McNamara v. Honeyman

• Decision Date: 13 November 1989
• Citation: 406 Mass. 43,546 N.E.2d 139
• Parties: Luciette C. McNAMARA 1 et al. v. David HONEYMAN et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 139

546 N.E.2d 139

406 Mass. 43

Luciette C. McNAMARA ¹ et al. v. David HONEYMAN et al. ²

Supreme Judicial Court of Massachusetts Suffolk.

Argued Jan. 4, 1989.

Decided Nov. 13, 1989.

Harry L. Miles (David C. Kuzmeski, Belchertown, with him), for plaintiffs.

Robert V. Deiana (Richard C. Van Nostrand & William S. Rogers, Jr., Worcester, with him) for David Honeyman.

Vincent L. DiCianni, Sp. Asst. Atty. Gen. (Robert J. Kilmartin, Asst. Atty. Gen., with him) for Com.

Before LIACOS, C.J., WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

NOLAN, Justice.

On December 17, 1980, twenty-year-old Karen McNamara hanged herself at Northampton State Hospital (hospital). She died almost three months later as a result of her injuries. The plaintiffs claimed, among other things, that Dr. David Honeyman, Karen's psychiatrist, was grossly negligent when he took Karen off round-the-clock, one-on-one observation and ordered that a staff member check on her every fifteen minutes.

A jury found Honeyman grossly negligent, found the Commonwealth liable for negligence, and found Honeyman and the Commonwealth liable for Karen's conscious pain and suffering and for violation of Karen's Federal civil rights. The jury awarded damages of $1.7 million, including $190,000 in punitive damages against Honeyman.

The trial judge, after considering motions for amending the judgment, new trial and judgment notwithstanding the verdict, entered a judgment ³ of $100,000 against the Commonwealth on the negligence claim. The judge ruled there was insufficient evidence to find Honeyman grossly negligent, and entered judgment notwithstanding the verdict in favor of Honeyman and the Commonwealth on the claims that they violated Karen's Federal civil rights and that Karen suffered conscious pain before her death. ⁴ The judge left undisturbed the jury's finding, made in response to a special question, that Honeyman was a public employee. Both plaintiffs and defendants appealed to the Appeals Court. We granted Honeyman's petition for direct appellate review. We affirm the judgment.

When acting on the defendants' motions for judgment notwithstanding the verdict, the judge's task, "taking into account all the evidence in its aspect most favorable to the plaintiff, [is] to determine whether, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, the jury reasonably could return a verdict for the plaintiff." Tosti v. Ayik, 394 Mass. 482, 494, 476 N.E.2d 928 (1985), quoting Rubel v. Hayden, Harding & Buchanan, Inc., 15 Mass.App.Ct. 252, 254 (1983). The court will consider whether "anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn" in favor of the non-moving party. Poirier v. Plymouth, 374 Mass. 206, 212, 372 N.E.2d 212 (1978), quoting Raunela v. Hertz Corp., 361 Mass. 341, 343, 280 N.E.2d 179 (1972). The inferences to be drawn from the evidence must be based on probabilities rather than possibilities and cannot be the result of mere speculation and conjecture. Id.

1. Application of the Massachusetts Tort Claims Act. In analyzing whether the defendant Honeyman is immune from personal liability under G.L. c. 258, commonly referred to as the Massachusetts Tort Claims Act, we must determine whether Honeyman was a public employee. Section 2 of chapter 258 extends immunity from personal liability to public employees who are acting within the scope of their duties. If a defendant is a public employee and his conduct constitutes simple or ordinary negligence, § 2 of chapter 258 clearly applies and the Commonwealth, as a public employer, is liable for the harm and the employee is not liable. The question of whether G.L. c. 258 immunizes an employee from gross negligence as well as ordinary negligence has not been answered by our cases to date. Two sections of c 258 come under review in resolving this issue. Section 2 renders the public employer but not the public employee liable "for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission." Section 10, which provides for exemptions from operation of § 2, among others, states in pertinent part that a public employee shall not be immune from "any claim arising out of an intentional tort ..." It is silent as to gross negligence and hence, we conclude that a public employee is immune from a claim arising out of gross negligence because such a claim qualifies as a "negligent or wrongful act or omission" under § 2. Accordingly, it is not material whether Honeyman's conduct constituted gross negligence or merely ordinary negligence for purpose of G.L. c. 258.

On the issue of Honeyman's employment status, we agree with the trial judge that there was sufficient evidence to support the jury's verdict on a special question that Honeyman was a public employee. Honeyman joined the University of Massachusetts Medical School staff in 1980 as a psychiatrist, lecturer and assistant professor of psychiatry. His assignment included providing psychiatric services at the hospital, under a contract between his employer, the University of Massachusetts, and the State Department of Mental Health.

The plaintiffs contend that the University of Massachusetts Medical School is an independent body politic and not a public employer as defined by G.L. c. 258, § 1. ⁵ The plaintiffs argue that if the University of Massachusetts is not a public employer, Honeyman is not a public employee.

To be deemed an "independent body politic," the university "must constitute an entity in itself and must have an existence apart and distinct from that of the Commonwealth." Opinion of the Justices, 334 Mass. 721, 734, 136 N.E.2d 223 (1956). An examination of G.L. c. 75 makes clear that the university is an agency of the Commonwealth and thus is a public employer. Section 8 of c. 75 gives the State Comptroller authority to regulate the university's annual appropriations. The purchasing power of the university's board of trustees is limited by G.L. c. 75, § 13. Employees of the university are designated Commonwealth employees in § 14. The sale and lease of land by the trustees of the university are made in the name of the Commonwealth and are regulated by statute, G.L. c. 75, §§ 25, 26 and 27.

Although the Legislature has empowered the trustees of the University of Massachusetts to establish a group practice at the medical center and to collect fees for medical services (St.1974, c. 733, §§ 1-7), the medical center is still primarily dependent on the Commonwealth, G.L. c. 75, § 8, and accountable to it in financial affairs. G.L. c. 75, § 10. The medical school has no authority to issue bonds. It cannot sue or be sued in its own name. All of these factors indicate that the university is an agency of the State, and not a separate entity.

The fact that the University of Massachusetts is a public employer does not automatically establish that all its employees are public employees. Smith v. Steinberg, 395 Mass. 666, 668, 481 N.E.2d 1344 (1985). The test for determining whether an individual is a public employee is the same as that used to establish "whether an agent is a servant for whose negligent acts a principal may be liable under the common law doctrine of respondeat superior." Kelley v. Rossi, 395 Mass. 659, 661, 481 N.E.2d 1340 (1985). While physicians exercise independent judgment, a physician can still be deemed a servant where the principal controls the details of the physician's activities. See id. at 662, 481 N.E.2d 1340.

There was sufficient evidence from which the jury could conclude that Honeyman's employer controlled the details of his activities. Honeyman's superiors regulated his hours. He had no say as to the ward in which he would work or the patients that he would treat, unlike the physician in Smith v. Steinberg, supra 395 Mass. at 669, 481 N.E.2d 1344. Honeyman did not have any private patients and his income was not based on the number of patients he treated. The judge correctly left the jury's finding undisturbed.

Because Honeyman was a public employee, the Commonwealth is liable for his negligent conduct under G.L. c. 258, § 2, and the plaintiffs' claim for common law negligence against Honeyman (Count VI) fails. If we agree with the trial judge that the evidence supported a finding that Honeyman was negligent, we need not examine the plaintiffs' additional basis for charging liability against the Commonwealth. ⁶ Accordingly, we need look only at Honeyman's treatment of Karen.

2. Negligence. The trial judge ruled that the evidence supported a finding of negligence but did not support the jury's finding of gross negligence. We agree with the trial judge's conclusion. The defendants contest the judge's denial of a motion for judgment notwithstanding the verdict on the finding of negligence. The plaintiffs challenge the judge's denial of their motion to amend his judgment, which asked that jury's finding of gross negligence be reinstated.

The defendants contend that Honeyman was not negligent in his treatment of Karen. The Commonwealth, as a public employer, is liable under G.L. c. 258, § 2, if the jury reasonably found that there was a duty owed to Karen, that there was a breach of such duty by Honeyman, that injury resulted from the breach and that a causal connection existed between the breach and the injury. Dinsky v. Framingham, 386 Mass. 801, 804, 438 N.E.2d 51 (1982).

The standard of care required of a psychiatrist is consistent with that of a medical practitioner. Stepakoff v. Kantar, 393 Mass. 836, 840, 473 N.E.2d 1131 (1985). The psychiatrist must exercise the same degree of skill and care as is exercised by the average qualified practitioner in that specialty, taking into account the advances in that profession and the resources available to the physician. Id. at 840, 473 N.E.2d 1131.

Karen was...