Boyle v. Breme

• Decision Date: 14 July 1983
• Citation: 93 N.J. 569,461 A.2d 1164
• Parties: Alberta BOYLE, Plaintiff-Appellant, v. Charles J. BREME, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 569

93 N.J. 569

461 A.2d 1164

Alberta BOYLE, Plaintiff-Appellant, v. Charles J. BREME, Defendant-Respondent.

Supreme Court of New Jersey.

Argued March 21, 1983.

Decided July 14, 1983.

Joseph Asbell, Camden, for plaintiff-appellant (Joseph Asbell, attorney; Yale I. Asbell, Haddanfield, on the briefs).

John R. Gercke, Asst. County Counsel, Moorestown, for defendant-respondent (Steven D. Weinstein, Camden County Counsel, Collingswood, attorney).

PER CURIAM.

We affirm for the reasons stated by Judge Fritz in his opinion below. 187 N.J.Super. 129, 453 A.2d 1335 (App.Div.1982). We note that when the Legislature added a provision for co-employee immunity to the Workers' Compensation Act in 1961, L.1961, c. 2 (codified at N.J.S.A. 34:15-8), some employers had medical clinics staffed by employee doctors and nurses. If the Legislature had intended to exclude this class of co-employees, it could have expressed that intent. Indeed the Legislature made a comprehensive review of the Act in 1979, L.1979, c. 283, without modifying the co-employee immunity provision despite the pronouncement in Bergen v. Miller, 104 N.J.Super. 350, 250 A.2d 49 (App.Div.), certif. denied, 53 N.J. 582, 252 A.2d 158 (1969), of the principle enunciated in this case. The employee's recovery under the Act includes, of course, the consequences of malpractice, the injuries being deemed to arise out of and in the course of employment. Flanagan v. Charles E. Green & Son, 122 N.J.L. 424, 5 A.2d 742 (E. & A. 1939).

For affirmance --Chief Justice WILENTZ, and Justices CLIFFORD, SCHREIBER, POLLOCK, O'HERN and GARIBALDI--6.

For reversal --Judge HANDLER--1.

HANDLER, J., dissenting.

By affirming the judgment in this case on the reasoning of the opinion below, this Court endorses a very literal and strict interpretation of the coemployee immunity provision of the workers' compensation statute, N.J.S.A. 34:15-8, ¹ and thereby denies an employee the right to maintain a cause of action for medical malpractice against a physician who happens to be employed by the same employer and whose professional activities and responsibilities are wholly unrelated to those of the injured employee. Because I do not believe that the coemployee immunity statute should be understood to bar appellant from maintaining a cause of action for medical malpractice against such a physician, I dissent.

Appellant Alberta Boyle was employed as a Food Service Worker at Camden County's Psychiatric Hospital in Lakeland. On May 12, 1980 she slipped and fell in the dining room of the facility and sustained injuries to her left side. Immediately after her fall, appellant was taken to the Camden County Health Services Center and treated in the medical clinic ("the dispensary") by respondent Charles Breme. Breme, a physician licensed to practice medicine in New Jersey, was employed by Camden County as the Director of Emergency Medical Services of the Camden County Health Services Center and was charged with running the dispensary at the Lakeland Complex. ²

After the accident appellant filed a claim for workers' compensation benefits against Camden County. She also commenced an action against defendant for injuries caused by respondent's medical malpractice. The trial court granted respondent's motion for summary judgment, ruling that the coemployee immunity provision of N.J.S.A. 34:15-8 barred the claim because both parties worked for the same employer. Relying on Bergen v. Miller, 104 N.J.Super. 350, 250 A.2d 49 (App.Div.), certif. den., 53 N.J. 582, 252 A.2d 158 (1969), the Appellate Division affirmed. Boyle v. Breme, 187 N.J.Super. 129, 453 A.2d 1335 (App.Div.1982). Although acknowledging sound policy arguments for finding an exception to N.J.S.A. 34:15-8 where a claim of medical malpractice is made the Appellate Division refused to "threaten the integrity of [the workers' compensation] scheme by presuming an exception in the case of a coemployee who happens to be a doctor." Id. at 132, 453 A.2d 1335. It was "convinced that any adjustment ... should be left to the Legislature." Id. at 133, 453 A.2d 1335.

The critical question in this case is whether the coemployee immunity provision of N.J.S.A. 34:15-8 of the Workers Compensation Act is to be understood as immunizing a company doctor from liability for negligent acts performed in the course of his professional, medical treatment of a coemployee.

In 1961 the Legislature added a provision for coemployee immunity to the Workers' Compensation Act, L.1961, c. 2, which "expressly ... preclude[d] a right of recovery on account of a compensable injury or death at common law or otherwise against a fellow employee except in cases of intentional wrong." Miller v. Muscarelle, 67 N.J.Super. 305, 321, 170 A.2d 437 (App.Div.1961). It thus abolished "cause[s] of action in tort against a fellow employee ... [that] ha[d] frequently resulted in burdening the employer indirectly with common law damages superimposed upon his workmen's compensation liability by reason of either a legal, moral or practical obligation to indemnify the sued ... employee." Ibid. This amendment brought coemployee relationships into concert with a general purpose underlying workers compensation, that is, to afford expeditious and certain redress to injured employees in return for the imposition of an absolute, but limited, liability upon their employers. Boyle v. G. & K. Trucking Co., 37 N.J. 104, 112, 179 A.2d 514 (1962); see also Seltzer v. Isaacson, 147 N.J.Super. 308, 313, 371 A.2d 304 (App.Div.1977).

By shifting liability for employee negligence from the employee to his employer, the statute implicitly acknowledges the application of the common law doctrine of "respondent superior," namely, that the employer or master is liable for the actions of its employees or servants undertaken in the course of their employment. Di Cosala v. Kay, 91 N.J. 159, 450 A.2d 508 (1982); Klitch v. Betts, 89 N.J.L. 348, 98 A. 427 (E. & A. 1916); Snell v. Murray, 117 N.J.Super. 268, 284 A.2d 381 (Law Div.1971), aff'd, 121 N.J.Super. 215, 296 A.2d 538 (App.Div.1972). That doctrine imposes ultimate liability on the master who directs, controls and supervises its servants. Starego v. Soboliski, 11 N.J. 29, 34, 93 A.2d 169 (1952), cert. den., 345 U.S. 925, 73 S.Ct. 784, 97 L.Ed. 1356 (1953); see Vreeland v. Wilkinson Gaddis & Co., 129 N.J.L. 283, 284, 29 A.2d 387 (Sup.Ct.1942); W. Prosser, Law of Torts, 460-61 (4th ed. 1971).

The relationship between an employer and a company physician differs substantially from other employer-employee relationships to which the doctrine of master/servant would apply. Rather than directing and supervising the doctor's work, the employer lacks control over the medical, patient-treating aspects of its house physician's work. In fact the treating physician is an independent, skilled professional. As Justice Francis observed in Newmark v. Gimbel's, Inc., 54 N.J. 585, 258 A.2d 697 (1969):

The doctor ... exercises his best judgment in diagnosing the patient's ailment or disability, prescribing and sometimes furnishing medicines or other methods of treatment which he believes, and in some measure hopes, will relieve or cure the condition. His performance is not mechanical or routine because each patient requires individual study and formulation of an informed judgment as to the physical or mental disability or condition presented, and the course of treatment needed.... In a primary sense [doctors] furnish services in the form of an opinion of the patient's condition based upon their experienced analysis of the objective and subjective complaints, and in the form of recommended and, at times, personally administered medicines and treatment. Compare, Gagne v. Bertran, 43 Cal.2d 481, 275 P.2d 15 (1954). Practitioners of such callings, licensed by the State to practice after years of study and preparation, must be deemed to have a special and essential role in our society, that of studying our physical and mental ills and ways to alleviate or cure them, and that of applying their knowledge, empirical judgment and skill in an effort to diagnose and then to relieve or to cure the ailment of a particular patient. [Id. at 596-97, 258 A.2d 697]

Recently, Justice Pollock, writing for a majority of this Court in Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980), discussed the independence ascribed to professionals.

Employees who are professionals owe a special duty to abide not only by federal and state law, but also by the recognized codes of ethics of their professions. That duty may oblige them to decline to perform acts required by their employers. [Id. at 71, 417 A.2d 505]

Justice Pollock's opinion clearly indicated that the independence of the medical profession and the duties that its members owe the public could not be overriden by an employer directive that contravened public policy and conflicted with established medical practice. Id. at 72, 417 A.2d 505. ³

Because of the lack of control exerted by the employer over the medical and patient-treating aspects of a house physician's work, the independence ascribed to the medical profession, and the degree of skill, care and judgment associated with the practice of medicine, the house physician, when treating other employees, cannot be viewed simply as a servant in a master-servant relationship. Dr. Breme treated Boyle in the capacity of physician and consequently, should be liable, as any other private doctor would be, for his malpractice because the doctor-patient relationship entails obligations, rights and duties entirely distinct from those associated with his status as a coemployee. ⁴

I would ascribe to a company physician a dual capacity and therefore determine that he can be held independently liable for medical malpractice in a third party action by an injured employee. Cf. Lyon v. Barrett, 89 N.J. 294, 298, 445 A.2d 1153 (1982) (discussing dual capacity doctrine as it...