dissenting. The majority’s opinion is troublesome because Mary Sowders has been whipsawed by the decisions of this court and is now left without a remedy. This appears unfair and unjust to me, and for that reason, I dissent.
The sum and substance of what has occurred here is that the majority has affirmed the doctrine of charitable immunity as applied to St. Joseph’s Mercy Health Center. Though Arkansas is one of the last states to adhere to total immunity for hospitals, see Janet Fairchild, Annotation, Tort Immunity of Nongovernmental Charities — Modern Status, 25 A.L.R. 4th 517 (1983), this court has justified it in the past because injured parties could sue the hospital’s insurance carrier directly. See, e.g., George v. Jefferson Hosp. Ass’n, Inc., 337 Ark. 206, 214-15, 987 S.W.2d 710, 714 (1999). (“Permitting hospitals such as JRMC to raise this [charitable immunity] defense may seem harsh to injured parties, but our laws provide a remedy in such cases whereby the entity’s insurance carrier may be sued directly.”) What is most disturbing today is the majority’s interpretation of the direct-action statute, which takes that remedy away from Mary Sowders.
This court has said in the past that we will give the charitable immunity doctrine a very narrow construction. See Williams v. Jefferson Hosp. Ass’n, Inc., 246 Ark. 1231, 442 S.W.2d 243 (1969). We have further been adamant that we will construe our direct-action statute liberally to effectuate its purposes because it is remedial in nature. See Rogers v. Tudor Ins. Co., 325 Ark. 226, 925 S.W.2d 395 (1996). Today’s decision is at odds with these past pronouncements. What follows are my specific disagreements with specific conclusions reached by the majority.
a. Failure to liberally construe the direct-action statute.
This court has not previously addressed the application of the direct-action statute (Ark. Code Ann. § 23-79-210 (Repl. 2004)) to liability pools like the Sisters of Mercy that provide indemnification for the liabilities of member hospitals. The Eighth Circuit Court of Appeals’s decision in St. John’s Regional Health Center v. American Casualty Co., 980 F.2d 1222 (8th Cir. 1992), does not answer this question for us as the majority would have it. First, Eighth Circuit decisions are not binding on this court, and, second, the St. John’s decision did not deal with the Arkansas direct-action statute, which, as already mentioned, this court liberally construes.
The two cases relied on by the majority (Cherry v. Tanda, 327 Ark. 600, 940 S.W.2d 457 (1997); Waire v. Joseph, 308 Ark. 528, 825 S.W.2d 594 (1992)) are sovereign immunity cases and did not involve the issue of “charitable” hospitals. The third case (Douglas v. Dynamic Enters., Inc., 315 Ark. 575, 869 S.W.2d 14 (1994)) did not deal with the direct-action statute. Simply put, these cases are not controlling.
If this state is going to retain charitable immunity for hospitals, then the direct-action statute must be liberally construed so that injured parties can reach the funds set aside for the indemnification of a hospital’s liabilities no matter what form those funds take, whether they are traditional liability insurance paid for through premiums, or a liability pool to which the hospital contributes. By choosing not to carry traditional liability insurance, St. Joseph’s has sidestepped the system and now cannot be held liable for its negligence in any way, either through the payment of increased insurance premiums or through the loss of funds contributed to the liability pool.1 It is only mete and right that the direct-action statute be liberally construed in charitable immunity cases to include liability pools, such as the Sisters of Mercy’s fund, so that injured plaintiffs are not left without a remedy for hospital negligence.
b. The suit against the employees was not an adequate remedy.
It is true that Mary Sowders could have filed suit against the individual employees and collected at least some amount from the liability pool. The majority holds that this was an adequate remedy under our state Constitution. The majority, however, does not address how this would be an adequate remedy in the case of institutional negligence by the hospital. It is St. Joseph’s contention that there is no such thing as institutional negligence, as any act of negligence can always be traced to an individual. I disagree. Not having appropriate procedures, rules, or protocols in place for situations like those experienced by Mary Sowders can be laid directly at the feet of the hospital, and not its employees. See, e.g., St. Paul Fire & Marine Ins. Co. v. Knight, 297 Ark. 555, 764 S.W.2d 601 (1989) (allegations against hospital included negligence in the hiring, supervising, and retaining of a certain employee). Yet, such institutional negligence and this avenue of relief are discounted by the majority, inappropriately in my opinion.
c. Preservation.
The majority opinion makes a distinction between Sowders’s argument that charitable immunity is unconstitutional because there is no remedy against St. Joseph’s and her argument that charitable immunity should be abolished across the board for public policy reasons. The majority opinion does not discuss or analyze abolition of charitable immunity for hospitals, because it states that Sowders never obtained a ruling on the issue from the circuit court. I agree with the majority that Sowders made two distinct arguments. However, I disagree that Sowders did not obtain a ruling from the circuit court on her policy argument about doing away with charitable immunity. Sowders never obtained a specific written ruling from the circuit court stating that the policy reasons for charitable immunity still apply, but the circuit court did rule that St. Joseph’s was entitled to the protections afforded by charitable immunity. I believe this is a sufficient ruling from the circuit court that the policy reasons behind charitable immunity apply in this case, and, thus, this court could have reviewed that issue.
d. Conclusion.
Because the majority has refrained from reconsidering the issue of charitable immunity for hospitals like St. Joseph’s, which are significant business enterprises, it falls to the General Assembly to do so. We have called on the General Assembly to do so in the past. See Scamardo v. Jaggers, 356 Ark. 236, 144 S.W.3d 311 (2004) overruled on different grounds by Low v. Ins. Co. of N. Am., 364 Ark. 427, 220 S.W.3d 670 (2005). It is appropriate to call on the legislative branch again.
Moreover, because of the majority’s refusal to liberally construe the direct-action statute to include liability pools, such as the Sisters of Mercy fund, this also should be considered by the General Assembly.
Again, this opinion today is very troublesome. I respectfully dissent for the above-stated reasons.
Each member of the liability pool contributes to the pool an amount assessed by Sisters of Mercy based on the hospital’s past history of claims, its future risk assessment, the previous amounts paid, and the amount each has needed to withdraw. Therefore, hospitals that cannot be sued, such as St. Joseph’s, are required to pay less into the fund.