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rejecting argument that doctor's alleged fraud was outside scope of his employment because he was not hired to commit fraud, and observing that Massachusetts law recognizes employer liability for employees' negligence and intentional torts
Summary of this case from Cohne v. Navigators Specialty Ins. Co.Opinion
Civil Action No. 05-12251-GAO.
July 19, 2006
MEMORANDUM AND ORDER
The plaintiffs, Carole and Richard Mangino, brought a claim fraud against the East Boston Neighborhood Health Center ("EBNHC"), Christine Cary, M.D. and Anne Guenzel, M.D. ("the Doctors"). The plaintiffs claim that the Doctors fraudulently edited their notes to wrongfully allege that Mr. Mangino refused lab tests that, if conducted, would have revealed an infected kidney stone. As a result of the alleged fraud, the plaintiffs claim they were unable to procure an attorney to file a medical malpractice claim within the limitations period and were damaged by the loss of a viable cause of action.
The United States was substituted as the sole defendant pursuant to 28 U.S.C. § 2679(d)(1), (2) and 28 C.F.R. § 15.4., and, accordingly, the case was removed from the Massachusetts Superior Court. The plaintiffs object to the substitution and have filed a Motion for Re-Substitution, claiming that the Doctors' fraud could not be considered to have been done within the scope of their employment under 28 U.S.C. § 2679(d)(1), (2) and 28 C.F.R. § 15.4. For the reasons discussed below, the plaintiffs' contention is without merit, and their Motion for Re-Substitution is denied.
I.
On October 16, 2001, Richard Mangino visited EBNHC on a walk in basis and was examined by Dr. Cary regarding his complaints of flu-like symptoms and frequent urination. Dr. Cary determined the symptoms were most likely viral, but ordered an urinalysis to check for an urinary tract infection, which was ruled out when the test results came back negative. Mr. Mangino was told to rest, to treat any pain with Tylenol, and to schedule a follow up visit, if needed. On November 15, 2001, Mr. Mangino returned to EBNHC complaining of the same symptoms. Dr. Carey again found no symptoms of a bacterial infection and advised Mr. Mangino to rest.
On March 8, 2002, Mr. Mangino returned to EBNHC and was examined by Dr. Guenzel for the same flu-like symptoms. According to Dr. Guenzel's notes, Mr. Mangino's visit was "difficult" and he allegedly refused a number of lab tests. Most of the evaluation was spent addressing Mr. Mangino's chronic insomnia and erectile dysfunction, for which Dr. Guenzel gave him prescriptions.
Two days later, Mr. Mangino was taken to Union Hospital in Lynn for medical treatment, and he was subsequently transferred to Massachusetts General Hospital in Boston ("Mass General"). The following day it was determined that Mr. Mangino had an infected and obstructing kidney stone. Mr. Mangino remained at Mass. General until April 29, 2002, when he was transferred to the Spaulding Rehabilitation Center where, on July 29, 2002, both his arms, up to the elbow, and both his legs, up to the knee, were amputated.
The plaintiffs made an unsuccessful attempt to hire an attorney to file suit against the Doctors for medical malpractice. The plaintiffs supplemented their motion with a letter from an attorney who declined to represent them because the Doctors' medical records, stating that Mr. Mangino refused treatment, was "an enormous evidentiary obstacle." Pls.' Mem. Supp. Mot. for Re-Submission, Ex. A). The attorney acknowledged that Mr. Mangino denies that he in fact refused treatment, as the Doctors' notes indicate, but said that he was unwilling to accept the case because it would hinge on the jury's believing that Dr. Guenzel's notes were intentionally false.
On May 5, 2005 the plaintiffs filed a complaint in Massachusetts Superior Court against EBNHC and the Doctors, alleging that the Doctors failed to properly evaluate, diagnose and treat Mr. Mangino and that the Doctors fraudulently generated false paperwork to obstruct his medical malpractice claim. Further, as a result of the Doctors' alleged fraud, he asserted that he had been unable to hire a lawyer to file a medical malpractice claim within the limitations period. On November 10, 2005, the United States Attorney for the District of Massachusetts certified that the Doctors were acting within the scope of their employment as employees of the United States at the time of the incidents out of which the plaintiffs' state law claims arose, and therefore that the action should be deemed an action against the United States. Accordingly, the United States filed notice and was substituted as the sole defendant. See 28 U.S.C. § 2679(d)(1), (2); 28 C.F.R. § 15.4. The case was then removed to this court, and on January 5, 2006, the plaintiffs filed their Motion for Re-Substitution supported by a memorandum and an affidavit of Richard Mangino.
II.
The Westfall Act ( 28 U.S.C. § 2679) was intended to grant federal employees absolute tort immunity in response to the Supreme Court's limitation of such immunity in Westfall v. Erwin, 484 U.S. 292 (1988). See Melo v. Hafer, 13 F.3d 736,744-46 (3rd Cir. 1994); see also Perry v. United States, 936 F. Supp. 867, 872 (S.D. Ala. 1996). "Federal employee tort immunity has a public, not a private, objective, namely the need for public employees faithfully to discharge their duties." See Wood v. United States, 995 F.2d 1122, 1126 (1st Cir. 1993). Federal employees can pursue their duties with "vigor [and enthusiasm]" knowing the United States will be substituted in a tort action. See id. However, certification from the United States Attorney under 28 U.S.C. § 2679(d)(1), (2) does not conclusively establish that the United States should be substituted as the sole defendant. See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434-37 (1995). The certification is subject to judicial review, and "[u]pon a showing that the employee was acting outside the scope of employment, as determined by the applicable state law, that employee may be re-substituted." See Davric Maine Corp. v. United States Postal Serv., 238 F.3d 58, 65 (1st Cir. 2001) (citing Aversa v. United States, 99 F.3d 1200, 1208 (1st Cir. 1996)). The plaintiffs have the burden of proof to establish that the Doctors were acting outside the scope of their employment. See Day v. Massachusetts Air Nat'l Guard, 167 F.3d 678, 685 (1st Cir. 1999); Lyons v. Brown, 158 F.3d 605, 610 (1st Cir. 1998).Under Massachusetts law, which governs the plaintiffs' claims, an employee's conduct is within the scope of his employment if (1) "it is the kind he is employed to perform;" (2) "it occurs substantially within the authorized time and space limits;" and (3) "it is motivated, at least in part, by a purpose to serve the employer." See Wang Labs, Inc. v. Bus. Incentives, Inc., 501 N.E.2d 1163, 1166 (Mass. 1986) (citations omitted); Restatement (Second) of Agency § 228. The Supreme Judicial Court has stated that, "[t]he scope of the employee's employment is not construed restrictively." See Howard v. Town of Burlington, 506 N.E.2d 102, 105 (Mass. 1987). In Howard the SJC stated that the scope of a public employee's employment under Mass. Gen. Laws ch. 258, § 9 (the state analogue to the Federal Tort Claims Act) is determined by general respondeat superior principles; expressly declining to adopt a more narrow standard. See id. at 106. Therefore, the substitution of the United States in the present case depends on whether, under general principles of agency as applied in Massachusetts, the Doctors' alleged fraud would be regarded as having occurred within the scope of their employment. See id.
The plaintiffs argue that "[t]he alleged conduct of the individual defendants, in claiming that testing was offered to the plaintiff, which plaintiff denies occurred, and documenting same in the written record to protect defendant doctors from a medical malpractice claim, is not the type of conduct the doctors are employed to perform and in no way is motivated, even in part, by a purpose to serve the employer." Mem. in Supp. at 4; see Wang Labs, 501 N.E.2d at 1166. However, it is a long-standing principle of Massachusetts common law that an employer may be liable for the fraudulent acts of their employees, even when the fraud was committed for the employee's personal benefit. See Bockser v. Dorchester Mut. Fire Ins. Co., 99 N.E.2d 640, 642 (Mass. 1951); see also Restatement (Second) of Agency § 249 ("A master is subject to liability for the misrepresentations of a servant causing pecuniary loss as he is for the misrepresentations of an agent who is not a servant.").
Under the plaintiffs' view, an employer would only be held liable if an employee was authorized to engage in tortious conduct in service of the employer's interests. But, of course, though employers rarely authorize persons to be negligent, nevertheless the law clearly recognizes employer liability for the negligent acts of employees. See Dias v. Brigham Med. Assocs., 780 N.E.2d 447, 452 (2002); Roach v. Hinchcliff, 101 N.E. 383, 386-87 (Mass. 1913). Nor is there any automatic distinction between negligence and intentional torts, such as fraud. In fact, Massachusetts has recognized employer liability for intentional torts. See Manning v. Grimsley, 643 F.2d 20, 24-25 (1st Cir. 1981) (professional baseball team could be liable for pitcher throwing a baseball at heckling fan); Suckney v. Bert P. Williams, Inc., 242 N.E.2d 416, 417-18 (Mass. 1968) (holding carrier liable for truck driver's helper's unprovoked assault with a pipe on a bystander).
Keeping medical records was the sort of conduct the Doctors were hired to perform, and, if they did so fraudulently, then their employer, the United States, could be liable for their actions. Therefore, the plaintiffs' Motion for Re-Substitution is denied because they have failed to satisfy their burden of showing that the Doctors were acting outside the scope of their employment as employees of the United States.
It is SO ORDERED.