Sue or Be Sued

This morning I came across an interesting article by Archbishop Charles Chaput of Denver entitled “Suing the Church.” View it here. In his reliably lucid style, Archbishop Chaput explains why it would be inappropriate to sue the “Vatican” for incidents of clerical sex abuse here in the United States.

The Pope is not the CEO of an international corporation with bishops” being mere district managers. Rather, individual bishops are successors of the apostles and exercise their own independent judgment in pastoring the diocese entrusting to them. The relation of Pope to Bishop is unique. It”s spiritual, and even familial. It doesn”t fit the nice legal boxes used in American jurisprudence to assign liability to what are perceived to be “deep pockets.”

Anyway, it”s an excellent read.

It”s also “timely,” as I just noticed yesterday in the airport that the cover of TIME magazine is devoted (again) to the Pope”s “relationship” to the clerical sex abuse scandals. Of course, it’2012-04-24 18:36:31′s totally understandable. Many people have a deep-seated hatred of the Catholic Church and see in the scandals an opportunity to grind their axes. [more]

But there”s also the legal maxim that essentially says that for every injury there should be a legal remedy. People have been hurt terribly by the wayward priests and the Church leaders who let it happen or continue to happen. So it”s also understandable that creative plaintiffs” attorneys would be exploring different legal theories on behalf of their clients.

As Archbishop Chaput ably sets forth, though, there is no tenable basis in law or fact to assign liability to the Holy See in these cases.

With the Church increasingly becoming such a target in the public square, it will be interesting to see what legal protections, such as “hate crimes” legislation, can be used in defense of the Church.

On a related note, with all the victims of abortion, it seems to me that the “deep pocket” that should be paying through the nose is Planned Parenthood. (I”m sorry, that”s the lawyer in me talking.) Let me explain.

Back in the day I was a litigation attorney, specializing in medical malpractice defense. Usually people sued when they the treatment or surgery didn”t work out well. Sometimes, there would even be extreme cases such as operating on the wrong body part or dropping the patient off the operating table. (That actually happens–here is an appellate decision on a case I handled for a few years before leaving the practice of law.)

But a fair amount of the cases involved what is called a “lack of informed consent.” Basically the allegation would be that if the patient knew that such and such were a risk of the surgery or treatment, he or she wouldn”t have consented to it. That”s why we have all these consent forms that we have to sign when we go to the hospital.

Abortion doctors are paid for performing abortions, so they do not have sufficient incentive to give a full explanation of the risks of the procedure, as it would potentially cut into their business. I”ve been out of law for nearly 20 years, so I”m not up on all the things that have been tried to date. However, I think it would be appropriate for the many victims of the physical and psychological trauma of abortion to bring suit again the doctors and the Planned Parenthood clinics. Aside from the compensation aspect, this could result in more jurisdictions requiring more detailed disclosure in advance of the procedure, such as availability of ultrasound, information on risks of infertility, infection, severe psychological problems, etc. than what is required.

And it would continue to tilt public opinion toward the pro-life position.

Look at all the “safe environment” hoops Catholic parishes and dioceses go through now as a result of the sex abuse scandals. Why shouldn”t those who have been grievously harmed by abortion make their voices heard anew? Why not go through the courts so as to make medical clinics “safer environments” for women and children?  Just a thought . . .  

2 Responses to “Sue or Be Sued”

  1. Great post. What are your thoughts on the idea that the Church is similar in form to a franchise? With the individual bishops serving the role served as individual franchise owners?

  2. leon says:

    Interesting concept. Certainly some similarities (after all, just as the menu at McD”s is the same in Detroit as it is in Miami, it”s the same Mass in both of those places, even though the "franchises" are under different "management"). But while McD”s is organized according to the laws of whatever state in which it was incorporated, the Church is organized according to its Founder”s vision as carried out through the Holy Spirit acting through the Apostles and their successors. So any attempt to squeeze the Church into a business model we”re familiar with is only by analogy and will always be inadequate.

    From a legal standpoint, the key is "agency," which comes down to an assessment of the degree of control and that”s being exercised by the entity which we want to hold vicarious liable. An individual bishop is a successor of the apostles and has plenary authority in his local Church and is not the Pope”s employee. The "tests" used in such cases would clearly show that by conventional legal standards the Vatican doesn”t wield the kind of control of the bishop”s actions that would subject the universal Church to liability.

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