Publically-Employed Nurse Held Immune for Malpractice Under Massachusetts Tort Claims Act

image_pdf

Publically-Employed Nurse Held Immune for Malpractice Under Massachusetts Tort Claims Act: Pedro v. Goldfarb, 28 Mass.L.Rptr. 559, 2011 WL 4056342 (Mass. Super. Ct., Sept. 13, 2011)

In a case defining the contours of the immunity enjoyed by publically-employed nurses against medical malpractice claims, the Middlesex Superior Court recently decided Pedro v. Goldfarb. Judge Edward Leibensperger applied the “direction and control” test previously used to determine the scope of physician immunity under G.L c. 258, § 2, to grant summary judgment to Melissa Abell-Bardsley, a registered nurse employed by Cambridge Hospital. As part of the Cambridge Health Alliance, Cambridge Hospital is considered a public employer within the meaning of the Massachusetts Tort Claims Act (“MTCA”), G.L. c. 258, §§ 1, et seq. Abell-Bardsley, an obstetrics nurse at the hospital, was sued (among others) for malpractice by the estate of Brandon Pedro, a young boy who died within days of his birth. Section 2 of the MTCA provides immunity to public employees who cause injury or death by their negligence while acting within the scope of their employment. Even though Abell-Bardsley admittedly exercised some independent “professional judgment” in her treatment of Brandon, the Court nonetheless held her immune from liability to the child’s estate under Section 2 because she was under the “direction and control” of a public employer.

In evaluating Abell-Bardsley’s motion, Judge Leibensperger rejected the simplistic notion that she was entitled to personal immunity solely by virtue of her status as a public employee. Public employees are not automatically immune for all professional conduct, reasoned the Court, including conduct not undertaken at the “direction and control of the employer.” Nurses, like doctors, are members of a profession that frequently requires “a high level of skill, training and independent judgment.” Along these lines, Abell-Bardsley’s co-defendant, Dr. Miriam Goldfarb, testified at her deposition that, while the decisions regarding Brandon’s care were the doctor’s responsibility, attending nurses in the obstetrics unit frequently exercised professional judgment in adjusting the levels of the drug Pitocin that she (Dr. Goldfarb) had prescribed to the mother. Conversely, the Court cautioned that the exercise of some modicum of professional judgment by a nurse does not necessarily preclude a finding of immunity. Relying on a case involving physician immunity, Williams v. Hartman, 413 Mass. 398, 400 (1992), the Court held that “in a particular instance of conduct by an agent of a public employer, it is a question of fact whether there was an exercise of direction and control by the employer over the agent’s actions.” The Court continued that, where the relevant facts bearing on this question are undisputed, “summary judgment is appropriate.”

In finding Abell-Bardsley immune from plaintiffs’ claims, Judge Leibensperger noted a number of factors which indicated that, at all material times, Abell-Bardsley was under the “direction and control” of her employer, Cambridge Hospital. Specifically, she (1) was paid an hourly wage; (2) was subject to the supervision of a Nurse Manager and the Director of Nursing; (3) subjectively believed, at all times, that she was subject to the control of her employer; (4) did not have any private patients, could not admit her own patients and did not bill patients; and (5) her pay was not affected by the number of patients she saw. The Court contrasted Abell-Bardsley’s circumstances with those in which physicians controlled which patients they saw, engaged in private employment and/or practiced medicine outside the direction and control of a public employer. Finally, the Court noted that, “[t]he exercise of independent professional judgment … does not, by itself, mandate a finding that the physician is outside the direction and control of his public employer.” McNamara v. Honeyman, 406 Mass. 43, 48 (1989). Furthermore, “to deny summary judgment on the sole basis that a nurse exercised professional judgment would create an exception that would swallow the rule of immunity.”

Published in Developments in Municipal Law Winter 2012 Newsletter.