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CLARKE, Presiding Justice.
Charitable immunity. Fulton Superior Court. Before Judge Etheridge.
This appeal and cross-appeal arise out of a suit brought by Nellie Grace Ponder, individually and as mother and guardian of Walter Lavar Ponder, for damages from injuries to Walter allegedly resulting from the malpractice of appellee Grady Memorial Hospital (Grady) in the treatment of Ms. Ponder during pregnancy, delivery, and treatment of Walter after delivery. Grady moved for summary judgment relying on charitable immunity. The trial court granted partial summary judgment to Grady, finding that the charitable immunity doctrine barred Ms. Ponder's claim except to the extent of funds available under Grady's self-insurance plan. Both Ms. Ponder and Grady appeal from this ruling. In her appeal, Ms. Ponder contends that the application of the charitable immunity doctrine to her is unconstitutional in that it violates both due process and equal protection. She claims that application of the doctrine interferes with a fundamental interest and disadvantages a class of people solely because of their indigency. Furthermore, she claims that the charitable immunity doctrine is racially discriminatory.
1. It has long been the rule in Georgia that "an incorporated hospital, primarily maintained as a charitable institution, is not liable for the negligence of its officers and employees, unless it fails to exercise ordinary care in the selection of competent officers and servants, or fails to exercise ordinary care in retaining such officers and employees." Morton v. Savannah Hosp., 148 Ga. 438 (96 SE 887) (1918). There is an exception to this general rule: a charitable hospital may be liable for negligence to a paying patient, but the recovery is limited to income derived from non-charitable sources. Id.
By design the charitable immunity doctrine protects the funds of the charitable institution from depletion in order that these funds may be presumed to carry out the charitable purpose of the institution for the benefit of its beneficiaries. The doctrine does not constitute a violation of the equal protection or due process clauses of the federal or state constitutions. While the charitable institution is not liable to its beneficiaries, it is for their benefit that the assets are protected. The disadvantaged as a class, far from being discriminated against by the charitable institution, are its only beneficiaries. As for the argument of racial discrimination, Ms. Ponder in her brief admits that no facts have been developed to support such a claim.
Indigency is not a "suspect" category requiring "strict scrutiny" in equal protection analysis or even a category requiring an intermediate level of scrutiny to determine whether there is a substantial relationship to an important governmental objective. San Antonio Independent School District v. Rodriguez, 411 U. S. 1 (93 SC 1278, 36 LE2d 16) (1973); McDaniel v. Thomas, 248 Ga. 632 (285 SE2d 156) (1981). The proper standard for an equal protection analysis of the charitable immunity doctrine is whether it bears a rational relation-ship to the public policy of care for indigent persons. The charitable immunity doctrine does have a rational relationship to the care of indigent persons in that it protects the charitable assets available for their care.
2. A charitable institution waives charitable immunity to the extent of any liability insurance which it carries. Morehouse College v. Russell, 219 Ga. 717 (135 SE2d 432) (1964); Young Men's Christian Assn. v. Bailey, 112 Ga. App. 684 (146 SE2d 324) (1965); Cox v. DeJarnette, 104 Ga. App. 664 (123 SE2d 16) (1961). A liability insurance policy is a non-charitable asset which is not covered by the charitable immunity doctrine. Cox v. DeJarnette, supra. We must decide whether Grady's self-insurance plan bears enough of the characteristics of ordinary insurance to constitute a waiver of immunity.
Ms. Ponder argues that Cox v. DeJarnette is controlling on the issue of waiver of immunity. Grady contends that the liability policy in Cox is distinguishable from Grady's self-insurance plan in several respects. Most notably, in Cox, a finding of no waiver of immunity would have resulted in a windfall to the insurance company. Here, no such windfall would occur. Further, a finding of waiver in the present case would require a depletion of charitable assets because of the necessity of replenishing the self-insurance pool.
The plan states its purpose as the provision of a fund to pay legal claims. We construe a legal claim for the purposes of this case to be a claim which could succeed in the absence of the fund. This claim could not. We therefore find that the hospital's defense of charitable immunity is not waived because of the existence of the self-insurance plan. Summary judgment should have been granted to Grady.
Alston & Bird, Judson Graves, Earle B. May, Jr., Eugene T. Branch, for appellee.
Bird & Scherffius, William Q. Bird, Andrew M. Scherffius III, for appellants.
Thursday May 21 14:12 EDT

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