Fauver v. Bell

• Decision Date: 18 June 1951
• Docket Number: No. 3785,3785
• Citation: 65 S.E.2d 575,192 Va. 518
• Parties: THEODORE W. FAUVER v. RICHARD P. BELL, JR. Record
• Court: Virginia Supreme Court

Page 575

65 S.E.2d 575

192 Va. 518

THEODORE W. FAUVER v. RICHARD P. BELL, JR.

Record No. 3785.

Supreme Court of Appeals of Virginia

June 18, 1951.

Humes J. Franklin and G. H. Branaman, for the plaintiff in error.

Parrish, Butcher & Parrish, for the defendant in error.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

This action was instituted by Theodore W. Fauver by notice of motion against Richard P. Bell, Jr., a physician and surgeon, seeking to recover damages for the alleged negligence of the defendant while treating the plaintiff for accidental injuries received by him, while in the employment of the Virginia Electric & Power Company. The motion recited that the action was instituted for the benefit of the plaintiff and his employer, as their interests might appear.

Dr. Bell filed a special plea setting out that Fauver was barred from maintaining his action because he was, at the time of his accident, an employee of the Virginia Electric & Power Company, within the provisions of the Virginia Workmen's Compensation Act, Code of Virginia, 1950, section 65-1, et seq., (Michie's Code of 1942 section 1887-1, et seq., Acts 1918, chapter 400, page 637, as amended), and had been awarded and had accepted payment of compensation from his employer, a self-insurer. Certified copies of the memorandum of agreement as to the payment of compensation and final settlement receipt were attached to and made a part of the plea. The plaintiff moved to strike the plea on the ground that the employer-employee settlement did not include all of the elements of damage for which the defendant, as a third party tort-feasor, was liable, including pain, anguish, bodily disfigurement, loss of full wages, and other benefits.

The court overruled the motion, sustained the special plea, and dismissed plaintiff's action. The plaintiff excepted, gave due notice of appeal, assigned grounds of error, and obtained this writ.

The sole question for our decision is whether an employee who has been injured in an accident arising out of and in the course of his employment and has been awarded and has accepted the benefits provided under The Workmen's Compensation Act of this State is thereby barred from maintaining an action against a physician or surgeon for malpractice in treating the injuries resulting from the accident. The precise question has not previously been presented to this court. Our decision turns upon a proper interpretation of Code, section 65-86, considered in view of the provisions of the entire Act. That section reads as follows:

'The pecuniary liability of the employer for medical, surgical and hospital service herein required when ordered by the Commission shall be limited to such charges as prevail in the same community for similar treatment of injured persons of a like standard of living when such treatment is paid for by the injured person and the employer shall not be liable in damages for malpractice by a physician or surgeon furnished by him pursuant to the provisions of the preceding section, but the consequences of any such malpractice shall be deemed part of the injury resulting from the accident and shall be compensated for as such.' (1918, p. 643; Michie Code 1942, section 1887 (27)).

A consideration of the objects and purposes of workmen's compensatory legislation and the changes which it has wrought in the rules of the common law have been clearly and fully stated in many cases coming before this court. The legislation was for the beneficent purpose of providing compensation, in the nature of insurance, to a workman or his dependents, in the event of his injury or death, for the loss of his opportunity to engage in gainful employment when disability or death was occasioned by an accidental injury or occupational disease, to the hazard or risk of which he was exposed as an employee in the particular business, without regard to fault as to the cause of such injury or death. The pecuniary loss incident to the payment of the compensation is cast upon the employer as a part of the expenses of his business.

Under the Act both employer and employee surrender former rights and gain certain advantages. The employee surrenders his right to bring an action at law against his employer for full damages and agrees to accept a sum fixed by statute, based on the extent of his injuries and the amount of his wages. He gains a wider security in line with the more inclusive recovery afforded. The employer surrenders his right of defense on the grounds of contributory negligence, assumption of risk and the fellow servant rule. He is relieved from liability for damages to the employee for which in an ordinary negligence case he might otherwise be liable to a much greater extent. Negligence is of no concern in a compensation case unless the injury is caused by the employee's wilful negligence or misconduct. Rules of evidence are relaxed and procedures simplified. Rights granted and obligations imposed are limited as granted or imposed by the Act and are in their nature contractual. Enacted for the purpose of attaining a humanitarian end, the legislation, although in derogation of the common law, is highly remedial and is to be liberally construed.

Under the common law a physician or surgeon is liable for injury to his patient resulting from malpractice. 21 R.C.L., page 379, paragraph 26; 41 Am. Jur., Physicians and Surgeons, sec. 78, et seq. The purpose and effect of the compensation act are to control and regulate the relations between employer and employee. As between them the remedies therein provided are exclusive. It does not extinguish rights outside of and beyond the employment. Consequently, as to these, the employee's commonlaw remedies remain unimpaired, and they are not to be considered as altered or changed except where the legislative intent has been plainly manifested by statute. Virginia Code, 1950, section 1-2; Griffith v. Raven Red Ash Coal Co., 179 Va. 790, 20 S.E. (2d) 530.

The rule is well settled that where one has received a personal injury as a result of the negligence of another and pursues due care in the selection of a physician or surgeon to treat the injuries and they are aggravated by the negligent treatment of such physician or surgeon, the person causing the original injury is liable for the resulting damage to the full extent. 15 Am. Jur., Damages, section 85, et seq., page 495; 25 C.J.S. Damages, section 20, page 477; Anno. II, 8 A.L.R. 507; Corbett v. Clarke, 187 Va. 222, 224, 46 S.E. (2d) 327.

It is also generally recognized at common law that two separate causes of action accrue to the employee in the situation in question. One lies against the employer and includes compensation for both the original injury and the aggravation. The other lies against the physician and includes only damages arising from the aggravation. White v. Matthews, 221 App.Div. 551, 224 N.Y.S. 559; Noll v. Nugent, 214 Wis. 204, 252 N.W. 574. However, a few of the courts consider the employer and the physician as joint tort-feasors, and affected by the rule that the release of one tort-feasor releases all the others.

The reason for several liability of the employer and physician is well stated in Viou v. Brooks-Scanlon Lbr. Co., 99 Minn. 97, 103, 108 N.W. 891, where this is said:

'The defendant and the physician in such a case are not joint tort-feasors; there is concert neither in project nor in action between them. Each is individually liable. Their several liabilities do not prevent recovery from either or both although they may necessitate separate proceedings to enforce the injured person's right to sue.'

Workmen's compensation acts bring the employee's recovery against the employer to a lower level of compensation than that of damages recoverable at common law. The divergence arises from the different purposes of the two recoveries. Compensation recovery is fixed at a statutory rate on a purely loss-of-wage basis. Employer's liability is not based upon tort or other wrongful conduct on the employer's part, but because it is incident to the relationship of employer-employee and a part of employer's contractual liability under the Act. On the other hand, the liability of the malpracticing physician is based upon negligence, a tort, and a tort recovery is for damages for the full wrong.

There is a hopeless conflict of authority throughout the jurisdictions as to the question in issue before us, the decisions being controlled to a great extent by the terms and provisions of the particular compensations act under review, was especially as to whether there is a provision allowing an action against third parties. 41 Am. Jur., Physicians and Surgeons, section 136, page 251; 82 A.L.R. 932; 139 A.L.R. 1010.

In some jurisdictions it is held that since the consequence of malpractice is compensable on the theory that it is merely a part of the original injury the remedy, under the Act, is exclusive, and acceptance of the compensation award by the employee bars any action against the practitioner. Ross v. Erickson Const. Co., 89 Wash. 634, 155 P. 153, L.R.A. 1916F, 319; Alexander v. Von Wedel, 169 Okla. 341, 37 P. (2d) 252; Williams v. Dale, 139 Or. 105, 8 P. (2d) 578, 82 A.L.R. 922.

Other states allow the action on the theory that the suit for malpractice has no connection with the original injury for which compensation may be had under the compensation act. Froid v. Knowles, 95 Colo. 223, 36 P. (2d) 156; McGough v. McCarthy Improve. Co., 206 Minn. 1, 287 N.W. 587; Ruth v. Witherspoon-Englar Co., 98 Kan. 179, 157 P. 403, L.R.A. 1916E, 1201.

In other jurisdictions action is permitted on the theory that the physician, whether hired by the employer or not, is a third party within the contemplation of their workmen's compensation act. Seaton v. United States Rubber Co. (1945), 223 Ind. 404, 61 N.E. (2d) 177; Pawlak v. Hayes, 162 Wis. 503, 156 N.W. 464, L.R.A. 1917A, 392; Huntoon v....