Were Connecticut's contracted rehabilitation medical consultants protected from personal liability as state employees?

Plain-English summary

The Attorney General concluded that physicians and psychologists hired through personal-services agreements to review files for Connecticut's Division of Rehabilitation Services were covered as state officers or employees under the immunity statute. Their work was directed by the Department of Education, was integral to the Division's programs, and took place on regular schedules at state offices. They generally did not treat clients or make final eligibility decisions. On those facts, the opinion said they were “protected from personal liability under the provisions of Conn. Gen. Stat. § 4-165.”

The immunity provision applied to damage or injury caused in the discharge of duties or within the scope of employment, excluding wanton, reckless, or malicious conduct. The opinion also discussed a separate statute providing defense and indemnification for state officers and employees under similar limits. It did not make every person with a state contract a state employee; its analysis turned on the agency's right to control the consultants' work and on their actual roles.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

For rehabilitation medical and psychological consultants: The opinion treated the consultants it described as state employees for § 4-165 because the Division directed their file-review work, the consultants worked regular hours at state offices, and used their recommendations within its own decision process. They still used independent professional judgment, but did not decide eligibility or provide treatment to clients.

For state agency managers: The opinion identified the “right of general control of the work” as the main employee-versus-contractor factor. It cited a Superior Court decision taking a broader view of contract physician status, but based this conclusion on a bona fide employment relationship shown by the facts supplied by the agency.

Common questions

Did a personal-services contract prevent these consultants from getting state-employee immunity?

No. The Attorney General found that the agency-controlled working relationship brought these particular physicians and psychologists within the statutory employee definition, notwithstanding the contract form.

Was a contracted physician automatically immune under this opinion?

The opinion did not adopt an automatic rule for every contract physician. It examined whether the state had the right to direct the work and found a genuine employment relationship for the consultants described.

Did the immunity cover reckless or malicious conduct?

No. The quoted statute excluded wanton, reckless, and malicious damage or injury from its personal-liability protection.

Did these consultants make final rehabilitation-eligibility decisions?

No. The opinion said they reviewed medical information and advised Division staff; they did not determine eligibility or usually see clients for treatment.

Background and statutory framework

Conn. Gen. Stat. § 4-165 protected state officers and employees from personal liability for covered acts within their duties. Conn. Gen. Stat. § 4-141 defined that group broadly, including physicians and psychologists employed by state agencies. The opinion used the employer's right to direct what work was done and how it was done as the principal test for whether the contractual consultants were employees. It also noted defense and indemnification under Conn. Gen. Stat. § 5-141d for qualifying state personnel. The Department's regular, directed file-review arrangement satisfied the employee test in the Attorney General's view.

Citations and references

The opinion discusses Conn. Gen. Stat. § 4-165, § 4-141, and § 5-141d. It cites Kaliszewski v. Weathermaster Alsco Corp., 148 Conn. 624, 629 (1961), for the right-of-control test and notes Becker v. Serafini, Judicial District of Hartford/New Britain at Hartford, Docket No. 246289 (Feb. 27, 1981), on contracted physicians.

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Opinion page: https://portal.ct.gov/ag/opinions/1991-formal-opinions/honorable-gerald-n-tirozzi-department-of-education-1991012-formal-opinion-attorney-general-of-connec

Original opinion text

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.