The Arkansas Supreme Court ruled February 12, 2009 that a 2007 state law which allowed charitable hospitals’ risk pools to be sued directly should be applied retroactively. For over 100 years, Arkansas has recognized the doctrine of charitable immunity. Unfortunately, this doctrine affects the rights of injured victims of hospital malpractice in Arkansas. In essence, Arkansas hospitals that are charitable are immune from suit. Fortunately, the Arkansas legislature has granted injured Arkansans the right to a sue a hospital’s insurance company directly under the Direct Action Statute. Additionally, in 2007 the Arkansas General Assembly amended the Direct Action statute to allow a plaintiff injured by malpractice to also sue any self-insurance fund, pooled liability fund, or similar fund maintained by a medical care provider. Prior to this amendment, several Arkansas hospitals attempted to undermine the direct action statute by using a risk pool instead of carrying liability insurance. This 2007 amendment was designed to stop this injustice from happening.
The Arkansas Supreme Court recently ruled that the 2007 amendment would apply retroactively to lawsuits filed before the 2007 Act was passed. Although I would prefer that Arkansas follow most other states and do away with this archaic rule, this is a small victory for injured Arkansans. If you or a loved one has suffered an injury due to malpractice in an Arkansas hospital, it is important that you contact an Arkansas malpractice attorney to discuss your legal rights.