Opinion
14-P-986
07-07-2015
HARRY SOBA v. THOMAS R. PATNAUDE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Harry Soba, brought an action against Dr. Thomas R. Patnaude, the Medical Director of the Worcester County House of Correction, alleging that Soba had received substandard medical care during his incarceration there., A judge of the Superior Court allowed Patnaude's motion for summary judgment on the ground that Patnaude was immune from suit as a public employee. See G. L. c. 258, § 1, 2. Soba appeals from the ensuing judgment, arguing that Patnaude's employment status was a question of fact for the jury. We agree.
Soba's complaint charged Patnaude with common law medical malpractice; another count alleged that Patnaude's deficient medical care violated Soba's civil and constitutional rights under 42 U.S.C. § 1983.
In his complaint, Soba alleged that he had sustained massive tissue loss and disfigurement of his left leg due to Patnaude's failure to treat an infection. The complaint described a list of events beginning with Soba's incarceration on October 11, 2007. Soba first complained of pain on October 17; thereafter, he was treated only by nurses and other medical staff, who consulted with Patnaude by telephone, until he was taken to the jail infirmary on October 23. Soba was then transferred to a local hospital where he was "found to be suffering from 'sepsis; pneumonia; cellulitis; necrosis, and a massive abscess in the left leg above the knee; cavitary lesions in the chest; scrotal edema; and deep venous thrombosis of the lower left leg."
Soba did not appeal from the summary judgment dismissing his civil rights claim.
It is undisputed that Patnaude was employed by the Worcester County Sheriff's Office (sheriff), working parttime (a varied two or three days each week, as needed) as the Medical Director of the Worcester County House of Correction, and that he received employment benefits from the Commonwealth. At the same time, Patnaude also maintained a private medical practice called Worcester Internal Medicine Associates.
Patnaude was entered on the Commonwealth's payroll, receiving a W-2 tax form at the end of each year, and was enrolled in the Commonwealth's group life insurance program and with the State Retirement Board. He also received and acknowledged various policies issued by the sheriff's office, including a policy relating to general health care services.
As medical director at the prison, Patnaude held the highest medical position and was responsible for the direct care of inmates, including routine and emergency treatment. He also was responsible for the supervision of subordinate medical staff, including nurse practitioners, physician's assistants, and registered and licensed practical nurses, to insure proper medical treatment. Patnaude was required to maintain appropriate medical records on each patient. He also was entitled to participate in the hiring and review of medical staff. He gave medical orders to medical staff members, and was required to be available on call twenty-four hours per day, seven days per week. Patnaude reported directly to the sheriff and the two deputy sheriffs; he was not subject to collective bargaining.
In addition, Patnaude exercised independent judgment in making medical treatment decisions regarding the inmates. He testified he was "free to treat [inmates] appropriately" with "no direct treatment restrictions" from prison officials. In fact, there was no medical supervision of Patnaude's medical decisions whatsoever. His work in the infirmary varied, depending upon the number of inmates needing his services in any given week; he worked with the medical staff to determine what days he needed to be present, but he also was able to dispense medical directives to the staff by telephone, as he did in this case. Patnaude also arranged personally for physician coverage from his private practice when he took a vacation. It appears from this record, that those activities were not subject to any supervision, nor did they require approval from any prison official.
According to Patnaude's deposition testimony elicited in an unrelated case (Ramos v. Former Sheriff of Worcester County John M. Flynn, U.S.D.C. No. 06-10645), he consulted with the medical staff to determine the days and times he should be present in the infirmary.
Patnaude claims that his work and vacation schedules were determined by the sheriff's office; there is nothing in this record to support that assertion. In addition, Patnaude asserts that he had no authority to refuse to treat certain patients, and that medical staff and prison officials instructed him as to the patients needing his attention. However, this statement is misleading. It is true that Patnaude could not pick and choose which inmates he would treat; he was required to treat any inmate seeking medical attention. In some instances, the medical staff would alert Patnaude, or make a recommendation, that certain inmates specifically required his services; it is unclear whether Patnaude was required to adopt such recommendations or whether he was permitted to direct a medical staff member to carry out the treatment he prescribed. Contrary to Patnaude's contentions, it appears that he regularly made independent decisions as to the day-to-day treatment of inmate patients, and he acknowledged that he could order outside hospitalization without intervention, or prior approval, from prison officials.
Patnaude refers in the record to his deposition transcript and affidavit, and the affidavits of two employees from the sheriff's office, filed in an unrelated case.
Discussion. "An appellate court reviews the allowance of a motion for summary judgment de novo and considers 'the record and the legal principles involved without deference to the' reasoning of the motion judge." Bardige v. Performance Specialists, Inc., 74 Mass. App. Ct. 99, 101-102 (2009) (citations omitted). "In reviewing the judge's allowance of summary judgment, this court must view the materials in the light most favorable to the nonmoving party to determine whether all material facts have been established, and whether the moving party is entitled to judgment as a matter of law." Id. at 102; See Mass.R.Civ.P. 56(c). "Any doubts as to the existence of a genuine issue of material fact are to be resolved against the party moving for summary judgment." Kitras v. Zoning Administrator of Aquinnah, 453 Mass. 245, 251 (2009).
"[W]hether a person is a 'public employee' [is a question of fact.] 'The basic question is whether a person is subject to the direction and control of a public employer.' Smith v. Steinberg, 395 Mass. 666, 667 (1985). See G. L. c. 258, § 1. In the specific case of a physician, we examine whether a public employer directs and controls the physician's treatment of the patient. See id. at 669. See also Hopper v. Callahan, 408 Mass. 621, 634 (1990). A physician is not necessarily a public employee simply because a public entity pays his or her salary, provides a retirement fund, or manages a vacation schedule. In fact, (the Supreme Judicial Court has) noted that 'the very nature of a physician's function tends to suggest that in most instances [the physician] will act as an independent contractor,' not a public employee. Kelley v. Rossi, 395 Mass. 659, 662 (1985)." Williams v. Hartman, 413 Mass. 398, 400-401 (1992).
In Williams, the plaintiff had filed a complaint, alleging negligence and wrongful death in connection with the death of her daughter, who was a patient at the Solomon Carter Fuller Mental Health Center, operated by the Department of Mental Health. Id. at 400. The court agreed with the motion judge that, based on the testimony of the defendant's supervisor, there was a dispute of material fact requiring determination by a trier of fact. Id. at 401. The supervisor testified that the defendant established his own work schedule; that neither the supervisor nor anyone else at the hospital "controlled or directed the defendant's day-to-day activities"; and that "the defendant alone made the medical decisions in connection with the treatment of his patients." Ibid.
The cases before Williams, are not entirely consistent. One of the earliest is Florio v. Kennedy, 18 Mass. App Ct. 917, 918 (1984), a rescript opinion from this court on which the motion judge principally relied. In that case, "[t]he defendant was employed as a physician . . . by the hospital, a facility of the Department of Mental Health. . . . He was paid a fixed weekly salary by the Commonwealth as a permanent employee and his compensation was drawn from the Commonwealth's 01 salary account. He was a participant in the contributory retirement plan and the Blue Cross/Blue Shield medical insurance plan offered to employees of the Commonwealth. He was assigned an office at the hospital and was available to patients on a twenty-four hour basis. He worked a minimum of forty hours per week. . . . [T]he defendant did not treat private patients and attended only those patients assigned to him by the hospital. The treatment allegedly received by the plaintiff's decedent from the defendant was administered while he was a patient at the hospital." Id. at 918, 919.
In response, the plaintiff submitted only "an affidavit of a doctor which stated that 'the actual performance of [any physician's] professional medical duties are within the discretion of the physician and under his control. That affidavit not only did not allege specific facts but stated an ultimate fact and a conclusion of law.'" As a result, we concluded that "the affidavit cannot be used to defeat summary judgment." Ibid.
In Kelley v. Rossi, 395 Mass. 659, 662 (1985), the court stated that while the "cases have not adopted the position that a physician is always an independent contractor [,] . . . [i]t is true, . . . that the very nature of a physician's function tends to suggest that in most instances he will act as an independent contractor. Another person, unless a physician himself, would have no right (or desire) to exercise control over the details of the physician's treatment of a patient; the profession is distinct and requires a high level of skill and training; and the physician must use independent judgment." Id. at 662-663.
In Kelley, the court concluded that the doctor in question, as a resident, whose activities were supervised by other doctors, clearly was the servant of the hospital; the issue in that case was which hospital controlled her activities -- the public or the private employer. Id. at 665.
In Smith v. Steinberg, 395 Mass. 666 (1985), the court affirmed the motion judge's denial of the defendant's motion for summary judgment, stating that "[t]he circumstances of this case present quite a different picture of the defendant physician's role in relation to his employer from that presented in the Kelley case. The defendant is an associate professor of orthopedic surgery at the University of Massachusetts Medical School and director of its orthopedic residency program, responsible for all aspects of postgraduate orthopedic education." 395 Mass. at 667. The court suggested, that on that summary judgment record, summary judgment for the plaintiff on the issue of whether "the doctor as a 'public employee' [was directed and controlled] by a 'public employer'" might have been appropriate, although the plaintiff had not requested it and the issue was not before the court. Id. at 669.
The Supreme Judicial Court also concluded that "[t]he defendant had control (outside of his instructional duties at the medical school) over his hours of work, where he worked, and which patients he would treat, taking them directly or by referral from other physicians. He was thus free to practice medicine as he wished, subject to his teaching obligations, but as a member of the group practice plan all his billings were to be made through the plan." Id. at 669. The defendant "first saw the plaintiff administrator's decedent at a family health center in Worcester on referral from another physician. He treated the patient in his role as a member of the group practice and not pursuant to any academic function." Ibid.
The present case falls somewhere in between Kelley and Smith and, on balance, seems more like Williams, 413 Mass. at 398, than some of the earlier cases. One common thread in each of those cases is that the physicians worked in a hospital setting, subject to direct medical supervision of the physician's activities. While that consideration may not be dispositive, it is a factor that should be given significant weight.
As to the conditions of his employment, while Patnaude could not refuse to treat a patient, he was free, as he did in this case, to delegate the patient's care to the medical staff and consult only by telephone. While he received a salary and received various employee benefits, he himself determined, after consulting with the medical staff, what hours were necessary and when he would be present at the house of correction. While he was responsible to the sheriff and his deputies, and obliged to follow any policies they set, the record does not reveal any constraints on his ability to order certain treatments or prescribe medications and, indeed, Patnaude acknowledged that he was free to transfer patients for other care without seeking prior approval.
Viewing the record, as we must, in the light most favorable to Soba, we cannot conclude that the sheriff or his deputies at the Worcester County House of Correction directed or controlled Patnaude's treatment of his inmate patients so as to make him a "public employee" under G. L. c. 258. See Kelley v. Rossi, 395 Mass. at 661; Smith v. Steinberg, 395 Mass. at 669; Williams v. Hartman, 413 Mass. at 401. The defendant's motion for summary judgment should have been denied.
Judgment vacated.
By the Court (Kantrowitz, Kafker & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 7, 2015.