Number 2. July 21, 1976

Number 2. July 21, 1976 Vahan Vartanian Major General, Mass ARND The Adjutant General 905 Commonwealth Avenue Boston, Massachusetts 02215 Dear Major General Vartanian: You have requested my opinion on several questions concerning the protection against liability of military medical personnel in the Massachu- setts National Guard when they provide medical services or treatment while serving on either mandatory annual field service training duty (G.L. z. 33, §60), or the required shorter training drills held throughout the year (G.L. c. 33, §61 ). Specifically you ask: 1. In the case of Massachusetts National Guard medical person- nel treating other military members of the Massachusetts National Guard, does there exist any right by the treated military person to maintain an action for alleged medical malpractice against the Massachusetts military medical personnel. 2. In the event that your answer is in the affirmative, does the Massachusetts military medical personnel have any protection under Massachusetts laws and the right to a defense by the Office of the Attorney General. 3. In the case of Massachusetts National Guard medical person- nel treating military members of the National Guard who are not members of the Massachusetts National Guard (i.e., 43rd Brigade, Connecticut National Guard and 1-26 Cavalrv. Rhode P.D. 12 75 Island National Guard) and members of active U.S. Forces, does that non-Massachusetts military member of the National Guard or member of active U.S. Forces have the right to maintain an action for alleged medical malpractice against the Massachusetts military medical personnel. 4. In the event that your answer is in the affirmative, does the Massachusetts National Guard medical personnel have any legal defense under Massachusetts laws and the right to a defense by the Office of the Attorney General. 5. In the case of Massachusetts National Guard military medical personnel providing medical service or treatment to civilians, either Massachusetts residents or non-Massachusetts residents on either emergency or routine basis, does the civilian in any case have a right to maintain an alleged malpractice action against the Massachusetts military medical personnel and does the Massachusetts military medical personnel have any defense under Massachusetts laws and the right to a defense by the Office of the Attorney General. I will respond to your questions first by considering the liability of the Guard's military medical personnel to each of the three classes of persons you mention in questions 1, 2 and 5. I will then discuss the issue of legal representation of the military medical personnel by the Attorney General. 1. It is my opinion that a military member of the Massachusetts Na- tional Guard does not have a right to maintain an action against a fellow member of the Guard for injuries resulting from medical treatment or services rendered by the latter during the Guard's mandatory training periods. A well-established principle of military law provides that a soldier in the armed forces is not liable to another soldier for acts of negligence performed in the line of duty. £".,!?. Feres v. United States, 340 U.SM35, 141-42 (1950); Hass for the use of United States v. United States, 518 F. 2d 1138, 1143 (4th Cir. 1975); Mattos v. United States, 412 F. 2d 793. 794 (9th Cir. 1969) ; Roach v. Shields, 371 F. Supp. 1392. 1393 (E. D. Pa. 1974); contra, Mazurek v. Skaar, 60 Wis. 2d 420. 210 N.W. 2d 691, 694 (1973). 1 This rule has been applied specifically to acts of alleged negligent medical malpractice. See, e.g., Bailey v. Van Buskirk, 345 F.^2d 298 (9th Cir. 1965). cert, denied, 383 U.S. 948 ( 1966) ; Bailey v. DeQuevedo, 375 F. 2d 72, 73-74 (3rd Cir.), cert, denied, 389 U.S. 923 (1967); Roach v. Shields, supra. iThe protection afforded by this rule appears to apply only to negligent acts performed in the line or course of duty. See Roach v. Shields, supra. Wilful, wanton or malicious acts of a military officer are not within the scope of the rule, and the officer could be sued by a fellow member of the force for injuries arising from such acts. See, f.?.. Crozman v. Callat>han. 135 F. Supp. 466 (W. D. OkJa. 1955): Wilkes v. Dinsmore. 7 How. 89. 130 (1849). See also, Gildea v. Ellershaw, 363 Mass. 800, 824 (1973) ( immunity for non-judicial public officers' negligent actions within their discretionary powers, but not for acts of misfeasance or those made in bad faith); but see Gamadge v. Peal. 217 F. Supp. 384. 390 (N.D. Cal. 1962). 76 P.D. 12 There are no Massachusetts decisions that have specifically considered or adopted this rule. However, in light of the rule's widespread acceptance, Feres, supra at 141 : Bailey v. I an Buskirk, supra at 298, - I believe it likely that our courts would find it applicable to an action for alleged malpractice brought by one Massachusetts guardsman against another for acts per- formed in the course or line of duty. The Supreme Judicial Court's apparent approval of a related immunity rule for servicemen in Neu v. McCarthy, 309 Mass. 1". 22-23 ( 1941 > (soldier's obedience to a military order may justify conduct otherwise giving rise to civil or criminal liability unless order is "palpably unlawful"), leads me to conclude that it would similarly adopt the principle under discussion here, for the rationale underlying both rules is similar: the necessity of an effective discipline m in the armed forces in order to maintain a strong military force. Just as discipline would be undermined if servicemen could question the propriety of their superiors" orders, so would it be if servicemen could litigate among themselves over performance of their military duties. See Bailey v. Van Buskirk, supra at 298: Bailey v. DeQuevedo, supra at 73-74. The only remaining question is whether medical personnel of the Na- tional Guard are acting in the "line"" or "course"" of duty while providing medical treatment and services during their statutorily required training programs. I have concluded that they are so acting. The military" duties and responsibilities of the Massachusetts National Guard are set forth in Chapter 33 of the General Laws. See G.L. c. 33. -47, 57-61. The regular annual service training program and the unit training drills required by § ;60 and 61. respectively, are explicitly defined as part of these duties. See, e.g., § j57, 59, 61 and 83. Furthermore, as you indicate in your letter, the conduct of the medical personnel in the Na- tional Guard during these periods is governed entirely by the provisions of military law set forth in Chapter 33. including those concerned with disciplinary measures and military courts. Under such a system, I believe it is clear that members of the National Guard's medical personnel are acting in the line or course of duty while performing authorized" medical services during their training service. Under the general rule discussed above, they are not liable to their fellow Guard members for negligent acts committed within the scope of their authority which might in other circumstances constitute actionable medical malpractice. Independent of this common law rule. 4 Chapter 33 contains a specific -While the Supreme Court of Wisconsin declined to follow the rule of "serviceman immunity" in a case between two national guardsmen. Mazurek v. Skaar, supra, it seems to be the only court to have done so. 31 use the word "authorized" to distinguish the situation in which a particular medical officer per- forms a medical service during his training duty that is outside the scope of any orders he received. .-. a case. I do not believe that the officer could derive protection from liability under the gen- eral rule described above. See Ela v. Smith. 5 Gray 121. 141 H857) Cmembers of militia would be liable to civilian plaintiff for personal injuries he sustained if they acted outside of specific order of - :n acting to quell riotj. A second common rule may also be applicable to National Guardsmen serving on their training duty: the doctrine under which public officers are granted immunity from liability for negligence result- ing from decisions and actions made and taken wthin the scope of their duties, in good faith and with- out malice. See. e.%.. Somers v. Osterhel;. »56) < superintendent of state hospital as public official not liable for omission to perform his statutory duties in caring for a patient under his charge): see also Gildea v. Ellershaw, supra. 363 Mass. at 820-22. However, since this rule as L to "public officers" does not appear to afford immunity from liability that is as broad as that provided the Guardsmen_by G.L. c. 33. 553 (discussed immediately below in the text;, I do not -esolve the difficult threshold question of whether the rule does in fact apply to members of the National Guard. P.D. 12 77 immunity provision tha: is applicable to militar personnel in the National Guard. Section 53 of that chapter pi No officer or enlisted person shall be liable for any damag. property or injury to any person, including death result: - s from, caused by him or by his order, while perforrr s military duty lawfully ordered under any provision of chapter, unless the act or order causing such damage or ir manifestly beyond the scope of the author: f such or enlisted person. Under this section, a member of the military medical personnel in the National Guard would be protected against a claim of damages for in resulting from his provision of medical sei - . - as long "ions are met: ( 1 > the medical officer's performance of : "military duty lawfully ordered:"' and ( 2 » the act or order resulting in injury was not "man:. I the scope" of his authority. Fc: reasons I gave above in discussing the phrase "in the line or coi duty" in the context of Char:.- 33, - my opinion tha: . medical services and treatment performed by National Guard medical personnel during their mandator) training sess ns qualify as "military duty" within the meaning 53 Whether or not the second conditio- - satisfied obviously depends the particular facts and circumstarice eac As a general ma::. . . seems i sar that this statute aid serve to protect the military medica' pers one om liability for acts of a'. negligent malpractice they might commit - ning dutv under G.L. c 33, ~j60 oi 4 Idstein i 281 N.Y. 396. 24 N.E. 2c 97, I I Skaar, supra at 6C .: - (1973 . 2. For essentially the same re n my an* . question. I am of the : :at neither military membe states* National Guar.- of the I S armed forces may main: acl ns .._ nsl military personnel in Massachusetts National Guard for allege . - k ^1 malpractice again provided that the . . the scope ' the mi. officer's duties, and were performed in good faith and in the . . irse of a required training session. No cases between soldiers in different armed forces have been found in which a court considered or discussed the principle sei . :men SThe '. das - " $3 was enacted in 1939. It provide . v- criminal Hafa injui •.-- -- ge sections -_----..- . . . — the as - - - 12. St. 1939 51. In 1943. the Legislature broac. -.--;- C ~ . - - nc . . criinin . performing "any mi!i:.. nda ay ps - o time '. . 2 - i from the 1943 version of the sec n. Sin 51 follow closely the piovisions i noted snot ".eft an injured member . M ^".ional as and enlisted N n anen .-.': of medical treat- mer: :"rom a fel!.- sections r8 P.D. 12 Tirm:- inscribed above. In my ju^ r . - the reasons for _ ? ng such a ra e are the -_me as in the case i - ere soldier claims damages from a member of the sarr.; . . and it seems ::.i: i co.r _ . of this rule, the nmunity provisions of G.L. c _ : - : :3 protect the Guardsmen against ability for injury erson — including r. _ : S im Bar _h respect to the liability :: National Guard mil: a] pcfsonnd ::vilians for injuries resulting from the former's pro- - of medical service :ha: G.L . 33 53 affords the ledical personnel immuniry from suit if the wo conditions of the ed above - - are met - Fina tun your _— as re yarding the right of National . . - . . rney Gen- medical malprac: . as actually encompasses two sub- mt of representation afforded officers General in actions malpractice actions) arising out of in: 1 ia! extent are members i the National Guard considered "officers"' or "employees" of the Com- lonwealth for purposes of - -tion by the - General. Resolu- ion of the second question is ml if as a general rule state fficers and emplc x -id be entided to representation b; rart- em ' the types of actions for alleged mi escribed. - conclude that they are r. . ::led. I do not reach zZZT.Z p.d. :: 79 General La . 1 3, 3B, 3C and 3D are the ooh . inert . ;smed with the scope jenexaTs esponsibilities for repre sen! - state tfficen ind emp loye* pecinc nature of the man- di::e . - - : 7 -" - ." I ::;i:es the Legislature did n - him to defend state employees in actions for personal injuries not e mentioned in the . . . ons. See, on as constru: Cc mmissioner of Correction, 363 I 1973); .missioner c Mass. 250, 252-53 >54 iing I am of the opinion the. General is obligated s -:::. " .. a damage action for personal injuries I he thin the specific ca ... A emplc .. ad in G.L - 2 "I action is within :r . of civil procee. - . J L : '. ~-C.~ In other _ s, re taming . - . Delusion that if a stale race ments and agenc as . : D is nan an acticr damages for alleged malpractice performed in the course of r ae will not be . . Having . . . ad ±is cor.. ... or fcm . mihtarj member- training dun. should be considered state the Guardsmen are classified, thej stU jJd not be ad to this De- partment's rej pes of alleged malpractice actions ... G.L. c. 12, §3D.9 \ e: FRANCS X BELUOlTi Nu~be: 3 2 « -"- — A Calhoun ' "3 Tic Streel Boston. Mass .1 DearC a nei Calhoun: You have :ejues:ei mj opnricn . missioner of the Department of Ych * .-:-..-- - • - - - - ?:---. -...-;:--..-.;:.. ------ :-• .-.;.- — .; -.;- 7 .-;;•'-:"--"'" r ; » •-.-.-..... ;__i . . • .... .. . .- - . - - - :':-. - -.- .-.-.. : . — .-r i;i'.-.r -"--.:-:--- K Rsr ?.-; ------- J - - -.-- .. - --.--.---.•• ;---r v- i" ;: .- : .--.- . . " . - . . ....... . in the civil malpractice actions described. Tbe -"- - - . 80 P.D. 12 ties for the temporary detention and custody of juveniles. Specifically, you ask: 1. Whether you may designate particular locations within the Commonwealth to receive and detain police arrests; and 2. Whether you may designate particular locations within the Commonwealth to receive and detain court referrals. You state that "[s]ome courts and police departments continue to send children to locations formerly used for purposes of detention, when, in fact, private contractors have been designated by the Department to re- ceive children in a detention status". The detention of juveniles arrested by the police is governed by G.L. c. 119, §67. This section provides in part that a child who has been arrested and is to be detained, . . . shall be detained in a police station or town lockup, or place of temporary custody commonly referred to as a detention home of the department of youth services, or any other home approved by the department of youth services pending his appearance in court. The section also provides that detention facilities for children at police stations or town lockups shall be inspected annually by the Department and approved in writing by the Commissioner. General Laws, c. 119, §68B provides that: The department of youth services may use or provide special foster homes and places of temporary custody commonly referred to as detention homes, at various places in the commonwealth which shall be completely separate from any police station, town lockup or jail, and which shall be used solely for the temporary care, custody and study of children committed to the care of the department of youth services. The commissioner of youth services may at his discretion transfer any child thus committed from any foster home or detention home to another such foster home or detention home. I have found no statute that would prohibit you from designating a particular location to receive police arrests, so long as the designated location qualifies under G.L. c. 119, §67 as a "detention home" or a "home approved by the department." However, because Section 67 is written in the alternative, I do not believe your designation would be bind- ing upon the police. The police could, consistent with this section of the statute, detain a child at approved juvenile facilities at the police station or town lockup. In this case, you would have no authority to order the child transferred to the designated location. Alternatively the police could deliver the child to any detention home or home approved by the Department. In this case, you would have authority under G.L. c. 1 19, §68B to order the child transferred to the location designated to receive police arrests. See 1973 Op. Atty. Gen. No. 73/74-13 (September 20, 1973). The detention of juveniles temporarily committed to the care of the Department pursuant to a court order, and your authority to designate P.D. 12 81 particular locations to receive such court referrals, is similar to that described above with respect to police arrests. General Laws, c. 119, §68 provides that: A child between seven and seventeen years of age held by the court for further examination, trial or continuance, or for indict- ment and trial ... or to prosecute an appeal to the superior court, if unable to furnish bail, shall be committed by the court to the care of the department of youth services. . . . The department of youth services may provide special foster homes, and places of temporary custody commonly referred to as detention homes of the department of youth services for the care, maintenance and safekeeping of such children between seven and seventeen years of age who may be committed by the court to said department under this section; provided, that no more than five such children shall be detained in any such special foster home at any one time. . . . Since this section of the statute does not specify the place of commit- ment within the Department and since no other statute appears relevant, you have the authority to designate a particular location to receive court referrals. The location you designate must, however, conform to the requirements of G.L. c. 119, >;68. Although your designation would not be binding upon a court, you would have authority under G.L. c. 119, §68B to order children committed to other homes transferred to the designated home. Very truly yours, FRANCIS X. BELLOTTI Attorney General