JOSEPH E. ENGLISH & another, [Note 1] guardians, [Note 2] vs. NEW ENGLAND MEDICAL CENTER, INC., & others. [Note 3]

O'CONNOR, J. This is a medical malpractice case arising out of treatment rendered to Kerrie Ann English by two physicians at the defendant's hospital. The jury returned verdicts in favor of the physicians, who were originally defendants, but against the hospital, and assessed damages in the amount of $350,000. In response to the hospital's motion, the trial judge reduced the award to $20,000 pursuant to G. L. c. 231, Section 85K (1986 ed.). On appeal, the plaintiffs challenge the reduction of the verdict as violating the equal protection and due process clauses of the Massachusetts and United States Constitutions and the trial by jury guarantee of art. 15 of the Declaration of Rights of the Massachusetts Constitution. We transferred the case to this court on our own initiative. [Note 4]

This court adopted the doctrine of charitable immunity in 1876. In McDonald v. Massachusetts Gen. Hosp., 120 Mass. 432, 436 (1876), we held that Massachusetts General Hospital, a public charity, would not be liable to one injured by the negligence of agents of the hospital. The court reasoned that the

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hospital held its funds in trust for the benefit of the public, and that it would be an unlawful diversion of those funds to apply them to the satisfaction of a judgment based on the negligence of hospital agents. Id. at 435-436. See Roosen v. Peter Bent Brigham Hosp., 235 Mass. 66, 69 (1920). Following our decision in McDonald v. Massachusetts Gen. Hosp., supra, we consistently applied the charitable immunity doctrine to hospitals and other charitable organizations until G. L. c. 231, Section 85K, became effective on September 16, 1971. St. 1971, c. 785. See, e.g., Ricker v. Northeastern Univ., 361 Mass. 169, 172 (1972) (private university); Boxer v. Boston Symphony Orchestra, Inc., 342 Mass. 537, 538-541 (1961) (symphony orchestra); Carpenter v. Young Men's Christian Ass'n, 324 Mass. 365, 369 (1949) (association promoting moral, mental, and physical welfare of young men); Reavy v. Guild of St. Agnes, 284 Mass. 300, 302 (1933) (temporary shelter provided to needy women and children).

In Simpson v. Truesdale Hosp., Inc., 338 Mass. 787, 787-788 (1958), the plaintiff urged us to overrule McDonald v. Massachusetts Gen. Hosp., supra. We declined, noting that "[w]hile as an original proposition the doctrine might not commend itself to us today, it has been firmly imbedded in our law for over three quarters of a century and we think that its `termination should be at legislative, rather than at judicial, hands' (citations omitted)." Later, in Colby v. Carney Hosp., 356 Mass. 527, 528 (1969), we again observed that any renunciation of the charitable immunity doctrine would be best accomplished by legislative action. However, on the assumption that legislative action would be unlikely in the near future, we announced our intention to abolish the doctrine "the next time we [were to be] squarely confronted by a legal question respecting [it]." Id. In 1971, after our decision in Colby, the Legislature enacted G. L. c. 231, Section 85K. Section 85K abolishes the doctrine of charitable immunity, and limits the liability of charitable institutions to $20,000 if the tort was committed in the course of an activity carried on to accomplish the purpose of the charitable organization.

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In Colby, supra, the defendant in its answer had advanced charitable immunity as a defense. The plaintiff demurred, contending that the doctrine violated the Federal and Massachusetts Constitutions. We affirmed the judge's overruling of the demurrer, saying that "[n]othing ha[d] been brought to our attention suggesting that the doctrine of charitable immunity is repugnant to any provision of the Constitutions of the United States and the Commonwealth." Id. at 528. The plaintiffs now challenge the constitutionality of the $20,000 statutory cap. Consistently with our statement in Colby, which at least suggested that the doctrine of charitable immunity is constitutional, we hold today that the statutory cap also is constitutional. We are not without misgivings about the paltriness of the $20,000 cap, especially in light of the decline in the value of the dollar since 1971, but we cannot correctly declare the statute to be unconstitutional. A change in the amount of the cap may be appropriate but that is a legislative decision. [Note 5] We affirm the judgment below.

The plaintiffs challenge Section 85K as violating their right to a jury trial guaranteed by art. 15. It does not. The right to a jury trial does not grant to a party the right to put to a jury any question he or she wishes. Rather, the right to a jury trial means that, with respect to those questions of fact that the substantive law makes material, the party has the right to have the determination made by a jury. See Karlowski v. Kissock, 275 Mass. 180, 182 (1931); Bothwell v. Boston Elevated Ry., 215 Mass. 467 (1913). No question material to the plaintiffs' cause of action was withdrawn from the jury. Under the substantive law of torts of this Commonwealth, charitable organizations are not liable for personal injuries in excess of $20,000, and therefore the plaintiffs had no right to a jury determination of damages in excess of that amount. Pinnick v. Cleary, 360 Mass. 1 (1971), is on point. In Pinnick, we held that, although the no-fault automobile insurance statute, St. 1970, c. 670,

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eliminated an individual's right to damages for pain and suffering unless his or her medical expenses were at least $500, [Note 6] or the injuries were of a particular kind, the statute did not violate the jury trial guarantee of art. 15. Id. at 31.

The case of Johnson v. St. Vincent Hospital, Inc., 273 Ind. 374 (1980), like the present case, raised the question whether the imposition of a cap on damages violates a right to jury trial provided by a State constitution. Although the cap in that case was $500,000, the principle involved is the same. In rejecting the plaintiffs' argument that the limitation on damages violated their jury trial rights, the Supreme Court of Indiana reasoned that "[t]he Legislature may terminate an entire valid and provable claim through a statute of limitation. It may validly cause the loss of the right to trial by jury through failure to comply with the requirement to assert the right by procedural rule. It is the policy of this Act that recoveries be limited to $500,000, and to this extent the right to have the jury assess damages is available. No more is required by Art. I, Section 20, of the Indiana Constitution in this context." Id. at 401. Similarly, art. 15 guaranteed the plaintiffs' right to have the jury assess damages up to $20,000, but nothing more. Thus, there was no infringement of the plaintiffs' right to jury trial.

We turn our attention to the plaintiffs' other contentions, namely, that Section 85K violates their rights to equal protection and substantive due process by impermissibly infringing on "the personal, substantive right of a tort victim to recover damages." We have repeatedly said that those who challenge the constitutionality of a statute that does not burden a suspect group or a fundamental interest "carry a heavy burden in seeking to overcome the statute's presumption of constitutionality." Blue Hills Cemetery, Inc. v. Board of Registration in Embalming & Funeral Directing, 379 Mass. 368, 371 (1979), quoting American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., 374 Mass. 181, 190 (1978).

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Klein v. Catalano, 386 Mass. 701, 706-707 (1982).

The statute at issue does not burden a suspect group, and "the personal, substantive right of a tort victim to recover damages" is not a "fundamental interest." For purposes of equal protection analysis under the Federal and State Constitutions, our opinions declare that, "[a]bsent a showing that a statute burdens a suspect group or fundamental interest, it will be upheld as long as it is rationally related to the furtherance of a legitimate State interest." Dickerson v. Attorney Gen., 396 Mass. 740, 743 (1986). Klein v. Catalano, supra at 715. The statute "only need[s] be supported by a conceivable, rational basis." Fine v. Contributory Retirement Appeal Bd., 401 Mass. 639, 641 (1988). Nonetheless, the plaintiffs urge us to employ a third, intermediate level of scrutiny, one that is less strict than is appropriate to determine the constitutionality of a statute that burdens a suspect class or fundamental interest but stricter than the "rational basis" test. See Paro v. Longwood Hosp., 373 Mass. 645, 649 n.6 (1977). Under such a third level of review, the plaintiffs tell us, quoting Reed v. Reed, 404 U.S. 71, 76 (1971), the court must determine whether the classifications created by the statute are "reasonable, not arbitrary" and "rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." Quoting Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 320 (1970) (Marshall, J., dissenting), the plaintiffs say that the court should make its determination "only after a reasonably probing look at the legislative goals and means, and at the significance of the personal rights and interests invaded."

We agree with the plaintiffs that equal protection analysis requires the court to look carefully at the purpose to be served by the statute in question and at the degree of harm to the affected class. We have observed that characterizing the tests to be applied to determine the constitutional validity of legislation as "reasonable relation" and "strict scrutiny" is a "shorthand for referring to the opposite ends of a continuum of constitutional

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vulnerability determined at every point by the competing values involved." Marcoux v. Attorney Gen., 375 Mass. 63, 65 n.4 (1978). However, our acceptance of that method of analysis does not require us to adopt a third level of review. The rational basis test "includes a requirement that an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class." Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 452 (1985) (Stevens, J., concurring). In connection with such an analysis, the significance of a limitation of $20,000 on recovery against charities for personal injuries is a relevant factor.

The plaintiffs' equal protection attack is twofold. They argue that (1) Section 85K has no legitimate purpose, and (2) even if Section 85K has a legitimate purpose, the means chosen by the Legislature to accomplish the objective bear no rational relation to it. The objective of Section 85K clearly is to protect the funds of charitable institutions so they may be devoted to charitable purposes. That objective is just as clearly legitimate. If a charity's property were "depleted by the payment of damages its usefulness might be either impaired or wholly destroyed, the object of the founder or donors defeated, and charitable gifts discouraged." St. Clair v. Trustees of Boston Univ., 25 Mass. App. Ct. 662, 666 (1988), quoting Farrigan v. Pevear, 193 Mass. 147, 149 (1906). The plaintiffs argue that the protection of charitable organizations' property against judgments in personal injury actions is not a legitimate objective because the availability of insurance, the "Universal Health Care Bill," the institution of malpractice tribunals pursuant to G. L. c. 231, Section 60B (1986 ed.), modification of the collateral source rule pursuant to G. L. c. 231, Sections 60F, 60G, and 60H (1986 ed.), and the Statewide uncompensated care pool to reimburse hospitals for services rendered to nonpaying emergency room patients pursuant to G. L. c. 6A, Section 75 (1986 ed.), make statutory protection, at least as to hospitals, unnecessary. However, the availability of these sources of protection of charitable funds is not inconsistent with a legislative purpose to provide still further protection.

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The plaintiffs also argue that the discrimination between the victims of charitable tortfeasors and other victims, between the seriously injured victims of charitable tortfeasors and those with minor injuries, between "wealthy" charities and impoverished ones, and between charities and noncharities, wrought by Section 85K, cannot be viewed as a rational means of accomplishing the legislative objective, even if the objective is considered legitimate, of protecting charitable funds. The plaintiffs emphasize the low amount of the statutory cap, arguing that frequently the expenses involved in litigating a serious personal injury negligence case against a hospital may far exceed the allowable recovery. Nevertheless, while we acknowledge the validity of the plaintiffs' assertion, it is not the court's prerogative to determine whether a more equitable distribution of the burden of negligently inflicted personal injuries could be devised. We cannot say that there is no rational relationship between Section 85K's cap on damages and the statute's legitimate objective of preserving charitable assets. See Hearn v. Massachusetts Bay Transp. Auth., 389 Mass. 404, 406 (1983).

The plaintiffs' final argument is that Section 85K offends their substantive due process rights by failing to provide an adequate substitute for the common law right to recover full compensation for negligently inflicted personal injuries. In cases such as this, where the right infringed on is not a "fundamental" right, we have stated that the question under the due process clause of the Federal Constitution is "whether the statute bears a reasonable relation to a permissible legislative objective," Pinnick v. Cleary, supra at 14, and, under the analogous provisions of the State Constitution as whether the statute "bears real and substantial relation to public health, safety, morals, or some other phase of the general welfare." Blue Hills Cemetery, Inc. v. Board of Registration in Embalming & Funeral Directing, supra at 373, quoting Sperry & Hutchinson Co. v. Director of the Div. of the Necessaries of Life, 307 Mass. 408, 418 (1940). Citing Decker v. Black & Decker Mfg. Co., 389 Mass. 35, 43 (1983), and Klein v. Catalano, 386 Mass. 701 (1982), the plaintiffs argue that "[i]f no substitute remedy is supplied, then the abrogation [of the common law right] must

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be rationally related to a permissible legislative objective." In addressing the plaintiffs' equal protection argument, we determined that Section 85K is rationally related to a permissible legislative objective. Further discussion is not required. We conclude that Section 85K does not offend the plaintiffs' due process rights.

Judgment affirmed.