HENRY SCHENKER vs. MICHAEL BINNS & another. [Note 1]

DREBEN, J. The general structure of G. L. c. 258, the Massachusetts Tort Claims Act (Act), imposes liability on a public employer for a public employee's negligent act performed within the scope of his employment and relieves the public employee from liability. See G. L. c. 258, Section 2, set forth in relevant part in the margin. [Note 2] The question before us is whether

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by casting what is essentially a negligence action in terms of contract or assault and battery, the plaintiff can exclude his claims from the operation of the Act.

The plaintiff's original complaint, in separate counts against each defendant, alleged negligence by a public employer, the University of Massachusetts, and by two public employees, an unnamed doctor (John Doe), and an orderly, Michael Binns. After the action against the University was dismissed for failure to follow the presentment requirements of G. L. c. 258, Section 4, see Vasys v. Metropolitan Dist. Commn., 387 Mass. 51, 55 (1982), and after the plaintiff had been allowed to amend his complaint by inserting the name of the physician, the individual defendants moved to dismiss the action against them. Their motions were allowed.

The plaintiff unsuccessfully sought leave to file a second amended complaint which made the same claims against the individual defendants, namely that the doctor left the patient in the hands of an unqualified orderly and that the orderly, in removing a pin from the plaintiff's leg, cut the patient's flesh. Instead of alleging negligence, the claims now were framed in terms of breach of contract and assault and battery. There was no error in the denial of the plaintiff's motion to amend and in the entry of judgment for the defendants, as no claim for relief had been stated in the amended complaint against the public employees. See G. L. c. 258, Section 2 (note 2, supra).

The plaintiff urges that the Act applies only to negligence claims, that actions in contract are not covered and that Section 10(c) of the Act provides a specific exclusion for intentional torts, including assault and battery. [Note 3]

1. Contract claims. Other statutes governing actions of tort have been construed by the Supreme Judicial Court and this court to cover claims sounding in contract. The reason is that

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there is "essentially little difference between the elements of proof in a tort action for personal injury and a contract action for the same . . . . The duty of the defendant is the same whether the action is in tort or in contract." Thomas v. Massachusetts Bay Transp. Authy., 389 Mass. 408, 409-410 (1983). See Scandura v. Trombly Motor Coach Serv., Inc., 370 Mass. 612, 618 (1976). See also Wolfe v. Ford Motor Co., 386 Mass. 95, 98-100 (1982); Klein v. Catalano, 386 Mass. 701, 719-720 & n.19 (1982); O'Malley v. Putnam Safe Deposit Vaults, Inc., 17 Mass. App. Ct. 332, 343-344 (1983). An examination of the plaintiff's second amended complaint shows that the contract counts are not substantially different from those previously raised in the negligence counts -- what is at stake here is a malpractice action based on negligence. [Note 4] See Woolley v. Henderson, 418 A.2d 1123, 1135 (Me. 1980).

The policy against allowing form to prevail over substance is particularly strong in construing the Act in view of the explicit provision in Section 2 making its remedies exclusive. Accordingly, we hold that where, as here, the "essential nature of the plaintiff's claim is recovery for personal injuries founded on . . . negligence," Thomas v. Massachusetts Bay Transp. Authy., 389 Mass. at 410, his action, whether it be denominated tort or contract, is governed by c. 258. Cf. Krysztalowski v. Fortin, 108 N.H. 187, 189 (1967).

2. Assault and battery. The plaintiff fares no better in his claim for assault and battery, although he correctly points out that the technical elements of a battery are satisfied by his allegation that the removal of the pin by the orderly was without his consent. Reddington v. Clayman, 334 Mass. 244, 245-247 (1956). Matter of Spring, 380 Mass. 629, 638 (1980). He is also correct that c. 258, Section 10(c), see note 3, supra, establishes an exception to the application of c. 258 for intentional torts, including assault and battery. Here again, however, we must look not to the theory upon which the plaintiff elects to proceed,

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but rather to the substance of the claim which he asserts. Wolfe v. Ford Motor Co., 386 Mass. at 100. [Note 5]

The Federal cases construing the Federal Tort Claims Act provide guidance in construing this section of the Act. Ortiz v. Hampden, 16 Mass. App. Ct. 138, 139-140 (1984). See Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 611 (1980). In Lane v. United States, 225 F.Supp. 850 (E.D. Va. 1964), a doctor operated on the plaintiff's right leg instead of on his left leg. While acknowledging that the surgeon committed a "technical" assault and battery, the court held that the exception for "assault and battery" did not apply. There was no intentional wrongful act on the part of the surgeon; the act was one of "sheer carelessness." Id. at 852-853. See also Woods v. United States, 720 F.2d 1451, 1453 (9th Cir. 1983), and Ramirez v. United States, 567 F.2d 854 (9th Cir. 1977). Contra Moos v. United States, 225 F.2d 705 (8th Cir. 1955). There is here no allegation of an intentional wrongful act. See and compare Lojuk v. Quandt, 706 F.2d 1456, 1458, 1461 (7th Cir. 1983).

As stated by the Supreme Court of Maine "It places form over substance to elevate what is essentially a negligence action to the status of an intentional tort based on the fortuity that touching is a necessary incident to treatment." Woolley v. Henderson, 418 A.2d at 1133.

Judgment affirmed.