Home BRADLEY W. MARSH & others [Note 1] vs. ALAN B. BULOTSKY.

408 Mass. 1002

November 5, 1990

Laura J. Krims for Alan B. Bulotsky.

Michael R. Hugo, for the plaintiffs, submitted a brief.

The plaintiffs appeal from the allowance of the defendant's motion for summary judgment. We affirm the judgment.

By statute (G. L. c. 112, Section 12C [1988 ed.]), a physician who administers immunization under a public health program shall not be liable in a civil suit for damages, as a result of any act or omission in carrying out his duties. The defendant administered an injection to the child plaintiff to immunize him from various diseases. The plaintiffs allege negligence in the administration of the vaccine, which was manufactured and distributed by the Commonwealth without charge to the defendant. The defendant charged the plaintiffs a fee for administration of the vaccine, but was carrying out the public health program of the Department of Public Health.

Our inquiry, in part, in reviewing a grant of summary judgment, is whether there is a genuine issue of material fact. See Mass. R. Civ. P. 56(c), 365 Mass. 824 (1974). The language of the immunity statute, G. L. c. 112, Section 12C, is clear.

The plaintiffs contend that, on this record, whether the defendant administered the vaccine as part of a public health program is a genuine issue of material fact, and hence it was error (the argument continues) to allow the motion for summary judgment. The judge noted in his memorandum of decision on the motion for summary judgment that it was "conceded that [the defendant] administered the vaccine pursuant to a governmental health program." The plaintiffs argue that it was error for the judge to find this concession but they fail to support their argument. Contrary to the plaintiffs' argument, the judge did not find that the plaintiffs conceded the immunity of the statute. They conceded (the judge found) that the defendant administered the vaccine under a public health program.

Judgment affirmed.


[Note 1] Theresa Marsh, his wife, and Eric Marsh, their minor child.