D'Angona v. County of Los Angeles

• Citation: 27 Cal.3d 661,166 Cal.Rptr. 177,613 P.2d 238
• Court: United States State Supreme Court (California)
• Decision Date: 10 July 1980
• Parties: , 613 P.2d 238 Linda D'ANGONA, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent. L.A. 31226.

Page 177

166 Cal.Rptr. 177

27 Cal.3d 661, 613 P.2d 238

Linda D'ANGONA, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent.

L.A. 31226.

Supreme Court of California, In Bank.

July 10, 1980.

Samuel Shore, William B. Anderson and Joanne P. Leggio, Los Angeles, for plaintiff and appellant.

Home & Clifford, Randall L. Shelley, North Hollywood, and Arthur E. Schwimmer, Los Angeles, for defendant and respondent.

MOSK, Justice.

Plaintiff Linda D'Angona contracted a disease in the course of her employment with Los Angeles County-University of Southern California Medical Center, a county hospital, and was treated at the hospital by doctors in the hospital's employ. She asserts that the doctors who treated her were negligent, and that she suffered additional injuries as a result of their negligence. Ultimately, she received a workers' compensation award which included compensation for the disability resulting from the aggravation of the disease by the assertedly negligent treatment. Thereafter, plaintiff filed the present action against Los Angeles County, seeking damages for the aggravation of her disease.

The sole issue on this appeal from the dismissal of her action is whether it is barred by statutes which provide that workers' compensation is the exclusive remedy against an employer where the conditions of compensation exist (Lab.Code, §§ 3600, 3601, 3603), ¹ or whether the hospital may be held liable in an action at law under the dual capacity doctrine enunciated in Duprey v. Shane (1952) 39 Cal.2d 781, 249 P.2d 8.

Plaintiff was a physical therapist employed by the hospital at the time she became ill in February 1971. She was admitted to the hospital on February 19, and while a patient there developed a high fever and other symptoms. It was discovered that she had contracted an infection called meningococcemia. She developed gangrene in the extremities, resulting in the amputation of all her toes and all fingers except one. In 1974, she filed two applications for workers' compensation benefits, alleging that she had suffered internal injuries by virtue of "exposure" in her work, resulting in amputation of her fingers and toes. After an award of benefits was made in her favor for disability arising from these injuries, she filed the present action in the superior court for damages against the county, ² alleging that the doctors employed by the hospital had negligently diagnosed and treated her, that she did not make an informed consent to the treatment administered by them, and that as a result of their conduct she suffered not only the amputations described above, but severe central nervous system damage as well. ³

The trial court dismissed the action on the ground that the court lacked jurisdiction of the action because of the provisions of sections 3601 and 3603.

The general principles governing the scope of liability of an employer to an employee who suffers an industrial injury are so well settled that they do not require extensive discussion. An employee whose disability arises from injury or disease incurred in the employment is confined to workers' compensation benefits against the employer or its insurance carrier not only for the original injury, but also for aggravation by negligent medical treatment. But section 3852 provides that the employee is not precluded from seeking damages against a "person other than the employer," and under this provision he may sue a doctor or hospital at law for damages which arise from aggravation of an industrial injury by negligent medical treatment. (Duprey at pp. 790-791, 249 P.2d 8; Heaton v. Kerlan (1946) 27 Cal.2d 716, 721, 166 P.2d 857; Fitzpatrick v. Fidelity & Casualty Co. (1936) 7 Cal.2d 230, 233-234, 60 P.2d 276.)

In some cases, the employer has been held to occupy a dual capacity, subjecting him to liability for workers' compensation benefits for the initial industrial injury (in his role as employer) as well as for damages in an action at law for aggravation of that injury by negligent medical treatment (in his capacity as a "person other than the employer").

Foremost among these cases is Duprey. There, a nurse employed by a medical partnership which practiced chiropractic medicine was injured in the course of her employment. She was treated by two doctors; one a partner (Dr. Shane), and the other an employee of the partnership (Dr. Harrison). It was held that, although she had recovered workers' compensation benefits, she could nevertheless maintain an action at law for damages against the partnership, the partners, and both doctors who had treated her, for aggravation of her injuries by negligent medical treatment.

This court reasoned that Dr. Shane bore two relationships toward the plaintiff one as employer and the other as her doctor that as an employer he was under a duty to provide compensation for her injuries but was not under an obligation to treat her personally, and that if he had sent the plaintiff to a doctor retained by the workers' compensation insurer, that doctor would have been liable for malpractice. We stated, "There seems to be no logical reason why the employer-doctor, when he undertakes to treat the industrial injury, should not be responsible in a civil action for his negligent acts in treating that injury. Once it is established that an action before the commission for the industrial injury is no bar to an action against the insurance doctor for malpractice, it would seem to follow that the employee does not lose his right to such an action simply because the employer who happens to be a doctor treats the injury. In such event, the employer-doctor is a 'person other than the employer, within the meaning of section 3852 of the Labor Code . . . . In treating the injury Dr. Shane did not do so because of the employer-employee relationship, but . . . as an attending doctor, and his relationship to . . . plaintiff . . . was that of doctor and patient.' " (39 Cal.2d at p. 793, 249 P.2d at p. 15.) Dr. Harrison was held to be liable because he occupied the same position as a physician retained by the insurer to treat the injury.

The dual capacity doctrine has been applied in a number of different contexts. A defendant was held to occupy the positions of both an employer and a manufacturer of scaffolds sold to the general public and to be liable at law for damages in the latter role to an employee injured while using one of the scaffolds. (Douglas v. E. & J. Gallo Winery (1977) 69 Cal.App.3d 103, 107, 137 Cal.Rptr. 797; cf. Shook v. Jacuzzi (1970) 59 Cal.App.3d 978, 981, 129 Cal.Rptr. 496; Williams v. State Compensation Ins. Fund (1975) 50 Cal.App.3d 116, 120, 123 Cal.Rptr. 812.) And in another case a defendant who was both a bareboat charterer and the employer of a longshoreman was held to be liable for damages at law for injuries suffered by the longshoreman while loading the vessel not as an employer but as the charterer who had a duty to assure that the vessel was seaworthy. (Reed v. The Yaka (1963) 373 U.S. 410, 415, 83 S.Ct. 1349, 1353, 10 L.Ed.2d 448; and see cases collected in 2A Larson, Workmen's Compensation Law (1976) § 72.80.) ⁴

The county asserts, however, that the doctrine enunciated in Duprey is not applicable in the present case because here, unlike the situation in Duprey, the county-employer did not personally treat plaintiff; rather, she is attempting to hold the county liable under the principles of respondeat superior for negligence of the doctors employed by the hospital. In this connection, the county relies upon a statement in Duprey that respondeat superior was not there involved because both doctors held subject to civil liability had personally treated the plaintiff. (39 Cal.2d at p. 795, 249 P.2d 8.)

The issue, then, is whether the fact that plaintiff is seeking to hold liable the county which employed the allegedly negligent doctors rather than the negligent physician-employer himself is determinative. We think not. ⁵ Underlying Duprey is the rationale that if any injury arises from a relationship which is distinct from that of employer and employee and invokes a different set of obligations than the employer's duties to its employee, there is no justification for shielding the employer from liability at common law.

Larson declares that the decisive test of dual capacity is whether the nonemployer aspect of the employer's activity generates a different set of obligations by the employer toward the employee. Thus, since a doctor's obligation toward his patient arises because he undertakes to render medical treatment, if he treats an employee rather than paying another for treatment he should be liable as a doctor rather than as an employer. (2A Larson, Workmen's Compensation Law (1976) supra, § 72.80, pp. 14-117, 14-118.) The same rule should apply, according to Larson, to a carrier which, instead of paying for medical treatment, directly performs such services. (Larson, Workmen's Compensation Insurer as Suable Third Party (1969) Duke L.J. 1117, 1136.)

The relationship between a county which operates a public hospital and its patients clearly involves a different set of obligations from the hospital's obligations toward its employees. Paraphrasing Duprey, it may be said that in treating plaintiff's injuries the hospital did not act in its capacity as employer but as a hospital, and since it assumed the obligations of a hospital to a patient it should be liable in that capacity rather than as an employer for the aggravation of plaintiff's injury.

This rationale has been followed in a number of cases involving hospital employees. In Guy v. Arther H. Thomas Co. (1978) 55 Ohio St.2d 183, 378 N.E.2d 488, 492, the plaintiff, an employee of a hospital, contracted mercury poisoning in the course of her employment. She alleged that the hospital negligently failed to diagnose her condition correctly, resulting in aggravation of the disease. The Ohio Supreme Court,...