Tort Reform, Clergy Abuse and the Common Good

by Rev. Michael P. Orsi, Ed.D

Rev. Michael P. Orsi is Chaplain and Research Fellow at Ave Maria University, Ann Arbor, Michigan.  He is a priest of the Diocese of Camden, New Jersey.  He has written four books and many articles.  He has a PhD from Fordham University.

           Civil society always recognized three pillars – doctors who kept the citizenry well, lawyers who kept the state functioning, and clergy who cared for the souls of the citizenry.  Until relatively modern times, the community of professionals worked together for the common good.  Oftentimes they would sacrifice themselves for the benefit of those they served.  However, since the 1960s, the rise of the concept of the autonomous person has set these pillars somewhat at odds.  The rise of the individual and the individual’s rights has taken precedence over the interests of the totality of persons, which compromises the good of the commonwealth.  Perhaps one effect of this turn from what all past republican societies deemed vital for survival is the proliferation of lawsuits and the large settlements for compensatory and punitive damages.  Some awards have been so big as to endanger the survival of the entity held liable.  This is quite obvious in the cases involving medical malpractice.  As a matter of fact, in some states certain high-risk specialists, e.g., ob-gyn and neurosurgery, have left the practice because of the high cost of malpractice insurance.  This naturally has a devastating effect on the welfare of the community and its future.  The need for tort reform is obvious.

The recent spate of clergy abuse claims against Roman Catholic priests and the large sums being demanded in civil suits against the Church should give us reason to pause and evaluate the consequences of bankrupting various dioceses.  Whereas guilty priests and bishops should be criminally and civilly prosecuted, to bring down a whole institution with a proven record of community service is detrimental to the greater good.  The questions that must be asked are whether the lawsuits are substantial or frivolous, or simply seeking an out of court settlement, and whether the awards in bona fide abuse cases are just or indicative of greed on the part of the attorney and client.

In what is perhaps the most infamous case of sexual abuse and negligence, which involved former priest John Geoghan, the Archdiocese of Boston is faced with the possibility of bankruptcy.  Even though a compromise was reached recently with the victims and their families reducing the settlement from $30 million to $10 million, the archdiocese faces hundreds more lawsuits involving other priests, bishops and Cardinal Bernard Law.  Imagine all the people who would suffer from the loss of the many fine social programs sponsored by the Archdiocese of Boston if its assets are further depleted.  In a Canadian case involving proven allegations of sexual abuse against certain members of the Irish Christian Brothers Congregation at Mount Cashel Orphanage in Newfoundland, the assets of the congregation were not sufficient to pay out all the claims so the Christian Brothers Corporation made application to an Ontario Court to have its assets wound up and creditors paid.  The court then ruled that since the Christian Brothers were shareholders in two Vancouver schools that they should be sold to pay the claims of the creditors.  Finally, after a long court battle, the Archdiocese of Vancouver, which had built the schools and was concerned for the continuation of Catholic education in the province and the welfare of the students, made an out-of-court settlement to guarantee $19 million in loans to pay the liquidator and end the litigation.  Had the archdiocese not stepped in, hundreds of young people’s education would have come to an end in two very fine schools.  No doubt tuition will have to be raised to help pay the cost of the settlement.  Exorbitant settlements have far-reaching effects on many people quite remote from the cause of action.

While the present state of affairs calls for tort reform, such legislation is being held up in the Senate, since, as one Congressman stated, “Trial lawyers raise a lot of money” and effectively lobby against reform.  Once again, self interest is trumping the common good.  Can a Christian lawyer whose profession is also a vocation given by God for community service allow this to continue?  The answer is no, since it challenges the lawyer’s personal ethics and is destructive of the intermediate communities which are vital to republican government and to the welfare of human persons in society as a whole.  While it is the job of attorneys to protect society from predators and the inept, it is a violation of their oath before the bar and in the court of God to destroy the institutions God has created for humankind’s bodily, intellectual and spiritual welfare.  Christian lawyers must, first of all, examine their own motives in clergy abuse cases – do they stem from greed or a desire to put the churches, along with their schools, hospitals and other charitable organizations out of business?  Finally, Christian lawyers should join together in prescribing caps on settlements for the proven damages suffered by individuals.  This initiative may well restore the image of lawyers, enable the Church to reform itself, and work constructively for the common good.

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