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Time to end virtual legal immunity for DDS nonprofit providers

September 27, 2021 7 comments

Under a state law that is now a half century old, corporate providers to the Department of Developmental Services (DDS) can’t be sued for more than a nominal amount of money even if they are found to be responsible for serious instances of abuse or neglect of their clients.

We think it’s time to change or end the Charitable Immunity Law (M.G.L. c. 231 Section 85K), under which the legal liability of nonprofit organizations in Massachusetts is limited to a maximum of $20,000 in most cases. Very few attorneys will even consider representing clients in cases in which such a low level of allowable damages is allowed.

This situation has contributed to the overall poor quality of care and conditions that is frequently found in group homes in the DDS system.

By way of disclosure, Thomas Frain, COFAR’s president, is an attorney who represents DDS clients. He maintains that raising or eliminating the $20,000 cap would provide an avenue of redress for those clients and their families that isn’t currently available.

“The 300 companies contracting with DDS to care for people with developmental disabilities should be held accountable just like everybody else,” Frain said. “There was a time that these charities got by with bake sales, can drives and private benevolence; but no more.  The executives are handsomely paid and should be called to task when they inflict or ignore suffering.”

While states have different standards regarding charitable immunity, Massachusetts is one of the few states left with a charitable immunity statute that imposes such a low cap on liability, Frain said.

We think the $20,000 cap needs either to be significantly raised or eliminated entirely. We support the intent of H.1599, a bill which would eliminate the cap.

Legislation similar to H.1599 has been proposed for many years in the state Legislature. The bill is currently in the Judiciary Committee.

In testimony that we submitted last week to the Judiciary Committee, we noted that unless the chariable immunity cap is raised or eliminated, egregious cases of neglect by nonprofits in the DDS system will continue to go virtually unpunished, creating an enormous accountability problem.

Tommy Shea case

In one case we have blogged about, Maureen Shea’s son, Tommy,  who was 33, had an intellectual disability and was subject to epileptic seizures while asleep.

Tommy’s bedroom in his staffed apartment was equipped with an audio and visual monitor that could alert the staff so that the staff could make sure that during a seizure he didn’t roll over face-down — a position that can prevent breathing.

Maureen and her daughters were nevertheless concerned that the residential staff did not regularly check the monitor’s batteries, and that they had not been adequately trained in how to position the device. But the nonprofit provider that employed the staff had repeatedly assured Maureen that the staff were trained and were knowledgeable about Tommy’s medical equipment.

In June, 2017, Tommy was found dead, face-down on his bed. The batteries in the monitor were later found to be dead.

We think Maureen should have the right to sue the provider that failed to take promised measues that would have kept her son alive.

Nick Alemesis case

In another case we wrote about late last year, staff in a DDS corporate provider-run group home in Dracut failed to take Nick Alemesis, a resident of the home, for a scheduled morning ultrasound appointment, which would have shown that his brain shunt was leaking spinal fluid.

Just hours after the scheduled time for the appointment, Nick’s mother, Cindy, first noticed how ill Nick appeared. She had him taken to a hospital where doctors found that the shunt was leaking spinal fluid into his body.

Nick got sepsis from the leaked fluid, and was in Massachusetts General for eight months, during which he underwent multiple brain operations and other procedures. Cindy was at his bedside for much of that time.

There has been zero accountability in that case. DDS and the Disabled Persons Protection Commission (DPPC) declined even to undertake an investigation in that case. Not only does Cindy not have the ability to sue the provider for an amount over $20,000, but DDS has subsequently moved in probate court for unclear reasons to remove Cindy as co-guardian of her son.

The cap history and its aftermath

The charitable immunity law in Massachusetts goes back to the 1870s when the state Supreme Judicial Court ruled that a public hospital could not be held liable for an injury to an individual in the hospital’s care.

The SJC reversed its position in the 1969 case of Colby v. Carney Hospital, leading to the enactment by the Legislature of the current Charitable Immunity statute in 1971.  Despite the specification of a $20,000 cap under the law, most nonprofit organizations today carry insurance that could cover them for much higher damages.

As Attorney Jeffrey Beeler said to the Judiciary Committee, in testifying in favor of a bill to eliminate the Charitable Immunity Law in 2006, the $20,000 cap has resulted in a financial windfall for insurance companies. The statute has, at the same time, forced many injured plaintiffs to depend on Medicaid and other taxpayer-funded programs to pay for the treatment of their injuries.

Providers that purchase insurance are capable of paying much larger claims than the $20,000 stipulated by the cap without being harmed financially. As Tom Frain noted, these providers are often able to pay hundreds of thousands of dollars per year to their executives.

In sum, we believe raising or eliminating the charitable immunity cap entirely is a necessary step in restoring accountability and equity to the system of care of persons with developmental disabilities in Massachusetts.

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