A Rhode Island man won $40 million because hospital staff cut his blood thinners, which worsened his condition and forced amputation of his right leg. In New York, juries have been especially generous, with some of the highest medical malpractice verdicts against hospitals in the nation.
But this isn’t the case in Massachusetts, where patients are far more limited in what they can recover. Here, a century-and-a-half-old court precedent — one of a few in the nation, and the most stringent — severely limits liability against nonprofits such as hospitals, universities, and churches. State law currently caps medical malpractice awards at $100,000, while other liability awards are limited to $20,000.
The “charitable immunity” law has long faced criticism, public pushback, and attempts at reform, including from lawyers and abuse victims who say it allows powerful institutions to hide behind their corporate status, and shield themselves from atoning financially for their misdeeds.
“Massachusetts is literally in the Dark Ages on this issue,” said Kathryn Robb, a national director of the nonprofit Enough Abuse.
Local nonprofits have fought efforts to change the law year after year, predicting dire consequences if the cap is lifted. But today — amid more than 250 claims of sexual assault against a Brigham and Women’s Hospital doctor and the hospital itself — those limitations are facing the most forceful challenge in years.
In civil lawsuits filed over the past two years, patients allege the Brigham looked the other way as rheumatologist Dr. Derrick Todd sexually assaulted them during medical exams. The hospital denies the allegations. Todd has pleaded not guilty to two rape charges pending in a criminal case against him, and in the civil suits has asserted his Fifth Amendment right against self-incrimination.
The Brigham, a Harvard teaching hospital that is part of the multibillion-dollar health care system Mass General Brigham, is incorporated as a nonprofit.
A Globe Spotlight Team review of five similar sexual assault cases in other states — none of which recognize so-called charitable immunity — found hospitals and universities compensated alleged victims with significantly larger payouts than the Brigham faces under Massachusetts law.
Columbia University and NewYork-Presbyterian/Weill Cornell Medical Center, for example, recently paid plaintiffs an average of $1.3 million each to settle accusations it allowed a popular obstetrician to sexually assault patients for years. Michigan State University compensated patients of Dr. Larry Nassar — the disgraced former physician to the USA Gymnastics team — $1.2 million on average, with settlements reaching as high as $3.5 million for those he repeatedly molested, according to the lead attorney for the plaintiffs.
To be sure, even though Massachusetts caps jury and judicial verdicts, nonprofits can choose to settle a case and go beyond the financial ceiling. Because settlements are usually confidential, it’s hard to know how often this happens, but several plaintiffs’ lawyers said it’s not common. In medical malpractice cases, patients can also sue doctors, who generally are not protected by the cap.
Jodie Kimball, one of the 250 patients who sued Todd and the Brigham, said she had no idea the state’s largest and wealthiest health care system is a nonprofit. “How can they be protected under the law when we weren’t protected?” she said in a Globe interview.
Rory McCarthy, another patient who is suing Todd and the hospital, persuaded legislators to file a bill last year that would lift the cap in sexual abuse cases.
It “allows these institutions that permit abusers to fester within their systems to act like they cannot be touched,” McCarthy told legislators last June.
The size and continued existence of the cap “reflects political power in the state,” said Keith Hylton, a Boston University law professor, noting the strength hospitals and universities have in negotiations on Beacon Hill.
“Those caps would be hard to lift just because of the strength of those lobbies,” he added.
Brigham spokeswoman Jessica Pastore said the hospital has not taken a position on the proposal to amend the cap in cases of sexual abuse, but declined to comment further.
Nonprofit groups have spent heavily on lobbying efforts. Though activity on individual bills is rarely itemized, lobbyists who weighed in on bills addressing charitable immunity reported receiving nearly $600,000 in the first six months of the current legislative session, a Globe analysis found.
Sam Melnick, a spokesman for the Massachusetts Health and Hospital Association, said raising or removing the legal protection could “negatively affect wide swaths of patients and caregivers” by raising costs for such expenses as liability insurance, hurting patients.
The Massachusetts law dates back to 1870, when a construction worker, James McDonald, fell from a building and smashed his thigh bone. Over his objections, a third-year Harvard Medical School student at Massachusetts General Hospital set his bone and cared for him during his two–month hospital stay.
McDonald soon sued, alleging the “house pupil” set the fracture incorrectly, leading to permanent injury.
A Massachusetts court ruled that because Mass. General was a charity that provided care free of charge to many patients, it was not liable.
Health care has changed dramatically since then.
Most patients — and their insurance companies or government programs — are paying customers, and health care systems carry extensive liability insurance. Mass General Brigham last year had more than $22 billion in operating revenues.
Today, only about 10 states still acknowledge some form of charitable immunity for nonprofits. The vast majority dispensed with such laws or court precedents decades ago. Judges have called them outdated, dubious, and bad public policy.
But not in Massachusetts.
In 1971, the Legislature passed a law that capped judgments at $20,000. In 2012, it increased the cap to $100,000 for medical malpractice cases.
Among the few states that retain some form of charitable immunity, “Massachusetts is the most egregious example of these caps in the entire country,” said Stefan Turkheimer, vice president of public policy at RAINN, an advocacy group for sexual assault survivors.
Texas, for example, has a charitable immunity cap of $500,000 or $1 million, depending on the circumstances, and allows for exceptions.
“When deep-red states have more progressive legislation than Massachusetts, there is a problem,” said John Manly, lead attorney in the civil lawsuits against Nassar and Michigan State.
Lawyers have found ways to circumvent the cap. Medical malpractice cases often name individual doctors involved in a patient’s care, rather than counting on the hospital for compensation. In those cases, patients can end up with sizable settlements or jury awards.
But that approach isn’t always possible.
In 1995, the parents of a newborn named Dylan Keene sued the Brigham, alleging it failed to properly diagnose his seizures as sepsis and meningitis, and left him with profound brain damage that would require lifelong one-on-one care. The plaintiffs were missing the names of all doctors who cared for Dylan and so could not name them in the lawsuit.
Judges, frustrated over the hospital’s failure to turn over key medical records, awarded Dylan’s family $4.1 million. Citing the cap, the hospital had the award overturned on appeal.
There is little recourse in cases where a specific person cannot be found at fault, said Eric J. Parker, a senior partner at Parker Scheer. His law firm does not take personal injury cases that solely target charities, he said, because even a $100,000 settlement after legal fees would leave almost nothing for the patient.
“It’s insane that we have to tell client after client there’s nothing we could do for you. . . . They’re virtually immune,” he said.
The state’s most powerful trade groups have long thwarted attempts to lift the charitable immunity cap.
This legislative session alone, nearly two dozen groups opposed or expressed concern about legislation that would lift or weaken the immunity cap, including the Massachusetts Association of Health Plans and the Association of Independent Colleges and Universities in Massachusetts.
Others offer alternatives to litigation. The Archdiocese of Boston, which faced numerous lawsuits in the wake of the clergy sex abuse scandal, now offers a program allowing victims to seek compensation without going to court.
The program, on average, pays about $75,000 to victims who are found credible, said Mitchell Garabedian, who has represented victims in clergy abuse cases.
Because the cap is so low, he said, the church has little incentive to offer substantially more to victims. “The cap’s always an obstacle,” he said.
A spokesman for the Archdiocese declined to comment.
Representative Michael Day cosponsored a bill to lift the cap in cases of sexual or physical abuse of children, who are especially vulnerable. He is cochair of the judiciary committee, which recently advanced the proposal. However, the committee so far has declined to amend the bill to lift the cap for sexual abuse victims of all ages, although Day said he is not necessarily opposed to that.
In other states that have abolished charitable immunity, “the sky hasn’t fallen,” Day noted.
Liz Kowalczyk can be reached at lizbeth.kowalczyk@globe.com or on Signal at kowalczyk.55. Elizabeth Koh can be reached at elizabeth.koh@globe.com or on Signal at koh.20. Follow her @elizabethrkoh.
