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Hawksby v. DePietro165 N.J. 58 (2000)
COLEMAN, J., writing for a majority of the Court.
This appeal addresses the question of whether a doctor who was hired
as an employee of a company to treat its workers' compensable injuries pursuant
to the Workers' Compensation Act can be sued in the Superior Court of New
Jersey, Law Division, for malpractice arising from negligent medical
treatment, or whether the immunity afforded co-employees by the Act extends to
the doctor, requiring the injured employee to seek relief through the Division
of Workers' Compensation (“Division”).
Plaintiff was a pressman for the New York Times Company (“Times”). He
incurred injuries to his left elbow, left knee and left leg when he fell from a
ladder while performing his duties. The Times maintained its own medical
facility, and plaintiff was treated for his injuries by defendant Dr. DePietro
in the facility for approximately one year. Because plaintiff experienced
persistent pain in his left thigh, an x-ray and MRI were performed approximately
ten months after the accident. The medical tests revealed a lesion. Plaintiff
was referred to an orthopedic oncologist who performed a biopsy of the mass and
diagnosed cancer.
Plaintiff filed a petition with the Division for the injuries incurred
when he fell from the ladder. That claim was still pending in the Division when
plaintiff filed this malpractice action against Dr. DePietro and other medical
professionals. The trial court granted Dr. DePietro's motion for summary
judgment, holding that the defendant was a fellow employee and therefore immune
from a tort action pursuant to the Workers' Compensation Act. Thereafter,
plaintiff's workers' compensation claim for the injuries resulting from his fall
was resolved by entry of an order approving a settlement in which plaintiff was
awarded 10" of his left leg for residuals of a hamstring pull. The order also
reflected the parties' stipulation that the cancer was not causally related to
plaintiff's employment or his ladder accident.
After entry of the order approving settlement of the ladder-injury claim,
plaintiff filed a motion to vacate the order granting summary judgment to Dr.
DePietro in this malpractice action. The motion was denied by the trial court.
After the claims against all other defendants were resolved and the order
granting summary judgment to Dr. DePietro became final, plaintiff appealed the
order denying the motion to vacate. The Appellate Division affirmed the trial
court's order in a published opinion,
319 N.J. Super. 89 (1999), holding that plaintiff could not maintain a tort
action against Dr. DePietro for failing to diagnose the cancer during his
treatment of plaintiff's compensable injuries. The court adopted the position of
the majority of courts in the United States that an injured employee may not
maintain a malpractice action against a co-employee physician for the negligent
aggravation of his or her existing injury.
Plaintiff filed a Petition for Certification and shortly thereafter an
application in the Division for review or modification of his disability award.
The Court granted the Petition and addressed both the malpractice claim and the
status of plaintiff's settled workers' compensation claim.
HELD: A worker may not maintain a tort action against a
medical practitioner who is also an employee of the injured worker's
employer-owned-and-operated health care facility for harm caused during the
treatment of the employee's work-related injury. The injured worker's exclusive
remedy for the alleged malpractice is to pursue the claim in the Division.
1. Where a worker is claiming that his compensable injury was aggravated
by the professional negligence of a co-employee medical practitioner, the claim
is to be treated as an accident that arose out of and in the course of
employment within the meaning of
N.J.S.A.
34:15-7, which does not require proof of negligence. However, to establish
compensability for plaintiff's claim that the defendant failed to diagnose
cancer in a leg he was treating for muscle strain, plaintiff must prove
negligence before a Judge of Compensation in the Division. (Pp. 6-11)
2. The Court rejects plaintiff's claim that a company doctor in a medical
facility owned by an injured worker's employer acts in the dual capacity of
co-employee and physician and therefore owes the injured worker an independent
duty of care, breach of which would permit a tort action. A contrary holding
would burden the employer indirectly with common-law damages superimposed upon
its workers' compensation liability by reason of either a legal, moral or
practical obligation to indemnify the sued doctor, or with the expense of
carrying insurance to cover the personal liability of the doctor.
N.J.S.A.
34:15-8, which extended immunity under the Act to co employees, was intended
to eliminate such concerns. (Pp. 11-12)
3. Since plaintiff's employer concedes and the Court concludes that the
alleged malpractice constitutes an accident under
N.J.S.A.
34:15-7, that portion of the order approving settlement of plaintiff's
workers' compensation claim that stipulated the cancer was not causally related
to plaintiff's employment or his ladder accident, entered pursuant to
N.J.S.A.
34:15-20, is vacated so that plaintiff can pursue his claim against Dr.
DePietro in the Division. (Pp. 12-14)
The judgment of the Appellate Division dismissing the tort action is
AFFIRMED, and the matter is REMANDED to the Division for further
proceedings in accordance with this opinion.
JUSTICE STEIN, dissenting, contends that the Court should
deny co-employee immunity, pursuant to
N.J.S.A.
34:15-8, to company doctors for their negligent treatment of
employee-patients, and that workers should be permitted to pursue their tort
claims against company doctors in the Law Division.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, GARIBALDI, and VERNIERO join in
JUSTICE COLEMAN'S opinion. JUSTICE STEIN filed a separate dissenting opinion in
which JUSTICE LONG joins.
DONALD HAWKSBY and JOANNA HAWKSBY, his wife,
Plaintiffs-Appellants,
v.
JOSEPH A. DEPIETRO, M.D.,
Defendant-Respondent,
and
WALTER URS, M.D., MATTHEW GARFINKEL, M.D., WILLIAM H. ROSS, D.O., METUCHEN
ORTHOPAEDIC GROUP, JOHN DOE, M.D. 1-50, JANE DOE, M.D. 1-50, JOHN DOE, R.N.
1-50, JANE DOE, R.N. 1-50, JOHN DOE
1-50, JANE DOE 1-50 and JOHN DOE CORP. 1-50, (Fictitious Names),
Defendants.
Argued November 29, 1999-- Decided July 25, 2000
On certification to the Superior Court, Appellate Division, whose opinion is
reported at
319 N.J. Super. 89 (1999).
E. Drew Britcher argued the cause for appellants (Leonard & Butler,
attorneys).
Francis E. Borowsky, Jr., argued the cause for respondent (Monte,
Sachs & Borowsky, attorneys; Mr. Borowsky and Michelle A. Monte,
on the brief).
Christopher B. Leitner submitted a brief on behalf of amicus
curiae Donald Hawksby as Workers' Compensation Petitioner (Shebell &
Shebell, attorneys; Raymond P. Shebell of counsel).
The opinion of the Court was delivered by
COLEMAN, J.
This case revisits the issue of whether there should be tort liability for
co-employee physicians. The question raised is whether a doctor who is also an
employee of an injured worker's employer may be sued in the Law Division for
medical malpractice for allegedly injuring that worker while providing
authorized medical treatment for a compensable accident. The Law Division held
that the action was precluded based upon immunity under the New Jersey Workers'
Compensation Act (Act),
N.J.S.A.
34:15-8, and that the exclusive remedy was to pursue the claim in the
Division of Workers' Compensation (Division). The Appellate Division affirmed in
a published opinion.
319 N.J. Super. 89, 102 (1999).
We hold that whenever a worker is treated for a work connected condition by
an authorized doctor or nurse, who is also an employee of the injured worker's
employer-owned and -operated health care facility, the injured worker's
exclusive remedy for alleged malpractice is to pursue the claim in the Division.
On July 23, 1997, plaintiff moved in the medical malpractice
action, under R. 4:50-1, to set aside the summary judgment. The court
denied this motion on October 24, 1997. That order was also interlocutory
because the medical malpractice case had not been disposed of as to all parties.
However, a stipulation of dismissal with regard to defendant, William H. Ross,
M.D., the last party in the case, was filed on November 6, 1997. Plaintiff filed
his timely notice of appeal on December 3, 1997, appealing from the October 24,
1997 order denying the motion to vacate the summary judgment entered on
September 18, 1996.
With few exceptions, we agree with the Appellate Division's legal
analysis that led it to hold that “Hawksby may not maintain a tort action
against Dr. DePietro based on his failure to diagnose the cancer during his
treatment of Hawksby's compensable injury.” Id. at 102. The Appellate
Division examined cases from around the country and concluded that “[t]he
majority of the courts which have addressed this issue have concluded, as New
Jersey has, that an injured employee may not maintain a malpractice action
against a co-employee physician for the negligent aggravation of his or her
existing injury.” Id. at 93 94.
Hawksby filed his petition for certification on March 26, 1999. While that
petition was pending, on April 4, 1999, he filed an application for review or
modification, pursuant to
N.J.S.A.
34:15-27, of his ten percent disability award for the left leg injury. That
claim is still pending in the Division. We granted certification on May 26,
1999.
160 N.J. 479 (1999).
(keywords, medical malpractice, New Jersey claim, assessment, failure to diagnose cancer, New Jersey medical malpractice law, worker's compensation, cancer, increased risk, delayed diagnosis of cancer, standard of care, cancer, increased risk, medical malpractice laws, liability, lawyer, medical malpractice liability, cancer and medical malpractice claim, medical malpractice facts,)
With Kristiansen fresh in our minds, following oral
argument, we requested each counsel who had handled the case in the Division “to
submit a brief to the Court on the availability of Workers' Compensation on the
ground that [Dr. DePietro's] failure to diagnose was an 'accident' within the
intendment of [N.J.S.A. 34:15-7].” In response to that request, counsel
for The Times conceded that no distinction should be made between a claim that
an authorized treating physician has aggravated a work-related injury and that
an aggravation of a non-work related condition was caused by that physician.
Counsel reasons that in both instances, treatment would be administered by an
authorized treating physician for compensable conditions and but for the injured
employee's employment, the worker would not have been injured on the job and
would not have been treated by the employer's authorized doctor, here Dr.
DePietro. Counsel for the employer further concedes that plaintiff's claim of
aggravation of his cancer, based on alleged professional malpractice under the
workers' compensation no-fault system, is to be treated as an accident that
arose out of and in the course of employment within the meaning of
N.J.S.A.
34:15-7, without the necessity of proving negligence.
Those concessions would be controlling in a case in which the worker was
claiming that professional negligence aggravated the compensable injury being
treated. Here, however, the worker is claiming that Dr. DePietro failed to
diagnose cancer in the leg he was treating for a probable hamstring muscle
strain. Under these circumstances, to establish compensability based on Dr.
DePietro's alleged failure to diagnose the non-compensable cancer, the worker
must prove professional negligence. Walck v. Johns-Manville Products Corp.,
56 N.J. 533, 560-62 (1970). “[T]he doctor's malpractice would be an incident
of the employment.” Id. at 562. We recognize that “our analysis makes
compensation depend on proof of fault, in the face of the statute's direction
that compensation be awarded or withheld 'without regard to the negligence of
the employer.' R.S. 34:15 7. . . . But the fact is that in the circumstances of
this case it is only the alleged negligence that makes the” aggravation
compensable. Dudley v. Victor Lynn Lines, Inc.,
32 N.J. 479, 495 (1960).
Both Walck, supra, and Dudley, supra, involved
claims of professional negligence that had to be prosecuted in the Division. The
Judges of Compensation are at least as capable, if not more capable, of handling
such claims as juries. Indeed, Florida and Virginia have adopted a workers'
compensation approach for handling some of the more serious and complicated
common-law medical malpractice claims. Fla. Stat. Ann. §
766.303 (West 1999) (dealing with birth-related neurological injury claims);
Va. Code Ann. § 38.2-5002 (Michie 1999) (same); see also
Randall R. Bovbjerg & Frank A. Sloan, No-Fault for Medical Injury: Theory and
Evidence, 67 U. Cin. L. Rev. 53, 83 (1998) (discussing Florida and
Virginia statutes); Practicing Law Institute, Medical Malpractice
Developments 576 (1994) (same). See generally Randall R.
Bovbjerg, et al., Administrative Performance of “No-Fault” Compensation for
Medical Injury, 60 Law & Contemp. Probs. 71, 72 (1997) (“The first
actual implementation of no-fault for medical liability occurred . . . in
Virginia and Florida, largely under the workers' compensation model.”).
We agree with the Appellate Division that the majority of jurisdictions that have addressed the issue align with the New Jersey rule that an injured worker may not maintain a malpractice action against a co-employee physician. Hawksby, supra, 319 N.J. Super. at 93-101. A contrary holding would result “in burdening the employer indirectly with common-law damages superimposed upon [its] workmen's compensation liability by reason of either a legal, moral or practical obligation to indemnify the sued [doctor], director, officer or supervisory employee, or with the expense of carrying insurance to cover the personal liability of such . . . personnel.” Miller v. Muscarelle, 67 N.J. Super. 305, 321 (App. Div.), certif. denied, 36 N.J. 140 (1961). These are some of the specific concerns N.J.S.A. 34:15-8 was intended to eliminate.
DONALD HAWKSBY and JOANNA HAWKSBY, his wife,
Plaintiffs-Appellants,
v.
JOSEPH A. DEPIETRO, M.D.,
Defendant-Respondent,
and
WALTER URS, M.D., MATTHEW GARFINKEL, M.D., WILLIAM H. ROSS, D.O., METUCHEN
ORTHOPAEDIC GROUP, JOHN DOE, M.D. 1-50, JANE DOE, M.D. 1-50, JOHN DOE, R.N.
1-50, JANE DOE, R.N. 1-50, JOHN DOE
1-50, JANE DOE 1-50 and JOHN DOE CORP. 1-50, (Fictitious Names),
Defendants.
STEIN, J., dissenting.
The Court holds that plaintiff must pursue a medical malpractice claim in
the Division of Workers' Compensation (Division) because the doctor who
committed the alleged malpractice was provided by the employer. The Court
affirms the lower courts' holding immunizing plaintiff's doctor from tort
liability pursuant to
N.J.S.A.
34:15-8 on the basis that the doctor was a fellow employee. That holding
insulates company doctors from tort liability for negligent conduct, thereby
depriving employees harmed by their negligence of an adequate forum to redress
their injuries. I disagree and would adopt the dual capacity doctrine relied on
by Justice Handler in Boyle v. Bireme,
93 N.J. 569, 570-77 (1983) (Handler, J., dissenting), and permit injured
plaintiffs to assert medical malpractice claims against a co-employee company
doctor.
Moreover, in my view the Division is not the appropriate forum to litigate
complex issues of medical causation. Plaintiff's claim should be litigated in
the Law Division, the customary forum for the trial of medical malpractice
claims.
I
A
The Workers' Compensation Act (the Act) was enacted to insure that employees
who are injured during the course of employment are compensated for their losses
without having to prove the fault of the employer. Harris v. Branin Transp.,
Inc.,
312 N.J. Super. 38, 46 (App. Div.), certif. denied,
156 N.J. 408 (1998). We have discussed previously the development of the Act
and the purpose of workers' compensation legislation. Millison v. E.I. du
Pont de Nemours & Co.,
101 N.J. 161, 173-76 (1985). The Act “involve[s] a historic trade-off
whereby employees relinquished their right to pursue common-law remedies in
exchange for automatic entitlement to certain, but reduced, benefits whenever
they suffered injuries by accident arising out of and in the course of
employment.” Id. at 174. Thus, a balanced no-fault system was enacted
where “employees would receive assurance of relatively swift and certain
compensation payments, but would relinquish their rights to pursue a potentially
larger recovery in a common-law action.” Ibid.
In 1961, the Legislature amended the Act to provide for co employee
immunity. L. 1961, c. 2.
N.J.S.A.
34:15-8, as amended, provides fellow employees with immunity from tort
liability for their own negligent acts in the workplace. Volb v. G.E. Capital
Corp.,
139 N.J. 110, 117 (1995); Wellenheider v. Rader,
49 N.J. 1, 9 (1967). The purpose of that amendment was to relieve employers
from the burden of paying
common-law damages superimposed upon [their]
workmen's compensation liability by reason of
either a legal, moral or practical obligation
to indemnify [a] sued director, officer or
supervisory employee, [and] the expense
of carrying insurance to cover the personal
liability of such supervisory personnel.
[Miller v. Muscarelle, 67 N.J. Super.
305, 321 (App. Div.), certif. denied,
36 N.J. 140 (1961).]
See also Maggio v. Migliaccio,
266 N.J. Super 111, 116 (App. Div. 1993) (noting that
N.J.S.A.
34:15-8 defense applies where plaintiff's employer provides workers'
compensation benefits and would be responsible for plaintiff's injuries).
Professor Larson notes that pursuant to workers' compensation laws an employer
“gives up its normal defenses and assumes automatic liability” in exchange for
immunity from employee common-law suits, and that that reasoning can be extended
to a co-employee who is “entitled to expect in return for what he or she has
given up . . . freedom from common-law suits based on industrial accidents in
which that coemployee is at fault.” 6 Arthur Larson & Lex K. Larson, Larson's
Workers' Compensation Law § 111.03[2] (2000).
N.J.S.A.
34:15-8 thus protects fellow employees from common-law tort actions filed by
workers who are injured or killed in the workplace. Volb, supra,
139 N.J. at 117; Wellenheider, supra, 49 N.J. at 9;
Estrada v. Hendricksaw Corp.,
302 N.J. Super. 262, 266 (App. Div. 1997); Bustamante v. Tuliano,
248 N.J. Super 492, 494 (App. Div.), certif. denied,
126 N.J. 385 (1991).
B
Because of the unique service provided by company doctors, some courts,
although a distinct minority, wisely have declined to extend co-employee
immunity to them and have adopted the dual capacity doctrine. Declaring that
“[m]edical malpractice is not an inherent risk of the brewing business,” in
Wright v. District Court,
661 P.2d 1167, 1171 (1983), the Supreme Court of Colorado held that a
brewery employee whose back injury was aggravated by the malpractice of a
company doctor could maintain a malpractice claim against the company doctor
because the doctor's relationship with the employee
was identical to that of a doctor in private practice with a patient.
This relationship is distinct from the employment relationship; it entails
different rights and duties. Clearly, a private doctor would be liable to [the
employee] for malpractice. There is no logical reason to treat company
physicians differently. Thus, the rule which immunizes employees from suits by
their co-employees for negligence within the course of employment is
inapplicable here.
[Id. at 417.]
In Evers, the Court noted “that the difficulties of identifying,
defining, and proving injury in certain types of medical malpractice cases
justif[y] the application of a standard of causation that is more flexible than
that used in conventional tort claims.” Id. at 413. Because of the
inherent difficulty of proving negligence when the plaintiff is afflicted with a
preexisting condition, the Court has continued to apply a lower burden-of-proof
standard for plaintiffs to establish a prima facie case of negligence in this
increasingly complex area of law. Gardner v. Pawliw,
150 N.J. 359, 377 (1997) (involving prenatal medical malpractice);
Fischer v. Canario,
143 N.J. 235, 241 (1996) (concerning tumor misdiagnosis); Scafidi v.
Seiler,
119 N.J. 93, 108-09 (1990) (involving prenatal medical malpractice);
Dubak v. Burdette Tomlin Memorial Hosp.,
233 N.J. Super. 441, 449 (App. Div. 1989) (concerning fatal internal
bleeding).
B
The majority has determined that the Division is the exclusive forum in
which plaintiff's claim should be tried. The Division, however, is a forum not
well suited to the trial of a medical malpractice claim where an injured
plaintiff must prove negligence in order to receive compensatory damages. The
Division's customary function is to adjudicate causation in the context of
no-fault claims. See Brock v. Public Serv. Elec. & Gas Co.,
325 N.J. Super. 582, 588 (App. Div. 1999) (noting that workers' compensation
court “was designed to establish a no fault system of compensation for workers
who are injured or contract disease in the course of employment”). The
Division's judges are unfamiliar with medical malpractice litigation and with
the determination of whether a physician deviated from generally accepted
standards of medical practice, an issue customarily submitted for resolution to
a jury. In my view, the trial of plaintiff's malpractice claim belongs in the
Law Division.
III
For the reasons stated, I would reverse the judgment of the Appellate Division and remand the matter for trial in the Law Division. Justice Long joins in the dissent.
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Howard Gutman is a New Jersey attorney based in Parsippany, New Jersey who has handled numerous legal claims involving pulmonary tumors. A member of the board of directors of a leading cancer support group and a caregiver, he is the author of the new book Lung Cancer and Mesothelioma. In his legal capacity, he has appeared on Good Day New York, spoken at the National Press Club and been interviewed by NBC Nightly News.