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Medeiros v. Ewing

Superior Court of Massachusetts, Middlesex

March 30, 2016

Steven Medeiros et al. [1]
v.
Neil Ewing, PA-C et al. [2] No. 133180

          MEMORANDUM AND ORDER ON DEFENDANT NEIL EWING, PA-C'S MOTION FOR SUMMARY JUDGMENT

          Peter B. Krupp, Justice of the Superior Court.

         Plaintiffs Steven and Patricia Medeiros allege that Neil Ewing (" Ewing"), a physician assistant, negligently managed Mr. Medeiros's anticoagulation during his perioperative visits to the Cambridge and/or Somerville Hospitals around the time of his right knee disarticulation surgery in August 2009. In 2009, the Cambridge Public Health Commission owned Cambridge and Somerville Hospitals, which operated as Cambridge Health Alliance (" CHA"). CHA was a " public employer" under the Massachusetts Tort Claims Act (" MTCA"), G.L.c. 258, § 1 et seq. Ewing, who worked for CHA, moves for summary judgment, arguing he is immune from suit as a public employee under G.L.c. 258, § 2. For the following reasons, after hearing and review of plaintiffs' post-hearing submission, [3] the motion is ALLOWED .

         BACKGROUND

         In 2009, Ewing was a physician assistant employed by CHA in its Department of Orthopedic Surgery.[4] The Chief Physician Assistant in the Department of Orthopedic Surgery (" the Chief P.A."), a CHA employee, was Ewing's immediate supervisor. Defendant Samuel Doppelt, M.D., the Chief of Orthopedic Surgery at CHA, was Ewing's supervising physician. The Chief P.A. and Dr. Doppelt set Ewing's work schedule and hours. Ewing did not have any private patients at CHA, other than those he saw under Dr. Doppelt's supervision; and had no admitting privileges at CHA.[5] Ewing was paid an hourly wage based on the number of hours he worked, unaffected by the number of patients he cared for. He did not receive performance bonuses, profit-sharing, or other financial incentives. CHA paid his wages, provided him a W-2 form, and provided all of his employment benefits, including vacation time, sick pay, health insurance, malpractice insurance, and retirement benefits. Ewing did not bill CHA patients directly for his services.

         Mr. Medeiros was Dr. Doppelt's patient. In August 2009, Mr. Medeiros had surgery at Cambridge Hospital. Dr. Doppelt performed the surgery with Ewing's assistance. With respect to Ewing's treatment of patients at CHA, including Mr. Medeiros, Ewing was acting under Dr. Doppelt's direction. Ewing testified at his deposition:

Q You mentioned earlier that you were working under the license of Dr. Doppelt in 2009?
A Correct.
Q Was Dr. Doppelt able to tell you what to do in carrying out your clinical responsibilities to patients?
A Yes.
Q Direct you to order certain tests?
A Yes.
Q Could direct you to give or not give certain medications?
A Correct.
Q Direct you to write orders as to when medication should be ...

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