dissenting. I would reverse _the grant of summary judgment in this case because the issue of whether Johnson Regional Medical Center (“JRMC”) is a charitable organization entitled to charitable immunity is contested by the parties and presents a genuine issue of material fact for the jury to resolve. The trap that the majority, and the trial court before it, fell into was to decide these issues of fact as a “legal interpretation of undisputed facts,” all of which runs counter to the foundational principle in our jurisprudence that juries are fact-finders — not the judges.
As an additional matter, I disagree that all of the eight George factors are undisputed by the parties. See George v. Jefferson Hospital Ass’n, 337 Ark. 206, 987 S.W.2d 710 (1999). Harvie Anglin, as the plaintiff in this case, presented proof in deposition form that JRMC makes a net profit in most years; that it has over six million dollars in reserve funds; that it is the fourth largest employer in Clarksville; that government or private insurance accounts for the majority of its income and it receives an insignificant portion from donations; that charity care accounts for a very small part of the services it provides; that it carries liability insurance; and that its administrative employees are well paid. That evidence, at the very least, calls into question whether JRMC’s profit and reserves are used for charitable care and the extent of free care it offers.
But the main fallacy in the majority opinion is that it seems to claim that, if the parties agree on the profit amounts and amount of charitable care, there is no genuine issue of material fact for purposes of deciding charitable immunity. But that misses the point entirely. Even assuming that no one disputes the accuracy of the amount of profit made by JRMC or the total amount of its reserve funds or the amount of charitable care it gives, the ultimate question is whether, based on all the factors, JRMC is, in fact, a charity. That is the issue to be resolved and that is a factual inquiry. Based on the majority’s reasoning, however, no matter how much profit a hospital makes and no matter how little it offers in charitable care, as long as the parties do not contest those amounts, the hospital will never be entitled to a jury trial with respect to the hospital’s status. That cannot be the law.
In Crossett Health Center v. Croswell, 221 Ark. 874, 883, 256 S.W.2d 548, 552 (1953), this court made the point clearly and undisputedly that it was up to the jury to consider the factors militating for and against charitable status and to determine whether “the Medical Center was a trust involving dedication of its property to the public.” Moreover, this court has made it clear that we give the doctrine of charitable immunity “a very narrow construction.” Williams v. Jefferson Hosp. Ass’n, 246 Ark. 1231, 442 S.W.2d 243 (1969). And yet in analyzing the eight George factors, the majority tilts in favor of JRMC and gives a broad construction for charitable immunity. For example, for factor three, which is whether the hospital’s goal is to break even, JRMC admits that breaking even is not its goal and that any profit is used to fund hospital improvements. Presumably, “improvements” would also include compensation for directors and officers. The point is that there is no suggestion that profit goes solely to charitable care. The majority also announces that JRMC provides $849,043 in free medical services, which is at odds with Anglin’s deposition proof. But, in addition, does Medicare and Medicaid pay for some of this free care? That question is unanswered in the majority’s opinion.
After today’s decision, it is difficult for me to imagine how any of the George factors or the issue of charitable immunity itself would ever present an issue for the jury to decide. The majority seems to accept JRMC’s figures and to close the door on that ever happening. As a result, deciding whether the George factors are met, and immunity itself, becomes solely forjudges to resolve as a matter of law. Again, that is at odds with all of our summary-judgment jurisprudence when a genuine issue of fact remains to be resolved. In short, whether an entity is a charity is the material factual inquiry in summary judgment, not a “legal interpretation,” as the majority would have it. It also bears mentioning that Arkansas is one of only four states that still provides absolute charitable immunity for its hospitals. See Janet Fairchild, Annotation, Tort Immunity of Nongovernmental Charities - Modern Status, 25 A.L.R. 4th 517 (1983 & Supp. 2007).
I would deny the hospital’s motion for summary judgment and remand for a jury trial on the question of whether JRMC is entitled to charitable immunity. For these reasons, I respectfully dissent.