United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DENISE J. CASPER, District Judge.
Plaintiff Yanick Jacques ("Jacques") brings this action against the United States of America, Mark Beaumont, M.D. ("Beaumont"), Philipp Severin III, M.D. ("Severin"), Jo-Ann Winbush ("Winbush") and the Codman Square Health Center, Inc. ("Codman") alleging negligence and seeking relief under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b). The United States accepted the defense of Severin and Winbush along with the defense of Codman as to Severin and Winbush's acts pursuant to 28 U.S.C. § 2679. D. 14, 24. Codman now moves for summary judgment as to its liability for Beaumont's acts, D. 41, and the United States moves for summary judgment as to its liability for Severin and Winbush's acts and Codman's vicarious liability for those acts, D. 43. For the reasons stated below, the Court DENIES both motions.
II. Standard of Review
Summary judgment is appropriate when "the movant shows that there is no genuine dispute as any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in favor of the non-moving party." Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008) (quoting Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The party seeking summary judgment bears the initial burden of demonstrating that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets this burden, the non-moving party must produce specific facts "sufficient to deflect the swing of the summary judgment scythe." Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003). The Court must view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in her favor. O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993). However, the non-moving party cannot simply rely on conclusory allegations and improbable inferences. Ahern v. Shinseki, 629 F.3d 49, 54 (1st Cir. 2010). "[W]hen the facts support plausible but conflicting inferences on a pivotal issue in the case, the judge may not choose between those inferences at the summary judgment stage." Coyne v. Taber Partners I, 53 F.3d 454, 460 (1st Cir. 1995).
III. Factual Background
Unless otherwise indicated, this summary is drawn from the United States and Codman's joint statement of material facts, D. 45, and Jacques's response thereto, D. 52. Jacques has a history of mental illness and has exhibited symptoms of post traumatic stress disorder. D. 52 (Pl.'s Stmnt. of Material Facts) at 11 ¶ 8. Beginning in October 2007, Beaumont was Jacques's primary care physician at Codman. D. 45 ¶ 2. Beaumont determined that Jacques required specialized psychiatric care and, in January 2008, referred her to Codman's Behavioral Health department. Id . ¶ 3. Jacques refused and did not seek treatment from the Behavioral Heath department until August 2008, after she experienced a psychiatric crisis that required inpatient care. Id . ¶ 4; D. 52 at 12, 13 ¶¶ 12, 22. Jacques also continued to receive counseling from Beaumont. D. 52 at 13-14 ¶¶ 23-30. From January 2008 through November 2008, Jacques saw Beaumont about twice a month. D. 45 ¶ 5. During many of those visits, Beaumont provided mental health counseling to Jacques and prescribed psychiatric drugs to her. Id . ¶ 6; D. 52 at 12 ¶ 10. Beaumont acknowledges that he had minimal training in psychiatric care and did not appreciate the concepts of transference and countertransference. D. 45 ¶ 1.
In late 2008, Beaumont became concerned that Jacques was developing romantic feelings towards him. Id . ¶ 7. On November 24, 2008, Jacques discussed her feelings with her mental health counselor at Codman who informed Jacques that she would be transferred to a different primary care provider. Id . ¶ 9. Winbush, then Codman's Manager for Patient Services, was informed of the transfer. Id . ¶ 10. Winbush told Jacques that she should not see Beaumont anymore, but Winbush did not communicate any such prohibition to the scheduling staff. D. 52 at 16 ¶ 39. Severin, Codman's medical director, was also made aware of Jacques's boundary issues. D. 45 ¶¶ 46-47.
Despite the transfer, Jacques saw Beaumont at several subsequent Codman visits. In March 2009, Jacques sought urgent care at Codman on a walk-in basis and Beaumont was, coincidentally, the doctor who treated her. Id . ¶ 12. Jacques made an appointment to see Beaumont on April 23, 2009. Id . ¶ 14. Although Beaumont expressed concern to Winbush, he saw Jacques after Winbush assured him that Jacques would be reassigned to another provider. Id . Beaumont did not provide mental health counseling to Jacques at these visits. Id . ¶¶ 13-14. From the April 23, 2009 visit until May 27, 2010, Jacques saw other Codman providers a total of twelve times. Id . ¶ 16.
In early 2010, Beaumont began to visit Jacques at her home. Id . ¶ 19. Eventually the visits grew more personal and, in early May 2010, Beaumont and Jacques had sexual relations. Id . ¶¶ 22-23. They had more sexual encounters, all at Jacques's home, prior to May 27, 2010. Id . On that date, Jacques had a scheduled office visit with Beaumont to insert an IUD. Id . ¶ 24. Beaumont and Jacques's sexual relationship continued through the summer of 2010, taking place outside of Codman until August 2010 when they had sex at Codman, unrelated to a medical visit by Jacques with Beaumont. Id . ¶¶ 26, 28. At this point the parties differ as to the frequency and nature of their sexual encounters at Codman. Jacques asserts that she and Beaumont had sex at Codman during medical appointments at least twelve times. Id . ¶¶ 30-31; D. 52 ¶ 47. Beaumont emphasizes that their sexual encounters at Codman were limited to two, in August 2010 and April 2011, and were not connected to Beaumont's provision of medical care. D. 45 ¶ 32.
Jacques saw Beaumont in a medical capacity several more times. In October 2010, he treated her during a walk-in urgent care visit. Id . ¶ 34. There was another urgent care visit on February 2011 at which Jacques's IUD was removed. Id . ¶ 37. Two scheduled medical visits occurred in April 2011. Id . ¶ 38. At none of these visits did Jacques and Beaumont have sexual relations, but he did provide her with basic mental health counseling during the April appointments. Id.
Jacques alleges that in May 2011 she informed Beaumont that she was pregnant. D. 1 ¶ 16. He urged her to terminate the pregnancy and she resisted. Id . Without informing Jacques, Beaumont allegedly prescribed a drug to induce an abortion. Id . ¶ 17. Jacques later learned that the pregnancy was likely ectopic and she would miscarry. Id . Jacques alleges that Beaumont, Severin and Winbush's conduct caused her to suffer personal, emotional and psychological injury. Id . ¶¶ 23, 27, 31, 35, 39, 43, 47, 51.
IV. Procedural History
On April 30, 2012, Jacques made an administrative claim under the FTCA alleging significant boundary violations by Beaumont and claiming physical and emotional injuries. D. 1-1. She also alleged negligence on the part of Winbush and Severin for failing to prevent her sexual relationship with Beaumont. Id . Jacques's administrative claim was denied. D. 1-2. She then commenced this action. D. 1. The United States accepted tender of defense on behalf of Winbush and Severin and on behalf of Codman as to its vicarious liability for Winbush and Severin's conduct. D. 14, 24. The United States did not accept the defense of Beaumont or Codman with respect to Beaumont's ...