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Zucco v. Kane6/6/2002
iced as to require reversal. See Drake v. Goodman, 386 Mass. 88, 94 (1982). In the present case the issue of Dr. Kane's negligence was so tied to the plaintiff's credibility that we cannot say that the erroneous and systematic emphasis on her seemingly glaring "admissions" and "inconsistent statements" in the settlement agreement did not affect the finding of no negligence.
4. IME's cross appeal. At the close of the plaintiff's case, and again at the close of the evidence, IME moved for a directed verdict on the plaintiff's claim of vicarious liability, which was based on the plaintiff's contention that Dr. Kane was IME's agent, servant or employee. The trial judge denied the motions, and the defendant argues that there was insufficient evidence for a jury to find IME vicariously liable.
While no general rule can be stated for determining vicarious liability in the medical area as the cases are "fact specific," Hohenleitner v. Quorum Health Resources, Inc., 435 Mass. 424, 438 (2001), some broad outlines were set forth in Kelley v. Rossi, 395 Mass. 659, 661 (1985): "The right to control an agent's activities has been the guiding principle in deciding cases involving an assertion of vicarious liability against the agent's principal." While a physician is not always an independent contractor, "the very nature of a physician's function tends to suggest that in most instances he will act as an independent contractor. Another person, unless a physician himself, would have no right (or desire) to exercise control over the details of the physician's treatment of a patient; the profession is distinct and requires a high level of skill and training; and the physician must use independent judgment." Id. at 662.
The plaintiff points to the following evidence in the record on appeal to support the conclusion that a jury would be warranted in finding that IME exercised sufficient control over its physicians for it to be vicariously liable. IME provided the examining rooms, the equipment, and the staff support for the examinations. It scheduled the appointments and selected the physician who would examine a particular patient, although a physician had the right to refuse to see a given patient. IME had a format for the physicians to follow in drafting their reports, and reviewed those reports to make sure that all the questions were answered. IME kept the files on the patients examined and provided all the clerical help. It paid the physicians a fee for each examination. It set rules prohibiting the physicians from providing treatment for, or discussing the results of their examinations with, the examinees.
The foregoing indicates that IME exercised control over the format of the reports and the record-keeping for the examination. The appropriate degree of IME's right of control for purposes of vicarious liability, however, depends on the conduct which is claimed to be negligent, in this case the degree of care and skill in examining a person with the plaintiff's symptoms that would have been used by the average orthopedic surgeon. See Hohenleitner v. Quorum Health Resources, Inc., 435 Mass. at 436, 438 n.11. "Vicarious liability for th failure [to use appropriate care] should be premised on the right to control the physical conduct of [Dr. Kane] in the course of [his examination of patients]," id. at 436, in short, his clinical activities.
When the question of control is posed in this form, there is no question that IME did not exercise or have such right of control. There were no physicians supervising Dr. Kane or even setting the procedures and policies. See Smith v. Steinberg, 395 Mass. 666, 668 (1985) (trustees adopted rules relative to the operation and governance
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