Liability Protections
for Massachusetts Employees
and Volunteers
Prepared by the Massachusetts Department of Public Health
Emergency Preparedness Bureau
Priscilla 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
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.
Introduction: Basic Principles
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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:
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Were you negligent?
If so, do you have a defense?
Introduction
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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?)
Outline
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Sources of Liability Protection
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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
SOURCES OF LIABILITY
PROTECTION
I. Massachusetts Tort Claims
Act
M.G.L. Chapter 258
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§ 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.
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§ 10(c): intentional wrongdoing is not covered
$100,000 cap on damages
A. What is a public employer?

Defined in c. 258, section 1
Any of the following . . .
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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”
B. “Public employee”
3-step analysis
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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?
Step 1
Who is a public employee?
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Defined in c. 258, section 1
An “officer or employee of a public employer”
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Elected or appointed
Full or part time
Temporary or permanent
Compensated or uncompensated
Step 2
Are you subject to direction & control?
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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
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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)
Direction and control in
mutual aid agreements
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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.
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Example: an employee from Town A sent to help
Town B “remains under the direction and control”
of Town A
Can consultants or volunteers ever be
considered
“public employees”?
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Sometimes. Depends on direction and
control.
2 A.G. opinions from 1983
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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”
Step 3
Were you acting within scope of your
employment?
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Factors to consider
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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)
Bottom line
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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?
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State: Attorney General
County: District Attorney
City/Town: City solicitor/town counsel or attorney
appointed by Selectboard
C. Discretionary Functions
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You are not liable if you were performing a
“discretionary function” at the time of the act.
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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)
Definition of Discretionary
Function
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Does the government actor have any
discretion at all as to what course of action to
follow?
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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?
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High degree of discretion and judgment is
involved in weighing alternatives and making
choices with respect to public policy and planning.
Example of Discretionary
Function
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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
Not a Discretionary Function
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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).
D. Failure to Inspect
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M.G.L. c. 258, sec.10(f)
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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!]
E. Indemnity of Municipal
Officials
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M.G.L. c. 258, sec. 13.
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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.
II. Contractual Liability
Protections
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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
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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)
Contractual Protections con’t.
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Examples of liability provisions in contract con’t.
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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)
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)
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Immunity = no liability. Existence of this law is
a defense; case will be dismissed.
MG.L. c. 112, § 12C
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Case law upholds this immunity with
respect to treatment for TB at DPH-funded
clinic. Headley v. Berman (SJC 1995)
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Covers routine work as well as emergencies
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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.
IV. Protection for EMS
Personnel
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M.G.L. c. 111C, § 21
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Protects certified, accredited or approved EMS
personnel who “in the performance of their duties”
render first aid, CPR, transportation or other EMS.
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Covers them for their usual duties, but NOT when
they are off duty
Good faith requirement
V. Good Samaritan Laws
(ONLY apply to emergency situations)
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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
Good Samaritan Laws cont.
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M.G.L. c. 112, § 23BB
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Same protection as above for respiratory
therapists, but not from another state or
Canada
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(Section 12B protects doctors, nurses, and
physician assistants licensed in another state or
Canada)
In good faith, without fee
Good Samaritan Laws cont.
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M.G.L. c. 112, § 12V
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Protects any person, whose usual and regular
duties do NOT include the provision of emergency
medical care, who attempts to render emergency
care
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Care must be given in good faith, without
compensation
Does not protect against gross negligence or willful or
wanton misconduct
Good Samaritan Laws cont.
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M.G.L. c. 112, § 12F
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Protects doctors, dentists, and hospitals from
liability for failure to obtain consent from a
parent of a child, or spouse of a patient:
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when delay will endanger the life, limb, or mental
well-being of the patient
covers emergency exam and treatment, including
blood transfusions
V. Federal Volunteer
Protection Act
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42 U.S. Code § 14501 et seq.
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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
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nonprofit organizations or
governmental entities, IF:
Federal Volunteer Protection
Act cont.
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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
Federal Volunteer Protection
Act cont.
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VPA does not affect the liability of the nonprofit
organization or govt. entity, which may still be liable
for the volunteer’s misconduct. But:
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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
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.)
VII. Miscellaneous Protections
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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.”
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Dept. of Elder Affairs must make publicly available a
description of the function and the responsibilities of these
counselors.
Some Ways to Volunteer
in Massachusetts
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Official Programs
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MRC – Medical Reserve Corps
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Locally recruited, locally based
Can assist in emergencies and in routine healthrelated events (e.g. vaccination clinics)
MA Responds
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Statewide database of pre-credentialed volunteers
System is managed by DPH
Many MRC units are part of MA Responds
Some Ways to Volunteer
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DMAT teams (federal)
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Sent or released by your employer
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Paid or unpaid
“Spontaneous” volunteering
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Example: car accident
HYPOTHETICAL SCENARIOS
Scenario 1: anthrax attack
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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.
Scenario 1 con’t.
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Question 1: Will nurse jeopardize her license by
training a pharmacy student to dispense meds at an
EDS?
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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.
Scenario 1 con’t.
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Question 2: Is the nurse liable for injury to the
child?
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If the nurse is not negligent, there is no liability.
If the nurse is negligent in training the student, she is
protected by:
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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
Scenario 1 con’t.
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Question 3: Is the student liable for injury to the
child?
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If the student is not negligent, there is no liability.
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If the student is negligent in dispensing the meds, she
is protected by:
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Federal Volunteer Protection Act
Possibly Tort Claims Act, as a volunteer subject to direction
and control (if nurse is a public employee)
Scenario 1 con’t.
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Question 4: Is the board of health liable for
injury to the child?
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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.
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$100,000 cap.
Nurse and student not personally liable.
Scenario 2: Flu Vaccine Clinic
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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?
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No, because must be “duly registered or licensed”
Scenario 3: Rabid raccoon
found in Town A
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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?
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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.