Florio v. Kennedy

MEMORANDUM RE DEFENDANT’S MOTION TO DISMISS

The named defendant, Dr. James Kennedy, M.D., has moved to dismiss this complaint on the grounds that at all times relevant he was an employee of the Commonwealth and therefore not liable to suit under G.L. c. 258, sec. 2. Since the parties have submitted this motion on affidavits, I treat it as a motion for summary judgment: Mass.R. Civ. P. 12(b).

The issue of whether a physidan who provides medical services at fadlities of the Commonwealth is an employee of the Commonwealth for the purposes of the Tort Claims Act, G.L. c.258, sec. 2, is one of fact.…