Clergy negligence and malpractice claims require that a determination be made early on as to whether or not the victim has the stamina to proceed with such a claim.
One of the first issues that needs to be addressed after determining to proceed with the claim is whether or not the claim may be barred by the statute of limitations. Some states have tolled the statute of limitations where there is evidence that the wrongdoer has in any way fraudulently concealed the abuse. If that circumstance exists, then the statute of limitations may not have expired.
Another defense frequently asserted is a constitutional defense premised upon the separation of church and state. Most courts have rejected that defense on the theory that these claims do not involve the state trying to regulate church behavior but rather involve simply the employer/employee relationship.
In terms of framing a lawsuit based upon clergy negligence or abuse, it is important that the pleading not reference church doctrine or policy. The state has no authority under the U. S. Constitution to regulate church doctrine or policy. Likewise, these claims should not be framed as malpractice claims but rather simply as what they are, i.e. either abuse or negligence claims.
The doctrine of vicarious liability, may be the linchpin of the case. It needs to be carefully framed within the suit papers initiating the lawsuit. Typically the abusive relationship is something that is cultivated by the abuser. It is cultivated by the abuser by developing a relationship with the victim that may have been initially motivated by a desire on the part of the abuser to fulfill his church related duties. In that context the church owes a duty to prevent foreseeable harm, including intentional acts, given the fact that the relationship arose in the course of employment with the church. Another way to look at the circumstance is that the church is the one that entrusted the victim to the abuser and that imposes a certain duty on the church to protect the victim. The Restatement of Torts (Second) §317 indicates that under certain circumstances an employer has a duty to exercise reasonable care to control an employee even though the employee may be acting outside the scope of the employment. That rationale may apply to these types of cases.
Within the Catholic Church, Canon 489 provides for a secret archive of certain documentation that may be maintained by a diocese. It is important that inquiry be made as to what is in that secret archive to the extent that it may relate to your claim. Likewise any communications between the abuser and his supervisor, whether it be a bishop or otherwise, should be fully explored. As long as these documents are not protected by the clergy-communicant privilege, then they should be subject to disclosure. Likewise, any treatment records of the offender that have been disclosed to the church may be subject to disclosure on the grounds that any privilege has been waived.
If you or a loved one have been abused or injured as a result of clergy negligence and malpractice contact Brien Roche, serving the Fairfax, Virginia and D.C. area for over 40 years.