Contributory Retirement

Appeal Bd., 401 Mass. 639, 641, 518 N.E. 2d

1151 (1988). Nonetheless, the plaintiffs

urge us to employ a third, intermediate

level of scrutiny, ie that is less strict

than is appropriate to determine the

constitutionality of a statute that burdens

; i. — " — —n

a suspect ciass or fundamental interest Du

~ ~ ~

stricter than the “rational basis test

> + ,_“~ > — 4

See Paro v. Longwood Hosp., 3/3 Mass 645,

- o - 7 ~ oa o te ee | » we

649 n. 6, 369 N.E. 2d 985 (19 ) Under

tell us, quoting Reed ' Reed, 404 U.S he

76, 92 $.Ct. 251, 254, 30 L.BdG. 2d 22€9

(1971), the court must determine whether the

classifications created by the statute are

“reasonable, not arbitrary" and “rest upon

some ground of difference having a fair and

substantial relation to the object of the

legislation, so that all persons similarly

circumstanced shall be treated alike.”

Quoting Massachusetts Bd. of Retirement v.

Murgia, 427 U.S. 307, 320, 96 S.Ct. 2562,

2570, 49 L.Ed. 2d 520 (1970) (Marshall, J.,

18a

dissenting), the plaintiffs say that the

court should make its determination “only

after a reasonably probing iock at the

legislative goals and means, and at the

significance of the personal rights and

interests invaded."

We agree with the plaintiffs that equal

protection analysis requires the court to

look carefully at the purpose to be served

by tee statute in question and at the degree

of neem to the affected class. We have

observed that characterizing the tests to be

applied to determine the constitutional

validity of legislation as “reasonable

relation" and "strict scrutiny" is a

"shorthand for referring to the opposite

ends of a continuum of constitutional

vulnerablitiy determined at every point by

the competing values involved." Marcoux v.

Attorney Gen., 375 Mass. 63, 65 n. 4, 375

N.E. 2d 688 (1978). However, our acceptance

e 19a

of that method of analysis does not require

us to adopt a third level of review. The

rational basis test “includes a requirement

that an :mpartial lawmaker could logically

believe that the classification would serve

a legitimate public purpose that transcends

the harm to the members of the disadvantaged

class." Cleburne v. Cleburne Living Center,

tee... 473 US. 432, 452, 105 $.Ct. 3249,

3260, 87 L.Ed. 2d 313 (1985) (Stevens, J.,

concurring). In connection with such an

analysis, the significance of a limitation

of $20,000 on recovery against charities for

personal injuries is a relevant factor.

(3) The plaintiffs’ equal protection

attack is twofold. They argue that (1)

Section 85K has no legitimate purpose, and

(2) even if Section 85K has a legitimate

purpose, the means chosen by the Legislature

to accomplish the objective bear no rational

relation to it. The objective of Section

20a

85K clearly is to protect the funds of

charitable institutions so they may be

devoted to charitable purposes. That

objective is just as clearly legitimate. If

a charity’s property were "depleted by the

payment of damages its usefulness might be

either impaired or wholly destroyed, the

object of the founder or donors defeated,

and charitable gifts discouraged." St.

Clair v. Trustees of Boston Univ., 25

Mass.App.Ct. 662, 666, 521 N.E. 2d 1044

(1988), quoting Farrigan v. Pevear, 193

Mass. 147, 149, 78 N.E. 855 (1906). The

plaintiffs argue that the protection of

charitable organizations’ property against

“judgments in personal injury actions is not

a legitimate objective because the

availability of insurance, the “Universal

Health Care Bill,” the institution of

malpractice tribunals pursuant to G.L. c.

231, Section 60B (198° 4d4.), modification of

2la |

the collateral source rule pursuant to G.L.

c. 231, Sections 60F, 60G, and 60H (1986

ed.), and the Statewide uncompensated care

pool to reimburse hospitals for services

rendered to nonpaying emergency room

patients pursuant to G.L. c. 6A, Section 75

(1986 ed.), make statutory protection, at

least as to hospitals, unnecessary.

However, the availability of these sources

of protection of charitable funds is not

inconsistent with a legislative purpose to

provide still further protection.

The plaintiffs also argue that the

discrimination between the victims of

charitable tortfeasors and other victims,

between the seriously injured victims of

charitable tortfeasors and those with minor

injuries, between "wealthy" charities and

impoverished ones, and between charities and

noncharities, wrought by Section 85K, cannot

be viewed as a rational means of

22a

accomplishing the legislative objective,

even if the objective is considered ~

legitimate, of protecting charitable funds.

The plaintiffs emphasize the low amount of

the statutory cap, arguing that frequently

the expenses involved in litigating a

serious personal injury negligence case

against a hospital may far exceed the

allowable recovery. Nevertheless, while we

acknowledge the validity of the plaintiffs’

assertion, it is not the court’s prerogative

to determine whether a more equitable

distribution of the burden of negligently

inflicted personal injuries could be

devised. We cannot say that there is no

rational relationship between Section 85K’s

cap on damages and the statute’s legitimate

objective of preserving charitable assets.

See Hearn v. Massachusetts Bay Transp. Auth.

, 389 Mass. 404, 406, 450 N.E. 2d 602

(1983).

23a

The plaintiffs’ final argument is that

Section 85K offends their substantive due

process rights by failing to provide an ‘

adequate substitute for the common law right

to recover full compensation for negligently

inflicted personal injuries. In cases such

as this, where the right infringed on is not

a "fundamental" right, we have stated that

the question under the due process clause of

the Federal Constitution is "whether the

Statute bears a reasonable relation to a

permissible legislative objective," Pinnick

v. Cleary, supra 360 Mass. at 14, 271 N.E.

2d 592, and, under the analogous provisions

of the State Constitution as whether the

statute "bears real and substantial relation

to public health, safety, morals, or some

other phase of the general welfare." Blue

Hills Cemetery, Inc. v. Board of

Registration in Embalming & Funeral

Directing, supra 379 Mass. at 373, 398 N.E.

24a

2d 471, quoting Sperry & Hutchinson Co. v.

Director of the Div. of the Necessaries of

Life, 307 Mass. 408, 418, 30 N.E. 2d 269

(1940). Citing Decker v. Black & Decker

Mfg. Co., 389 Mass. 35, 43, 449 N.E. 2d 641

(1983), and Klein v. Catalano, 386 Mass.

701, 437 N.E. 2d 514 (1982), the plaintiffs

argue that "“[{i]f no substitute remedy is

supplied, then the abrogation [of the common

law right] must be rationally related to a

permissible legislative objective." In

addressing the plaintiffs’ equal protection

argument, we determined that Section 85K is

rationally related to a permissible

legislative objective. Further discussion

is not required. We conclude that Section

85K does not offend the plaintiffs’ due

process rights.

Judgment affirmed.

25a

ee ee ee Oe

THE COMMONWEALTH OF MASSACHUSETTS

HOUSE OF REPRESENTATIVES, JUNE 10, 1971

The committee on Ways and Means, to whom

was referred the petition (accompanied by

bill, House No. 1535) of the Massachusetts

Hospital Association, Robert W. Gillette,

Robert C. Buell and Joseph M. Kearney for

legislation to limit the liability for

tortious acts of certain charitable

corporations or organizations report

recommending that the accompanying bill

(House No. 5716) ought to pass.

For the committee,

GEORGE L. SACCO, JR.

26a

HOUSE - No. 5716

THE COMMONWEALTH OF MASSACHUSETTS

In the Year One Thousand Nine Hundred and

Seventy-One

AN ACT RELATIVE TO NON-PROFIT RELIGIOUS,

CHARITABLE, AND EDUCATIONAL CORPORATIONS.

Be it enacted by the Senate and House of

Representatives, General Court assembled, and

by the authority of the same, as follows:

SECTION 1. Chapter 180 of the General

Laws is hereby amended by inserting after

section 9A, the following sections-

Section 9B. Any charitable corporation,

organized heretofore or hereafter under any

general or special laws, any society or

association organized exclusively for

religious, charitable, educational or

hospital purposes shall not be liable to

respond in damages, except as is hereinafter

set forth, to any person for injury or death

caused by the negligence of any agent or

ee en eI a

27a

servant of such corporation, society or

association, but nothing herein contained

shall be deemed to exempt said agent or

servant individually from their liability for

any such negligence.

Notwithstanding the provisions of the

foregoing paragraph nothing contained therein

shall exempt any hospital, sanitorium,

infirmary, convalescent or nursing home from

their liability for any such negligence but

recovery in an action shall in no event

exceed the sum of $25,000.

SECTION 2. For the purposes of this act

but not in limitation thereof, the building

and places actually used for colleges,

universities, schools, academies, seminaries,

orphanages, historical societies, public

libraries, religious worship, charitable or

hospital purposes, the moral and mental

improvement of men, women and children,

nursing homes, rest homes, parish houses,

28a

rectories, auditoriums, houses of and for

prayer and buildings and places, however

named or designated, operated and maintained

for equivalent uses, when so operated and

maintained by any such non-profit

corporation, society or association, shall be

deemed to be operated and maintained for a

religious , charitable, educational or

hospital purpose.

SECTION 3. This act shall be deemed to

be remedial and shall be liberally construed

so as to afford immunity to the said

corporations, societies and associations from

liability as provided herein in furtherance

of the public policy for the protection of

non-profit corporations, societies and

associations organized for religious,

charitable, educational or hospital purposes.

SECTION 4. The provisions of this shall

be deemed to be severable and if any phrase,

clause, sentence or provisions of this act is

29a

declared to be unconstitutional or the

applicability thereof to any person is held

invalid the remainder of this act shall not

thereby be deemed to be unconstitutional or

invalid.

SECTION 5. This act shall take effect

upon its passage.

30a

an Re ee ee ee ee

THE COMMONWEALTH OF MASSACHUSETTS

HOUSE OF REPRESENTATIVES, JUNE 14, 1971

The committee on Bills in the Third

Reading to whom was referred the Bill

relative to non-profit religious, charitable

and educational corporations (House, No.

5716) report recommending that the same be

amended by the substitution of the

accompanying bill (House, No. 5801).

For the committee,

RAYMOND M. LAFONTAINE

JUNE

Ww Wav in

THE “MM ‘IW TTL Cc Mv SSACHUSE sake al @

4 44k4 Ta AN at dad ~~» MIAO O Ww hb bw ee s 4

AKT an oo "MID T THN “OCDTATN strA pT” oro

Ly R 1s

AWN Ui BARNET LING BRLIALN UNAANRS LADLE

SHCranrIT o TTAATIC rpomw “ADM + TaDnTT ~ z~arTr

® A S hk be . y

VIAL 2 G A 4 VWING CANUL 4 mi WLADLuiil AINL

. aaale an Sian mur + A a ok — XRSeOTA TRY "ADT.

bt be 2 v E \< LJ r 2 <

wid dd 4 LAV iiiu i Se ae L ML ALIN =*> iA ere

ACRTMAT YRGANIZATI »

be ~

ori iA JINAINI OAL So ‘ °

tye roa Tho > | + YY 4 y + + ~

, sc > > > re > ’ nr ,

~ + = J + nw - A Inte > + ’ — ~ - ~*

act woulda pI ° erea l DUI, e, whic

1 rr werent wal-" -~ A ee hae - bh + ~~» - Ke aoa m > & «Fr >

lS ~ wMWLOUV LUE . i Woo i e ad! A M y A

—_ = vy mh es er ak > — y + ~ + ’

certain cCnaril AD Lé€ r at 1 ; € l€

~~ : } 5 } - rr ¥ + . nr - ~~ | ~ 5s ae

charitable hospital corporations, ieties

and associations in such actions, therefore

tt is hereby declared to be an emergency law,

Lon!

necessary for the immediate preservation ol

the public convenience.

Be it enacted by the Senate and House

Representatives in General Court assembled,

32a

and by the authority of the same, as follows:

SECTION 1. Chapter 231 of the General

Laws is hereby amended by inserting after

section 85I the following two sections:-

Section 85J. A charitable corporation,

except a charitable hospital corporation, or

any society or association organized

exclusively for religious, charitable or

educational purposes shall not be liable for

the torts of its agents, servants or

employees nor for injuries or death to a

person resulting from the condition of a

building or land occupied by such

corporation, society or association.

Section 85K. It shall not constitute

defense to, or prevent recovery in, any

action of tort brought against any person

owning or maintaining any hospital,

Sanatorium, infirmary maintained in a town,

convalescent or nursing home, or rest home,

licenses under section seventy-one, that the

33a

defendant was, at the time the. cause of

action arose, a charitable corporation,

association or society, or that such

hospital, sanatorium, infirmary maintained in

a town, convalescent or nursing home, or rest

home, was maintained in whole or in part for

any charitable purpose, provided, that

recovery in such action shall in no event

exceed the sum of twenty-five thousand

dollars.

SECTION 2. The provisions of sections

eight-five J and eighty-five K of chapter two

hundred and thirty-one of the General Laws,

inserted by section one of this act, shall

apply to causes of action which arose prior

to as well as.on and after the effective date

of this act.

34a

P.D. 144 JUDICIAL COUNCIL 81

HOUSE . ..... «f1970). ... . » NO. 723

AN ACT PROVIDING THAT CERTAIN HOSPITAL

CORPORATIONS AND ORGANIZATIONS BE MADE LIABLE

FOR THE TORTIOUS ACTS OF ITS EMPLOYEES.

Be it enacted by the Senate and House of

Representatives in General Court assembled,

and by the authority of the same, as follows:

Chapter 111 of the General Laws is hereby

amended by inserting after section 70D the

following section:

Section 70E. It shall not constitute a

defense to, or prevent recovery in, any

action of tort brought against any person

owning or maintaining any hospital,

sanatorium or infirmary that the defendant

was, at the time the cause of action accrued,

a charitable corporation, association or

society, or that such hospital, sanatorium or

infirmary was maintained in whole or in part

for any charitable purpose.

35a

In the case of Colby v. Carney Hospital,

1969 A.S. 1437, Mass. (1969), our

Supreme Judicial Court considered the

question of charitable immunity and said

that:

Nothing has been brought to

our attention suggesting that the

doctrine of charitable immunity is

repugnant to any provision of the

Constitutions of the United States

and the Commonwealth.

In the past on many occasions

we have declined to renounce the

defence of charitable immunity set

forth in McDonald v. Massachusetts

Gen. Hosp., 120 Mass. 432, and

Roosen v. Peter Bent Brigham Hosp.,

235 Mass. 66. See, for example,

Barrett v. Brooks Hosp. Inc., 338

Mass. 754; Simpson v. Truesdale

Hosp. Inc., 338 Mass. 787; Boxer v.

Boston Symphony Orchestra, Inc.,

342 Mass. 537, 542. We took this

position because we were of opinion

that any renunciation preferably

should be accomplished

prospectively and that this should

be best done by legislative action.

Now it appears that only three or

four states still adhere to the

doctrine. See Restatement 2d:

Trusts, Section 402 (2), and

Comment on Subsection (2); Prosser

on Torts (3d ed.) Section 127, at

pp. 1021-1024. It seems likely

that no legislative action in this

36a

Commonwealth is probable in the

near future. Accordingly, we take

this occasion to give adequate

warning that the next time we are

squarely confronted by a legal

question respecting the charitable

immunity doctrine it is our

intention to abolish it.

It thus appears that the. Supreme

Judicial Court clearly intends to abolish

the charitable immunity doctrine. We are

recommending that there be a limit imposed

upon recovery against the charitable

corporation.

It is necessary for the legislature to

balance the desirability of protection for

such corporations which include schools,

social organizations, museums, and all other

kinds of nonprofit institutions as well as

hospitals against the interest of the person

who is injured as a result of a tort for

which the nonprofit corporation is

responsible.

The establishment of a $20,000

limitation would provide balancing of the

37a

interests of the two groups involved, and we

therefore recommend the following draft act.

We might observe that unless the General

Court speaks out on this matter charitable

immunity will be completely eliminated by a

decision of our Supreme Judicial Court.

It is obvious that charitable

institutions will be required to provide

insurance to protect their assets in the

event of claims against them. Such

insurance is now carried by a great many

nonprofit corporations, and this has been

the case for some years. We do not think

that the claim on a charity should be

without limit, and we point out that death

Claims in Massachusetts under Chapter 229 of

the General Laws are generally limited so

that damages for wrongful death alone cannot

exceed $50,000.

38a

It is clear that the traditional

doctrine that a charitable corporation is

not liable for torts can no longer be

maintained in the law.

1971 DRAFT ACT

AN ACT ABOLISHING CHARITABLE IMMUNITY AS A

DEFENSE

Be it enacted by the Senate and House of

Representatives in General Court assembled,

and the authority of the same, as follows:

Chapter 180 of the General Laws is

hereby amended by inserting after section 9A

the following sections:

Section 9B. It shall not constitute a

defense to, or prevent recovery in, any

action or tort brought against any

corporation heretofore or hereafter

Organized under general or special laws for -

any of the purposes mentioned in this

chapter, that the defendant was, at the time

the cause of action accrued, a charitable

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corporation, association or society or that

the defendant was maintained in whole or in

part for any charitable purpose.

Section 9C. The maximum recovery in any

action of tort against any such corporation

shall be $20,000.

Section 9D. This act shall take effect

on January first, nineteen hundred and

seventy-two, and shall apply to causes of

action rising on or after said date.

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