Attorney General: Honorable Gerald N. Tirozzi, Department of Education, 1991-012 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

April 3, 1991

Honorable Gerald N. Tirozzi
Commissioner
Department of Education
165 Capital Avenue
Hartford, CT 06106

Dear Commissioner Tirozzi:

We are writing in response to your letter of February 19, 1991 in which you request our advice concerning whether certain physicians and psychologists, who serve as "medical consultants" and "psychological/psychiatric consultants'' to the Division of Rehabilitation Services and who are hired pursuant to personal services agreements, are immune from personal liability pursuant to Connecticut General Statutes 4-165. For the reasons discussed below, it is our opinion that these physicians and psychologists are immune from liability under the conditions set forth in that statute.

Conn. Gen. Stat. 4-165 provides in part:

No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter.

In addition, state officers and employees are entitled to indemnification against any financial loss or expense arising from the discharge of their duties as long as their actions are not wanton, reckless or malicious. Conn. Gen. Stat. 5-141d. In such claims state officers and employees are entitled to a defense provided by the state. Conn. Gen. Stat. 5-141d.

For purposes of the protections afforded by Conn. Gen. Stat. 4-165, the key issue is the definition of a "state officer or employee" which is found in Conn. Gen. Stat. 4-141. That definition includes "every person elected or appointed to or employed in any office, position or post in the state government, whatever his title, classification, or function and whether he serves with or without remuneration or compensation" and specifically includes "any physicians or psychologists employed by any state agency." Conn. Gen. Stat. 4-141.

Although at least one superior court decision has held that mere status as a physician under contract to a state agency is enough to warrant inclusion as a "State employee" for purposes of immunity from personal liability under Conn. Gen. Stat. 4-165,1 in each instance where we have been asked whether certain physicians under contract to a state agency were immune from personal liability, the key consideration has been whether a bona fide employment relationship had been established. See, 85 Conn. Op. Atty. Gen. 8 (1985) (advising Commissioner of Corrections that certain sub-contract physicians had immunity); 86 Conn. Op. Atty. Gen. 419 (1986) (advising the Commissioner of Mental Health that certain contract psychiatrists had immunity); 86 Conn. Op. Atty. Gen. 34 (1986) (advising the Commissioner of Income Maintenance that certain contract physicians acting as "medical consultants" were state employees for purposes of 4-165).

In determining whether an employer-employee relationship exists, the primary determinant is: "Has the employer the general authority to direct what shall be done and when and how it shall be done-the right of general control of the work?" Kaliszewski v. Weathermaster Alsco Corp., 148 Conn. 624, 629 (1961). The basic distinction between an independent contractor and an employee lies in who has the right to control the means and method of work. See Francis v. Franklin Cafeteria, Inc., 123 Conn. 320, 324 (1937); Lassen v. Stamford Transit, 102 Conn. 76 (1925). If the employer controls the details of the work, that is, the manner in which the work is performed, it is strong evidence that the relationship is that of an employer-employee. Darling v. Burrows Brothers, Inc., 162 Conn. 187, 195-196 (1972); Beaverdale Memorial Park, Inc., v. Danaher, 127 Conn. 175, 179 (1940).

From the information contained in your request, as well as additional information provided by your staff, we conclude that the Department of Education directs the work that is performed by the contract physicians and psychologists who serve as "consultants" to the Department's Rehabilitation Services. It is our understanding that these physicians and psychologists do not determine eligibility for rehabilitative services but rather assist your staff by reviewing medical information to identify functional limitations; by advising on the adequacy of medical data; by clarifying the need for additional diagnostic services; by recommending medical and psychiatric treatment services; by monitoring client progress reports; and generally by acting as a liaison for the Division with the medical community. It is important to note that these physicians and psychologists rarely, if ever, see the Division's clients; they do not provide medical treatment to the clients.

In essence, these contract physicians and psychologists assist the Division by conduction file reviews. They all carry the same title and are paid the same hourly rate. The nature of their duties is similar, and they work regularly scheduled hours at state offices. While the contract physicians and psychologists are expected to use their independent professional judgment in conducting their reviews, they do not make final decisions with respect to eligibility for the Division's services. However, their reviews are an integral part of the administration of the Division's programs. Their activities are guided by the Division in conformance with specific state and federal policies and procedures.

Thus, for all of the above reasons, it is our opinion that physicians and psychologists under contract to the Department's Division of Rehabilitation Services as "medical consultants" and "psychological/psychiatric consultants" are encompassed in the statutory definition of "state officers and employees" (Conn. Gen. Stat. 4-141) and as such are protected from personal liability under the provisions of Conn. Gen. Stat. 4-165.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL


Robert W. Grant
Assistant Attorney General

RB/RWG/mu


1 Becker v. Serafini, Judicial District of Hartford/New Britain at Hartford, Docket No. 246289, February 27, 1981, Borden, J.


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