Section Review

A better chance at recovery: Massachusetts responds to national trend by easing respondeat superior requirements in medical malpractice cases

Peter MinaPeter Mina is a recent graduate of Boston College Law School and plans to pursue a career in litigation.

In Dias v. Brigham Medical Associates Inc.,1 the Supreme Judicial Court brought Massachusetts into the majority of jurisdictions across the country that employ traditional respondeat superior principles when assigning liability to physician employers. In Dias, the court reversed the trial court's finding for the defendant-appellee, Brigham Medical Associates (BMA), on summary judgment, holding that sufficient evidence was presented to establish a genuine issue of material fact regarding its vicarious liability for the negligence of one of its physician employees.2 The court rejected the lower court's requirement that plaintiffs show that BMA exercised, or had the right to exercise, direction and control over its employee's decisions in order to assign liability to BMA.3

Prior to the Supreme Judicial Court's decision in Dias, Massachusetts courts had resisted holding hospitals or other health care providers liable for the acts of physicians, by effectively carving out a virtual exception to traditional respondeat superior principles. Massachusetts courts previously held that by the very nature of the medical profession, physicians most resembled independent contractors rather than employees.4 Kelley v. Rossi5 had been cited for the proposition that because direction and control will result in a finding that the actor is a "servant," the independent nature of a doctor's decisions will likely mean that the doctor is not the "servant" of the hospital.6

The court in Dias, however, distinguished Kelley by stating that the court in Kelley focused on "whether a particular physician was a 'public employee' as that term was used in a statute [Massachusetts Torts Claim Act],7 not with the common-law analysis of respondeat superior that governs BMA's liability for the acts or omissions of its admitted 'employee.'"8 To hold BMA liable, the court mandated a showing that "(1) at the time of the alleged negligence, [the physician] was an employee of BMA, and (2) the alleged negligent treatment of the plaintiff occurred within the scope of [the physician's] employment by BMA."9 The court, relying on well-established jurisprudence from other jurisdictions, held that once an employment relationship is found, the question of control is no longer part of the court's analysis.10 All that remains is a showing that the tort occurred within the scope of employment.11

The court acknowledged the prevailing rule in most jurisdictions is to recognize corporate liability for the negligence of physician employees. It found the lower court's rationale, that an employer's inability to exert direction and control over a physician's clinical decisions is presumed absent unless there is evidence to the contrary, "undercuts the evolved purpose of the respondeat superior liability and would create an exception for physicians not recognized in any other profession."12 Determination of the presence of an employer-employee relationship is a factual question depending upon factors such as how the physician is paid (salary or fee for service) and where patients are seen (in the physician's office or at a clinic owned by the entity) and the belief of the parties themselves.13

To understand the impact of the Dias decision, it is important to view how the application of respondeat superior has evolved in the years prior to Dias. In the 1980 decision, Gugino v. Harvard Community Health Plan,14 the Supreme Judicial Court reviewed a finding for Harvard Community Health Plan by a medical malpractice tribunal against the plaintiff who had filed a malpractice claim arising from alleged negligent treatment in installation of an intrauterine contraceptive device, the Dalkon Shield. The court applied a standard of proof against the plan similar to that of a defendant doctor and while the court did reverse the finding of the tribunal, it held that "if the Plan is to be held vicariously liable, there must be a factual basis for inferring that the Plan had power of control or direction over the conduct in question."15

Over a decade later, the Massachusetts Appeals Court in Chase v. Independent Practice Ass'n, Inc.,16 applied the control and direction standard to deny relief to a patient in a medical malpractice action against an independent practice association (IPA) that provided physicians to HMO members. Unlike in Dias, Chase involved an HMO, which contracted with the defendant IPA to provide and arrange for medical services for the HMO's members.17 IPA then in turn contracted with another practice group, HGCO, to provide obstetrical and gynecological services to the HMO's members.18 The HMO paid the defendant IPA using a capitation method and IPA compensated the obstetrical practice group in similar fashion.19 Physicians employed by HGCO, in turn, were paid an annual salary and HGCO retained the right to terminate the employment of its member physicians.20 Both IPA and the obstetrical and gynecological practice group remained independent entities.21 The agreement also stated that neither party was to be an agent or representative of the other nor did either party have any express or implied right or authority to assume or create any obligation on behalf or in the name of the other.22

The Appeals Court, relying on the lack of control or right of control exerted by IPA, held that the plaintiff failed to prove that any negligence on the part of the attending physician, a member of the obstetrical practice group, was attributable to IPA.23 Instead, IPA, in fulfillment of its contract with the HMO, contracted with another health care provider, HGCO, which employed the doctor who engaged in the negligent conduct involving the plaintiff.24 Defendant IPA, again unlike the HMO in Gugino, did not pay the practice group's employees and "functioned as a third-party broker," arranging for services on behalf of third-party members.25 The Chase court emphasizes that "IPA did not control the actual medical decisions made by HGCO and [the physician]."26 Though the court recognized that the doctrine of respondeat superior was most likely applicable in cases such as Gugino where the defendant was a "staff-model HMO," the court refused to apply respondeat superior principles to find vicarious liability against the defendant IPA that did not directly employ physicians.27

In Hohenleitner v. Quorum Health Resources, Inc.28 the Supreme Judicial Court in 2001 refused to extend liability to a management corporation engaged by the city of Quincy to manage a city-owned hospital for the negligence of a nurse employed by the city. The court again relied on the right to control or direct treatment of the plaintiff.29 The court, in a limited departure from Chase, rejected Quorum's argument that in order to be held vicariously liable the plaintiff must prove that Quorum had the right to control the details of the nurse's patient-care activities, including her actual clinical judgment.30 Yet, the court was unwilling to abandon the control or direction requirement entirely, as the court found that in order to establish a master-servant relationship for purposes of vicarious liability there must be "a factual basis for inferring that [the health plan] had power of control or direction over the conduct in question."31 In a case where the court acknowledged that "there is hardly any question that a member of the hospital's nursing staff is a servant of the hospital,"32 the court still would not, as the court would later do in Dias, apply "the common law analysis of respondeat superior that governs BMA's liability for the acts or omissions of its admitted employee."33

The Dias court was able to distinguish Hohenleitner, as it did Kelley, by categorizing the case as one in which the court sought to determine whether the nurse was a "public employee" under the terms of the Massachusetts Tort Claims Act statute rather than simply an "employee" for purposes of respondeat superior analysis.34 The Dias court parsed through the "public employee" question and reduced the standard to one of simply establishing an employer-employee relationship and that the negligent treatment of the plaintiff occurred within the scope of the physician's employment.35 The Dias court provides a roadmap for subsequent cases to avoid getting bogged down in Tort Claims Act analysis when evaluating vicarious liability.36

Thus, with the court's decision in Dias, the Supreme Judicial Court has taken a significant step toward a broader application of respondeat superior principles in determining the vicarious liability of health care providers for the negligence of their physician employees.37 The elimination of the control and direction test should lower the bar for plaintiffs seeking to establish such liability and bring the commonwealth in step with courts across the nation.


End notes

1. 438 Mass. 317 (2002).[back]

2. Id. at 324.[back]

3. Id. at 321-322.[back]

4. Dias, 438 Mass at 323; Kelley v. Rossi, 395 Mass. 659, 662, 663 (1985).[back]

5. Kelley, 395 Mass. at 661-663.[back]

6. Dias, 438 Mass. at 321 n.6; Hohenleitner v. Quorum Health Resources, Inc. 435 Mass. 424, 432 (2001).[back]

7. G.L. c.258 ß2.[back]

8. 438 Mass. at 321.[back]

9. Id. at 321-322.[back]

10. Dias, 438 Mass. 322, 323; Pediatric Neurosurgery, P.C. v. Russell, 44 P.3d. 1063, 1071 (Colo.2002). [back]

11. Id. at 323.[back]

12. Id.[back]

13. Id. at 322; Kornreich, E. "Health Care M&A: Commercialization of the Medical Industry," 741 PLI/Comm 329, 378-379 (April-May, 1996).[back]

14. 389 Mass. 464, 468 (1980).[back]

15. Id; Kapp v. Ballantine, 380 Mass. 186, 195 (1980). [back]

16. 31 Mass.App.Ct. 661 (1991).[back]

17. Id. at 663.[back]

18. Id. at 663-664.[back]

19. Id. at 663.[back]

20. Id. at 664.[back]

21. Id.[back]

22. Id. [back]

23. Id.[back]

24. Id. at 666.[back]

25. Id.[back]

26. Id.[back]

27. Id.[back]

28. 435 Mass. 424 (2001).[back]

29. Id. at 431.[back]

30. Id. at 432.[back]

31. Id. at 433 n.6.[back]

32. Id. at 432.[back]

33. Dias, 438 Mass at 321.[back]

34. G.L. c. 258 ß1; Dias, 438 Mass. at 321 n.6.[back]

35. See Dias, 438 Mass. at 321-322.[back]

36. See id.[back]

37. Due to the damages cap established by the Massachusetts charitable immunity statute, G.L. c. 231 ß85K, suits with the strongest likelihood of a larger monetary recovery will continue to be against health care providers other than hospitals, such as practice groups like Brigham Medical Associates. The Supreme Judicial Court has been unwilling to lift the cap under any circumstances. Keene ex rel. Keene v. Brigham and Women's Hosp., Inc. 439 Mass. 223 (2003).[back]

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