Liability Protections for Massachusetts Employees and Volunteers

1. Liability Protections for Massachusetts Employees and Volunteers Prepared by the Massachusetts Department of Public HealthEmergency Preparedness BureauPriscilla Fox, Esq. Deputy General Counsel, MDPH and Cheryl Sbarra, J.D. Senior Staff Attorney and Director Tobacco Control and Chronic Disease Prevention Program Massachusetts Association of Health Boards Updated September 2012

2. Disclaimer This information is provided for educational purposes only and is not to be construed as legal advice. Consult your own attorney for legal advice.

3. Introduction: Basic Principles • There can be no liability unless you have committed a negligent act (or omission). • Anyone can file a lawsuit. If you are sued, the questions will be: • Were you negligent? • If so, do you have a defense?

4. Introduction • Liability laws in Massachusetts are a patchwork. • Whether you have liability protection, and what type of protection, depends on several factors: • Your profession (physician, nurse, etc.) • Whom you were working for at the time you committed a negligent act (Employee? Volunteer? Private citizen?) • What you were doing at the time you committed a negligent act (Acting within your scope of practice? Under supervision?) • Extent of your negligence (Simple or gross negligence?)

5. Outline • Sources of Liability Protection • I. Massachusetts Tort Claims Act (M.G.L. c. 258) • II. Contractual Protections • III. Immunity for Doctors and Nurses working in Public Health Programs • IV. Protection for EMS Personnel • V. Good Samaritan Laws • VI. Federal Volunteer Protection Act • VII. Miscellaneous Protections • Some ways to volunteer in Massachusetts • Hypothetical scenarios

6. SOURCES OF LIABILITY PROTECTION

7. I. Massachusetts Tort Claims Act M.G.L. Chapter 258 • § 2: Public employers are liable for harm caused by the negligent or wrongful act or omission of any public employee who acted within the scope of his/her employment. • § 10(c): intentional wrongdoing is not covered • $100,000 cap on damages

8. A. What is a public employer? Defined in c. 258, section 1 • Any of the following . . . • The Commonwealth • Any city, town, or county • Any public health district • Any regional health district or regional health board established under c. 111, § 27A or 27B • Any commission, committee, council, etc. . . • . . . “which exercises direction and control over the public employee”

9. B. “Public employee” 3-step analysis • Are you within the definition of “public employee”? • Are you subject to the direction and control of the public employer? • Was the act (or failure to act) within the scope of your employment?

10. Step 1 Who is a public employee? Defined in c. 258, section 1 • An “officer or employee of a public employer” • Elected or appointed • Full or part time • Temporary or permanent • Compensated or uncompensated

11. Step 2Are you subject to direction & control? • Key inquiry. Always a factual issue whether you are subject to direction and control. • Paid employees doing regular job are generally under direction and control • Residents (MDs) at Boston City Hospital are public employees because their duties demonstrate that they are “servants” of the hospital, even though they are also subject to the supervision of an attending physician who is not a public employer. Williams v. Bresnahan (App. 1989) • BUT there was a dispute of fact whether a BCH resident MD who was on rotation at a private hospital worked for the city or the private hospital. Kelley v. Rossi (SJC 1985)

12. Direction and control in mutual aid agreements • A mutual aid agreement should specify the direction and control to be exercised. If you are sued, a written agreement will be evidence that will help the court in deciding the direction and control question. • Example: an employee from Town A sent to help Town B “remains under the direction and control” of Town A

13. Can consultants or volunteers ever be considered “public employees”? • Sometimes. Depends on direction and control. • 2 A.G. opinions from 1983 • Independent consultants for E.O. Energy: can be considered public employees because they had office space/supplies; reported to E.O. employee • Student volunteers in Governor’s office; vols. at State Hospitals; vol. drivers for Governor – if state supervisors directed “what shall be done and how it shall be done”

14. Step 3Were you acting within scope of your employment? • Factors to consider • Was the conduct in question what you were hired to do? • Did it occur within authorized time and space? • Was it motivated by a purpose to serve the employer? • Travel to and from home is generally not within scope of employment • Merely being “on call” does not place you within scope of employment. Clickner v. City of Lowell (SJC 1996)

15. Bottom line • If you are a public employee and acted within the scope of your employment and you are sued, the “public attorney” will defend you, provided that you cooperate in your defense. • Who is the public attorney? • State: Attorney General • County: District Attorney • City/Town: City solicitor/town counsel or attorney appointed by Selectboard

16. C. Discretionary Functions • You are not liable if you were performing a “discretionary function” at the time of the act. • M.G.L. c. 258, sec. 10 (b) protects public employees from “any claim based upon the . . . performance or the failure to . . . perform a discretionary function . . . whether or not the discretion involved is abused.” • Must be acting within the scope of employment. • Purpose: to avoid allowing civil claims to be “used as a monkey wrench” in the machinery of government decision making. (Cady v. Plymouth-Carver Regional School District (1983) 457 N.E.2d 294)

17. Definition of Discretionary Function • Does the government actor have any discretion at all as to what course of action to follow? • Or is the course of action prescribed by a statute, regulation, or established agency practice. • Is it the kind of discretion for which the exemption provides immunity? • High degree of discretion and judgment is involved in weighing alternatives and making choices with respect to public policy and planning.

18. Example of Discretionary Function • City’s exercise of its discretion in deciding not to incur cost of erecting a fence on stairs near children’s playground, or to remove snow from the stairs, was based on a determination of allocation of limited resources, which was an integral part of its governmental policy making or planning function, and thus tort action for wrongful death of a child was barred, even if city’s decision was ill advised or unreasonable. Barnett v. City of Lynn (2001) 745 N.E.2d 344

19. Not a Discretionary Function • The plaintiff’s claim that the public employees negligently supervised a truck driver’s operation of a salt truck “does not appear to have a “close nexus to policy making or planning.” (Ku v. Town of Framingham (2004) 62 Mass. App. Ct. 271).

20. D. Failure to Inspect • M.G.L. c. 258, sec.10(f) • No liability for failing to inspect, or inadequately or negligently inspecting real or personal property to determine whether the property complies with or violates any “law, regulation, ordinance or code, or contains a hazard to health or safety . . .” • Cited by municipal attorneys frequently • Does it mean you shouldn’t do your job? [No!]

21. E. Indemnity of Municipal Officials • M.G.L. c. 258, sec. 13. • A city or town shall indemnify municipal officers, elected or appointed from personal financial loss and expense, including legal fees, in an amount not to exceed $1 million arising out of a claim by reason of any act or omission, except an intentional violation of civil rights, if at the time of the act or omission, the official was acting within the scope of his or her official duties. • Authority to indemnify must be voted on by town meeting or city council.

22. II. Contractual Liability Protections • Example: contract between a Visiting Nurse Assn. or a home health agency (“the Agency") and a town Board of Health • Specifies services to be provided: disease surveillance, vacc. clinics, health screening, etc. • Liability provisions may be written into contract • Example: “The Agency and the Town shall each maintain professional malpractice and general liability insurance for itself and its employees” • Check insurance contract for extent of coverage! Does it cover volunteer work outside of normal working hours? (probably not)

23. Contractual Protections con’t. • Examples of liability provisions in contract con’t. • 30 days advance notice of any proposed change or cancellation of insurance • Prompt notification of any claims or lawsuits • Town agrees to indemnify Agency against claims caused by the negligence of the Town or its employees or contractors • Agency agrees to indemnify Town against claims caused by the negligence of the Agency or its employees or contractors • Contract specifies that Agency is NOT an agent of the Town (i.e. nurses are NOT local employees)

24. III. MG.L. c. 112, § 12C: Immunity of Physician or Nurse “No physician or nurse administering immunization or other protective programs under public health programs shall be liable in a civil suit for damages as a result of any act or omission on his part in carrying out his duties.” (Government Programs) • Immunity = no liability. Existence of this law is a defense; case will be dismissed.

25. MG.L. c. 112, § 12C • Case law upholds this immunity with respect to treatment for TB at DPH-funded clinic. Headley v. Berman (SJC 1995) • Covers routine work as well as emergencies • Paid or unpaid • Would apply to emergency dispensing sites • Bottom line: If you are an MD or nurse working in a government-funded protective public health program, you have this immunity.

26. IV. Protection for EMS Personnel • M.G.L. c. 111C, § 21 • Protects certified, accredited or approved EMS personnel who “in the performance of their duties” render first aid, CPR, transportation or other EMS. • Covers them for their usual duties, but NOT when they are off duty • Good faith requirement

27. V. Good Samaritan Laws(ONLY apply to emergency situations) • M.G.L. c. 112, § 12B • Protects doctors, nurses, and physician assistants who give emergency care or treatment other than in the ordinary course of practice, from liability in a suit for damages. • Care must be given in good faith, as a volunteer and without fee • Protection may not extend beyond an immediate, urgent need (e.g. car accident) • Protects the people above: • From liability for damages as a result of acts or omissions • From liability for hospital expenses for ordering or causing hospitalization

28. Good Samaritan Laws cont. • M.G.L. c. 112, § 23BB • Same protection as above for respiratory therapists, but not from another state or Canada • (Section 12B protects doctors, nurses, and physician assistants licensed in another state or Canada) • In good faith, without fee

29. Good Samaritan Laws cont. • M.G.L. c. 112, § 12V • Protects any person, whose usual and regular duties do NOT include the provision of emergency medical care, who attempts to render emergency care • Care must be given in good faith, without compensation • Does not protect against gross negligence or willful or wanton misconduct

30. Good Samaritan Laws cont. • M.G.L. c. 112, § 12F • Protects doctors, dentists, and hospitals from liability for failure to obtain consent from a parent of a child, or spouse of a patient: • when delay will endanger the life, limb, or mental well-being of the patient • covers emergency exam and treatment, including blood transfusions

31. V. Federal Volunteer Protection Act • 42 U.S. Code § 14501 et seq. • Preempts (overrides) state laws that are inconsistent with the Act • Does not preempt state laws providing additional protection from liability • Provides immunity from liability for negligence (harm caused by their acts or omissions) for volunteers serving • nonprofit organizations or • governmental entities, IF:

32. Federal Volunteer Protection Act cont. • Volunteer was acting within the scope of his or her responsibilities in the organization • Volunteer was properly licensed, certified or authorized to act • Harm was not caused by willful, criminal or reckless misconduct or gross negligence • Harm was not caused by volunteer operating a motor vehicle, vessel, or aircraft • The volunteer’s misconduct was not a crime of violence, hate crime, sexual offense, or violation of civil rights • Volunteer not under influence of alcohol or drugs

33. Federal Volunteer Protection Act cont. • VPA does notaffect the liability of the nonprofit organization or govt. entity, which may still be liable for the volunteer’s misconduct. But: • Mass. has charitable immunity for non-profit orgs, including their directors, officers or trustees: Maximum recovery is $20,000 if the activity giving rise to the harm was done to “accomplish directly the charitable purposes” of org. (as opposed to commercial purposes). • VPA does not limit the ability of the organization to sue the volunteer

34. VI. Your own malpractice insurance If you carry your own insurance, check to see if your coverage extends to practice during a disaster (volunteering, working off site, etc.)

35. VII. Miscellaneous Protections • Elder care counselor: M.G.L. c. 19A, § 38: Any person “trained and designated by the Department of Elder Affairs as a counselor or coordinator in the serving health information needs [sic] of elders program,” whether paid or volunteer, shall not be liable “in any civil or criminal action by reason of the good faith performance of his official duties.” • Dept. of Elder Affairs must make publicly available a description of the function and the responsibilities of these counselors.

36. Some Ways to Volunteerin Massachusetts • Official Programs • MRC – Medical Reserve Corps • Locally recruited, locally based • Can assist in emergencies and in routine health-related events (e.g. vaccination clinics) • MA Responds • Statewide database of pre-credentialed volunteers • System is managed by DPH • Many MRC units are part of MA Responds

37. Some Ways to Volunteer • DMAT teams (federal) • Sent or released by your employer • Paid or unpaid • “Spontaneous” volunteering • Example: car accident

38. HYPOTHETICALSCENARIOS

39. Scenario 1: anthrax attack • Governor has declared a public health emergency. [This allows Commissioner of Public Health to “take such action as he may deem necessary” to prevent disease.] • Emergency dispensing sites (EDSs) are being set up by local boards of health; call goes out for volunteers to staff these. • A pharmacy student volunteers and is trained by a nurse to help. The student dispenses meds to a family, and a child suffers shock and is hospitalized.

40. Scenario 1 con’t. • Question 1: Will nurse jeopardize her license by training a pharmacy student to dispense meds at an EDS? • Nursing Board of Registration controls licensing • DPH has an Emergency Dispensing Order that would be signed by Commissioner of Public Health, waiving laws & regulations that restrict dispensing. • Students in accredited pharmacy school would be allowed to dispense in accordance with protocols • Also lay people who are trained by MD or nurse • If Emergency Dispensing Order is in place, nurse’s license should not be jeopardized because there is no violation of Nursing Board regulations.

41. Scenario 1 con’t. • Question 2: Is the nurse liable for injury to the child? • If the nurse is not negligent, there is no liability. • If the nurse is negligent in training the student, she is protected by: • M.G.L. c. 112, § 12C (immunity for nurses working in public health programs) • If a government employee, by Tort Claims Act • If unpaid, by Federal Volunteer Protection Act • If unpaid, possibly by c. 112, § 12 B (Good Samaritan) • If a contractor, possibly by own malpractice insurance

42. Scenario 1 con’t. • Question 3: Is the student liable for injury to the child? • If the student is not negligent, there is no liability. • If the student is negligent in dispensing the meds, she is protected by: • Federal Volunteer Protection Act • Possibly Tort Claims Act, as a volunteer subject to direction and control (if nurse is a public employee)

43. Scenario 1 con’t. • Question 4: Is the board of health liable for injury to the child? • Board of health that operates the clinic is not liable unless either the nurse was negligent in training the student, or the student was negligent in dispensing the meds. Even then, liability is not certain. • $100,000 cap. • Nurse and student not personally liable.

44. Scenario 2: Flu Vaccine Clinic • Flu pandemic; shortage of nurses to staff local vaccine clinic. Board of health appeals to retired nurses to work in clinic. • Question:Would the retired nurses (without malpractice insurance) be protected from liability? • Federal Volunteer Protection Act? • Probably, so long as properly “authorized to act” • Chapter 112, § 12C? • If still licensed, very likely protected • If not licensed, not protected • Good Samaritan Act? • No, because must be “duly registered or licensed”

45. Scenario 3: Rabid raccoon found in Town A • Question:Could a health agent from Town B be liable if she conducts an epidemiologic investigation and negligently advises people in Town A about prophylaxis, in the absence of a Memorandum of Understanding between the towns? • Health agent should talk to her own superior and make sure that Town A will authorize her work in Town B. • No individual, personal liability.