Number 6 December 3, 1979

Number 6 December 3, 1979 Alfred E. Frechette, M.D. Commissioner of Public Health 600 Washington Street Boston, Massachusetts 021 1 1 Dear Dr. Frechette: You have asked whether physicians who provide medical services at Depart- ment of Public Health facilities on a contractual basis and who are paid from a subsidiary account coded "03" in the expenditure code manual are "public employees' within the meaning of the Commonwealth's Claims and Indemnity Act. G.L. c. 258, §§1, et. seq., inserted by St. 1978, c. 512, §15. The purpose of your question is to determine whether it is necessary for such physicians to maintain their own medical malpractice insurance, in light of statutory language in G.L. c. 258, §2, which directs that, under certain circumstances, a public employer may be held liable for the tortious conduct of an employee. As discussed more fully below, I have concluded that, as a general matter, physicians providing services to the Department of Public Health under "03" (consultant) contracts are not immune from tort liability as a matter of law by virtue of their association with the Commonwealth. Although there may be certain instances where an "03" physician is covered by G.L. c. 258, §§1, et. seq., as one whose role and function is identical to that of a physician hired under a traditional employment contract, this is not the general rule. See, 1976- 77 Op. Atty. Gen., p. 2 (March 31, 1977); 1966-67 Op. Atty. Gen. p. 70, 71 (August 30, 1966). Thus, for the reasons discussed below, it would be advis- able for physicians hired as consultants under "03" contracts to maintain their own personal malpractice insurance. My answer to your question is based both on the language of G.L. c. 258, §§1, et. seq., and on the statute's common law context. General Laws c. 258, §2 provides that "public employers" may be held liable for . . . injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any public employee D. 14 107 while acting within the scope of his office or employment, in the same manner and to the same extent as a private individual under like circumstances. It further provides that where a "public employee" offers . . . reasonable cooperation to the public employer in the defense of any action brought under this Chapter, no such public employee or the estate of such public employee shall be liable for any injury or loss of property or personal injury or death caused by his negligent or wrongful act or omission while acting within the scope of his office or employment. Although the terms "public employer" and "public employee" are expli- :itly defined in G.L. c. 258, §1,' that provision leaves unspecified the generic meaning of the term "employee." Under these circumstances, rules of statutory ;onstruction dictate that the "usual and accepted meaning" of the word shall apply, as long as that meaning is consistent with the statute's purposes. Com- monwealth V. Zone Book, Inc., 372 Mass. 366, 369 (1977). Pursuant to this approach, the term's "usual and accepted meaning" may be derived from sources presumably known to the enactors of the statute, such as its use in other legal contexts, including common law. See e.g., Commonwealth v. Zone Book, Inc., supra; Everett v. Revere, 344 Mass. 585, 589 (1962), quoting from Brooks V. Fitchburg <&. Leominster Street Railway, 200 Mass. 8, 17 (1908). At common law, "the test used in this Commonwealth to determine whether an individual is ... a servant or employee ... is the control which may be exercised over the individual in the performance of his work." Brigham's Case, 348 Mass. 140, 141 (1974) 1964. An individual is considered a servant or employee if, in the performance of his duties, that individual is at all times bound to obedience and subject to direction and supervision as to details, as distinguished from a responsibility merely to accomplish an agreed result in an agreed manner. Brigham's Case, supra at 142; Bell v. Sawyer, 313 Mass. 250, 251 (1943); McDermott' s Case, 283 Mass. 74, 76(1933). Courts have recognized that "one may be a servant though far away from the master, or so much more skilled than the master that actual direction and control would be folly." Bell v. Sawyer, supra, at 251-252. This holds true because the existence of the master-servant relationship depends primarily upon the right of the principal to control the manner in which the work is performed, rather than the actual exercise of that right. Marino v. Trawler Emil C, Inc., 350 Mass. 88, 96 (1966); Bell v. Sawyer, supra at 252. To determine whether such a relation- ship exists in any particular case, courts have looked to factors which include: the method of payment, if any; the intended duration of employment; the degree of supervision required or exercised; the place of employment; and the owner- ship of equipment used. See, e.g., Marino, supra at 95; Galloway's Case, 354 Mass. 427, 430 (1968); Bell v. Sawxer, supra at 252; McDermott's case, supra at 76-78 Pursuant to this judicial analysis, consultants have typically been viewed by the Attorney General as operating without the type of supervision and control 'G L c 258. SI. defines the term 'public employee" as eletled or appointed officers or employees o( any public employer, whether serving full or part-time, temporary or permanent, compensated or uncompensated." In turn. G.L. c. 258. §1 delincs the term "public employer" as "the Commonwealth. . . and any department, office, commission. . . . institution or agency thcreol (which] exercises direction and control over the public employee." 108 P.D. 14 which would accord such individuals the status of "employee." 1976-77 Op. Atty. Gen. p. 2 (March 25, 1977). Indeed, one Attorney General Opinion has characterized the relationship between a consultant and an agency of the Com- monwealth as one in which the agency would be the consultant's client rather than employer. 1966-67 Op. Atty. Gen. p. 70, 71 (August 30, 1966). Accord, 1976-77 Op. Atty. Gen., p. 2 (March 31, 1977). Accordingly I believe that where a traditional consultant relationship exists between an individual physi- cian and the Commonwealth, the physician would not be considered a "public employee" for the purposes of the Claims and Indemnity Act.^ The inquiry, however, cannot end with a conclusion pertaining only to the traditional consultant, since you have stated that the terms under which "03" physicians provide services to the Commonwealth differ significantly from con- tract to contract. For example, some physicians provide services to the Com- monwealth by means of a "blanket service authorization," under which (1) particular Public Health facilities have discretion to hire medical staff necessary for their operation; (2) individual physicians contract directly with the Depart- ment; and (3) certain physicians provide services to the Department by way of an "03" agreement between the Department and an institution with which the physician is affiliated. Further, you suggest that, while some physicians hired under "03" contracts genuinely play a consultant role, others are functionally indistinguishable from physicians providing services under traditional employ- ment contracts. In the latter circumstance, you state that the only difference between the "consultant" and "employee" is the fund from which compensa- tion is derived. These facts are particularly relevant since the common law suggests that it is the substance of the relationship rather than the formal label attached to it which controls the determination of one's status as an employee. For example, approx- imately one year before the Legislature enacted G.L. c. 258, §§1, et. seq. in its present form, the Supreme Judicial Court decided Whitney v. City of Worcester, Mass. Adv. Sh. (1977) 1713. In that case, the Court expressed an intention to abolish governmental immunity, within limits, in the first appropriate case de- cided after the 1978 legislative session, if the legisature itself had not acted definitively by that time. Whitney, supra, at 1715. The court voiced its conclu- sion that "the governmental immunity doctrine and the convoluted scheme of rules and exceptions which have developed over the years are unjust and inde- fensible as a matter of logic and sound public policy." Id. at 1714. It observed that "rigid classifications. . . have served only to obscure the issue of whether a particular plaintiff should recover from a governmental entity for his injuries and to prevent the systematic and straightforward development of a rational scheme of governmental liability that is consistent with accepted tort principles and the reasonable expectations of the citizenry with respect to its govern- ment." Id. at 1721. To inject what it considered the necessary rationality into ^It should be noted that this conclusion necessarily rests upon the nature of the physician's employment relationship with the Commonwealth, rather than the nature of the medical profession itself. Although the highly skilled and discretionary nature of medical practice has been recognized, see. e.g.. McMurdo v. Getter. 298 Mass. 363, 368 (1937) ("the position of a physician is normally not a servant of anyone"), courts have not hesitated to view physicians as "employees" of hospitals or corporations for purposes of tort liability. See e.g.. Aurelio v. Laird. 352 Mass. I (1967); McMurdo v. Getter. 298 Mass. 363. 364 (1937) cf. McCarthy v. Boston City Hospital. 358 Mass. 639, 643 (1971) This approach is consistent with cases decided under the Federal Tort Claims Act. 28 U.S.C. §§2671. et seq., in which courts applying language similar to that found in G.L. c. 258 have held the United States answerable to malpractice of physicians providing medical services in federal facilities. See. e.g.. Ahern v. \'eterar\s Administration. 537 F.2d 1098, ( lOlh Cir. 1976); Caron v. United States. 410 F. Supp. 378, 391 (D.R.I. 1975), affd 548 F.2d 366 (IstCir. i91(>):Grigalauskas \. United States. 103 F. Supp. 543 (D. Mass. \95i). affd. 195 F. 2d 494 ( 1st Cir. 1952). P.D. 14 109 this field, the Court approved the use of a functional analysis "guided by a principle of governmental liability within limits". Id. at 1723. In light of these considerations, when determining whether an "03" physi- cian is a "public employee" within the meaning of G.L. c. 258, §§1 et seq., the individual's legal status as a consultant cannot, in all circumstances, be conclusive. To do so would create the pitfalls of "rigid categorization" which the Court in Whitney sought to avoid. It would, in some cases, render govern- mental liability dependent solely upon the fortuity of the physician's funding arrangement with the state. Rather than viewing the "03" physicians as a consultant in all circum- stances, the teaching of Whitney militates in favor of a case by case approach. Although the fact that a physician is hired as a consultant may be highly proba- tive on the issue of that individual's relationship with the Commonwealth, the parties must be allowed to explore the issue of "direction and control." This result recognizes the principle that, in order to maintain a rational scheme of government liability under G.L. c. 258. §§1 et seq., coverage must be determined not only by the individual's technical legal status, but also by the individual's functional role. In cases where the "03" physician is in fact func- tionally indistinguishable from physicians hired under traditional employment contracts, coverage under G.L. c. 258, §§1 et seq., should be the same. Finally, assuming under the analysis prescribed above that a particular "03" physician is a "public employee" within the meaning of G.L. c. 258, §1, the individual must still be aware that he or she faces individual liability for tortious conduct not covered by the Claims and Indemnity Act. Under G.L. c. 258, §10, the provisions of the Act do not extend to: (a) any claim based upon an act or omission of a public employee when such employee is exercising due care in the execution of any statute or any regulation of a public employer, . . . whether or not such statute, [or] regulation, ... is valid; (b) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the public employer or public employee, acting within the scope of his office or employment, whether or not the discretion involved is abused; [or] (c) any claim arising out of an intentional tort. As to these types of actions, the Commonwealth has not waived its immu- nity. Rather, in these situations physicians and other public employees may still be held personally responsible for their tortious conduct, subject to limited indemnification procedures set forth in G.L. c. 258, §9. In light of these considerations, as well as the fact that in any given situation an "03" physician may not be a "public employee" for purposes of the Claims and Indemnity Act, an "03" physician cannot securely rely upon that statute as a shield from personal liability for malpractice. Accordingly, physicians provid- ing services to the Department of Public Health under "03" contracts are well advised to maintain personal malpractice insurance policies. Very truly yours, FRANCIS X. BELLOTTI Attorney General no P.D. 14 Number? December 10. 1979 Honorable Barry M. Locke Secretary of Transportation and Construction One Ashburton Place Boston, MA 02108 Dear Secretary Locke: You have requested my opinion relative to the interpretation of G.L. c. 90, §19A. Specifically, you ask whether the first paragraph of §19A, as amended by St. 1975, c. 494, allows a motor vehicle' to travel on public ways without a permit as prescribed by G.L. c. 85. §§30 and 30A. if the motor vehicle satisfies the bridge formula test described in the second proviso of §19A, even though it may not satisfy the axle-loading test set forth in the first proviso of §19A. The attachments to your request indicate that in recent months the District Court Department has dismissed several complaints brought by the Registry of Motor Vehicles for violations of the axle-loading weight limit. The Courts in these cases have interpreted §19A. as amended, to mean that a motor vehicle need only comply with either the bridge formula or the axle-loading test. For the reasons stated below, it is my opinion that the statute does allow a motor vehicle to travel on public ways without a permit if it satisfies the bridge formula test only. General Laws c. 90, §19A, Hi provides in pertinent part: Any provision of sections thirty and thirty A of chapter eighty- five to the contrary notwithstanding, a motor vehicle having two axles, which vehicle with its load weighs not more than forty-six thousand pounds, and a motor vehicle, trailer, semi-trailer or semi- trailer unit having three or more axles, which unit or vehicle with its load weighs not more than eighty thousand pounds, may travel on a public way without a permit as required by sections thirty and thirty A of chapter eighty-five; provided,'^ that no such motor vehicle, trailer, semi-trailer or semi-trailer unit, the weight on any axle of which, measured at the ground, exceeds twenty-two thousand four hundred pounds, or, in the case of axles spaced less than six feet apart, eighteen thousand pounds, shall so travel without such a permit; provided further* that in any event such a motor vehicle, trailer, semi-trailer or semi-trailer unit may travel on a public way without such a permit if the overall gross weight on a group of two or more consecutive axles thereof does not exceed the gross weight produced by application of the following formula: W = 500 (^^^ + 12N + 36) N-1 . . . .^ 'in the context of this opinion, the lemi "motor vehicle, ' includes motor vehicles having two axles, and motor vehicles, trailers, semi-trailers, and semi-trailer units having three or more axles. •^This proviso contains what is referred to as the "axle loading" lest. ^The second proviso sets forth the "bridge formula" test. 'The statute goes on to define the variables contained in the above equation: ". . W = overall gross weight on any group of two or more consecutive axles to the nearest 500 pounds, L= distance in feet between the extreme of any group of two or more consecutive axles, and N = number of axles in group under consideration except that two consecutive sets of tandem axles may carry a gross load of 34,000 pounds each providing the overall distance between the first and last axles of such consecutive sets of tandem axles is thirty-six feet or more: Provided, that such overall gross weight may not exceed eighty thousand pounds. D. 14 111 The first paragraph of §19A is divided into three main clauses. The first 'clause sets forth unqualified gross weight allowances for certain motor vehicles. The second clause is a proviso which modifies the first clause by imposing several single axle weight allowances (the "axle-loading" test). The third clause, which is the focus of your question, is a second proviso which permits motor vehicles "in any event" to travel on public ways without a permit if they satisfy the so-called "bridge-formula" test. The phrase introducing the third clause, "provided further that in any event," clearly means that regardless of the application of the axle-loading test set forth in the immediately preceding clause, a motor vehicle needs no permit to travel the public ways if it meets the requirements of the formula provided in the third clause. The result is a motor vehicle weight scheme which employs alternative tests, either of which, if satisfied, would allow the use of the road without a permit. That the Legislature intended to incorporate alternative tests is demonstrated by comparing the language of St. 1975, c. 494, with the statutory language it replaced.^ There, in the phrase which introduces a weight-axle distance ^hart (which the amendments replaced with the bridge formula) the words "in any event" are not used. Moreover, the clause was phrased as an additional restric- tion ("provided further that the gross weight . . . shall not exceed that shown on the . . . table. . ."), not as a permissive exemption as the statute now reads (" . . . provided further that in any event . . .a motor vehicle . . . may travel . . . without such a permit if [it satisfies the bridge formula test] . . ."). Such a presumably intentional change in the statutory language cannot be ignored. Further support for the view that the statute creates alternative tests comes from the elementary canon of statutory interpretation which requires that all words of a statute be given effect, if possible. See Commonwealth v. Intoxicat- ing Liquors, 108 Mass. 18, 21 (1871); Commonwealth v. Woods Hole, Mar- tha's Vineyard & Nantucket S.S. Auth'y, 352 Mass. 617, 618 (1967). See also 2A CD. Sands, Sutherland Statutory Interpretation, ^46. 06 (4th ed. 1973). An interpretation of the statute which finds both tests to be required would render the words "in any event" meaningless and superfluous and must be rejected for that reason. While I am sensitive to the possible consequence of construing the statute as I have, I am also mindful of the teaching of the Supreme Judicial Court that where the statute is unambiguous, the statute must be interpreted according to the usual and natural meaning of its language, even if injustice or hardship results. Rosebloom v. Kokofsky, Mass. Adv. Sh. (1977) 2534, 2538; Milton v. Metropolitan Dist. Comm'n, 342 Mass. 222, 227 (1961). Accordingly, I con- clude that motor vehicles may lawfully operate on the public ways if they satisfy either the axle-loading or bridge formula tests set forth in G.L. c. 90, §19A. Very truly yours, FRANCIS X. BELLOTTI Attorney General ^Chapter 494 of the Ads of 1975, inter alia, substituted the bridge-formula test for the following language: ... and provided further that the gross weight of any such vehicle together with its load expressed in pounds shall not exceed that shown on the following table without such a permit: [table omitted] 112 P.D. 14 Numbers December 19. 1979 Charles E. Memusi Johnson, Secretary Executive Office of Educational Affairs One Ashburton Place. 6th Floor Boston, MA 02108 Dear Secretary Johnson: You have requested my opinion on behalf of the Board of Library Commis- sioners (the Board) concerning the Board's authority to refer to its employees as the "Massachusetts Board of Library Commissioners' Office for the Develop- ment of Library Services." It is my opinion that the Board has the authority to so designate its employees. Until the enactment of Chapter 565 of the Acts of 1977, the Board was within the Department of Education and was augmented by an administrative agency named the Bureau of Library Extension. Chapter 565 removed the Board from the Department of Education, modified its structure and deleted the section providing that the Bureau of Library Extension would be the administra- tive agency of the Board.' The Board, however, was granted the authority to appoint a director and deputy director and "such professional and sub-profes- sional staff as the functions, powers and duties of the board shall require". St. 1977 c. 565, §4, amending G.L. c. 78, §14. The materials which have accompanied your request indicate that members of the Board believe that the term "Board of Library Commissioners" refers exclusively to the nine members appointed by the Governor and does not refer to the Board's employees. The Board has chosen to refer to its employees as the "Office for the Development of Library Services" and seeks my opinion, through you, as to its authority to do so. While there is no express statutory grant of authority to the Board to select a name for its employees,^ there is no prohibition against such an action. The name the Board has selected to refer to its employees fairly describes the duties and functions which they perform. The Board's action in selecting the name to refer to its employees is nothing more than an administrative convenience de- signed to reduce confusion and make a distinction between the Commissioners and their staff. It is a well-settled principle of law in this jurisdiction that administrative agencies have not only those powers conferred upon them by statute, but also such other powers as are reasonably necessary for their proper functioning. 1977/78 Op. Att}-. Gen. No. 31. Rep. A.G.. Pub. Doc. No. 12 at (1978). See also, Levy v. Board of Registration and Discipline in Medicine, Mass. Adv. Sh. (1979) 1857. 1865. It is also clear that the legislature may delegate to an administrative agency the authority to work out the details of a legislative policy. See Commonwealth v. Diaz, 326 Mass. 525, 527 (1950). 'While the provision for the administrative agency was deleted, the statute specifically provided that the funds appropriated to the Bureau of Library Extension and its employees were to be transferred to the service of the Board of Library Commissioners. St 1977. c. 565, §8. ^The Board is responsible for advising "the librarian or Trustee of any free public library, and may on request advise the librarian or other person in charge of the library of any slate or county institution relative to the selection or cataloguing of books and any other matter pertaining to the maintenance or administration of such library." G.L. c. 78, §15. The Board is further empowered to "expend such sums as may be appropriated for the extension and encouragement of library services within the Commonwealth." G.L. c. 78, §19. P.D. 14 ,13 The designation of the Board's staff by a particular name is simply * 'working out of the details'" of a legislative policy, and does not affect the structure, duties or responsibilities of the Board or its personnel. It is, therefore, my opinion that the Board has the inherent power to adopt such a name for its employees pursuant to its express grant of authority as contained in G L c 78 ^S14-19. Very truly yours, FRANCIS X. BELLOTTI Attorney General