Arkansas Appeals Court Denies Charitable Immunity in Nursing Home Negligence Suit - McMullin v. Arkansas Elder Outreach of Little Rock


September 14, 2011

In my practice as a Philadelphia injury lawyer, I occasionally read about a legal doctrine called charitable immunity. We no longer have such a rule in Pennsylvania, but in neighboring New Jersey and other states, non-profit organizations can sometimes be immune from lawsuits -- no matter what they may be responsible for -- simply because they are incorporated as charities. That charitable immunity was tested in the Arkansas Court of Appeals ruling in McMullen v. Arkansas Elder Outreach of Little Rock, Inc.. In that case, Bobby McMullen sued Elder Outreach for alleged negligence when his father, William McMullen, was a resident there. Elder Outreach won dismissal of the lawsuit because it is not for profit, but the Appeals Court ruled that Elder Outreach waived the defense by failing to plead it early enough.

McMullen alleged that his father had suffered several injuries while under Elder Outreach's care, but the opinion did not go into details. The elder McMullen is now deceased. The younger one filed suit in August of 2006 and Elder Care answered in September that it is a nonprofit, but did not say it is entitled to charitable immunity. It moved to dismiss on that basis in October of that year. In his opposition to the motion, McMullen argued that Elder Outreach waived its charitable immunity by not citing it in the original answer. The motion was denied and discovery on the issue proceeded, and in March of 2009, Elder Outreach amended its 2007 for summary judgment on the basis of charitable immunity. This was granted, McMullen's post-ruling motions were denied and McMullen appealed.

Before the Arkansas Appeals Court, McMullen again argued that Elder Outreach had waived its charitable immunity argument by not bringing it up in its answer. This rendered it ineligible for charitable immunity, he argued, and thus summary judgment was incorrectly granted. The appeals court agreed. It noted that Elder Outreach not only failed to plead charitable immunity in its answer; it also failed to amend its answer according to the trial court's suggestion. Elder Outreach said it should be enough that it mentioned its nonprofit status in the answer; but the appeals court disagreed, noting that the Arkansas Supreme Court had already found this insufficient. Nor was its motion to dismiss a "responsive pleading" that can substitute for the answer, the court said. Thus, it reversed the trial court.

As a Pennsylvania nursing home lawyer, I'm pleased that McMullen will get his day in court. And that's all the court did at this stage -- allow McMullen a chance to prove his case. If Elder Outreach had been granted charitable immunity, it would have been able to dodge the lawsuit regardless of whether it had been negligent; the doctrine makes no distinction between cases with merit and frivolous cases. That's one reason why Pennsylvania and other states have abolished the charitable immunity doctrine. Applying it to nursing homes could potentially allow homes to commit Pennsylvania nursing home abuse and medical negligence with no consequences from the patients' families, although state regulators may still step in. As a Philadelphia medical malpractice lawyer, I'm pleased that our state gives victims the right to make their cases without overcoming the hurdle erected in this case.

Rosenbaum & Associates represents families who believe or know that a nursing home's negligence is responsible for injuries or death to a loved one. If you'd like to tell us your story and learn more about your legal rights, call us today at 1-800-7-LEGAL-7 or send us a message through our website.

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