385 Mass. 772 (1982), Massachusetts General Hospital v. City of Revere

Citation:385 Mass. 772, 434 N.E.2d 185
Case Date:April 12, 1982
Court:Supreme Judicial Court of Massachusetts

Page 772

385 Mass. 772 (1982)

434 N.E.2d 185




Supreme Judicial Court of Massachusetts, Suffolk.

April 12, 1982

Argued Dec. 11, 1981.

Laurence S. Wolk, Chestnut Hill, for Massachusetts General hospital.

Ira H. Zaleznik, Boston, for the City of Revere (Valerie L. Pawson, Boston, for the City of Revere and Carl Valvo, Asst. Atty. Gen., for the Commonwealth, with him).


NOLAN, Justice.

On September 20, 1978, city of Revere police responded to a reported breaking and entering in progress.

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Upon arrival at the scene, they observed Patrick M. Kivlin with [434 N.E.2d 186] a suitcase and a pillowcase. Kivlin fled and, after repeated warnings to stop and one warning shot, was shot by a police officer. The police summoned an ambulance, which took Kivlin, accompanied by a police officer, to Massachusetts General Hospital (hospital). Kivlin was admitted and remained a patient at the hospital until September 29, 1978.

On September 26, 1978, a warrant issued in the Chelsea Division of the District Court Department for Kivlin's arrest on charges of breaking and entering in the nighttime, larceny, and conspiracy. On September 29, 1978, Kivlin was discharged by the hospital 1 into the custody of the Revere police department and was taken by the police to the Chelsea District Court for a probable cause hearing. The judge granted a continuance to Kivlin 2 and released him on personal recognizance. 3 On October 27, 1978, prior to the probable cause hearing, Kivlin returned to the hospital for treatment, including surgery. 4 He was released on November 10, 1978. 5 A bill for Kivlin's first admission at the hospital was sent to the Revere police department. The chief of police of Revere, responding to the request for payment, stated in a letter to the hospital that Revere had no provision for payment of the bill.

The hospital commenced this action against Revere seeking to recover the full cost of the medical services rendered

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to Kivlin during both stays at the hospital. Revere answered and filed a third-party complaint against Kivlin and the Commonwealth for reimbursement. The hospital moved for summary judgment, and the case was referred to a special master. Thereafter, upon the master's recommendation, a Superior Court judge denied the hospital's motion for summary judgment, dismissed the complaint and third-party complaint, and entered judgment in favor of Revere. Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). The hospital appealed, and we transferred the case to this court on our own motion.

The hospital claims, both on contractual and constitutional grounds, that Revere is obligated to pay for the necessary medical services provided to Kivlin. While there is no contractual basis for recovery, we hold that the constitutional prohibition against cruel and unusual punishment, embodied in the Eighth Amendment to the United States Constitution, requires that Revere be liable to the hospital for the medical services rendered to Kivlin during his first stay at the hospital, but not during his second stay.

1. Contract. The hospital contends, first, that some kind of implied contract between the hospital and Revere was concluded when the police brought Kivlin to the hospital and he was admitted for treatment. We disagree.

Several prerequisites must be in place before a municipality can be said to have entered into a valid contract. First among these is an underlying authority in the municipality to make the contract. Lord v. Winchester, 355 Mass. 788, 789, 244 N.E.2d 730 (1969). We have found no basis, either statutory or in common law, that gives to Revere the authority to contract with a hospital for the care and treatment of a suspect shot while attempting to evade police. Municipalities are given the power to contract for health services, G.L. c. 40, § 4, but those contracts may be entered into only by a board of health or a "legally constituted board performing the powers and duties of a board of health." G.L. c. 40, [434 N.E.2d 187] § 4, sixth par., inserted by St.1965, c. 874, § 3. Here, the hospital sent its bill to the Revere police department, an agency

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not performing the powers and duties of a board of health. The hospital, admitting that there are no statutes authorizing its purported contract with Revere, looks hopefully to the common law for authority. There is no such authority. There can be no contract with Revere unless statutory requirements are fulfilled. See Urban Transp., Inc. v. Mayor of Boston, 373 Mass. 693, 696, 369 N.E.2d 1135 (1977); Richard D. Kimball Co. v. Medford, 340 Mass. 727, 729, 166 N.E.2d 708 (1960).

In addition to the necessity for an underlying authority for a municipality to contract, any contract made on behalf of a city must be made by a duly authorized agent. Lord v. Winchester, supra. The powers of police officers are delineated in detail in G.L. c. 41, § 98. Nowhere in § 98 is the power to contract given to police. They do not have such power, and are not, therefore, a duly authorized agent of a city to contract.

Furthermore, even if the police had the authority to contract, several statutory requirements for a valid...

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