Flood v. Merchants Mut. Ins. Co.

• Decision Date: 16 January 1963
• Docket Number: No. 129,129
• Citation: 187 A.2d 320,230 Md. 373
• Parties: George Lee FLOOD, Jr. v. MERCHANTS MUTUAL INSURANCE CO.
• Court: Maryland Court of Appeals

Page 373

230 Md. 373

187 A.2d 320

George Lee FLOOD, Jr. v. MERCHANTS MUTUAL INSURANCE CO.

No. 129.

Court of Appeals of Maryland.

Jan. 16, 1963.

Calvin E. Cohen, Annapolis (Wright & Cohen and John B. Wright, Annapolis, on the brief), for appellant.

Max Sokol and Melvin J. Sykes, Baltimore (Dickerson, Nice & Sokol, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HAMMOND, PRESCOTT, MARBURY and SYBERT, JJ.

MARBURY, Judge.

This is an appeal from the judgment of the Superior Court of Baltimore City sustaining appellee's demurrer to the third count of appellant's declaration, without leave to amend. The third count sought to recover in tort from an employer's workmen's compensation insurer for alleged negligence, consisting of claimed malpractice of physicians selected by the insurer for treatment of an employee's injuries.

On February 4, 1958, appellant, employed by Yeaton and Company, as a laborer in a coal yard, was injured when a large lump of coal fell from a coal elevator, striking him in the back while he was in a stooped position in the act of shoveling coal. Upon instructions of the appellee, the employer sent appellant first to a Dr. Wilkerson, and later, to the Drs. Reifschneider (there being two of them in practice together) for examination and treatment. Dr. Wilkerson's nurse treated him on February 7, and on February 10 Dr. Wilkerson treated him and sent him back to work. An X-ray was taken by the nurse on the February 7 visit. On February 11, his first day back on the job appellant aggravated the injury in attempting to move a coal loader. He returned to Dr. Wilkerson for treatment and for approximately two weeks was given pills and heat treatments. Dr. Wilkerson had diagnosed the injury as contusions and hematoma of soft tissue, and could find no evidence of bone injury in the X-ray. He discharged him at the end of the two week period, saying there was nothing more he could do and finding appellant fully recovered. During this entire period appellant still complained of severe pain.

The Workmen's Compensation Commission awarded compensation on March 21, 1958, and on April 2, 1958, the insurance company discontinued payment on advice of Dr. Wilkerson. In April, being unable to return to work, appellant was examined by a Dr. Gutman, an orthopedic surgeon, who found a congenital prespondylolisthesis (a forward slipping of one vertebra on another), recommended a corset, heat treatments and avoidance of heavy lifting for about a month. On the recommendation of the Commission's medical examiner, and after a hearing on July 15, 1958, the Commission ordered payment for temporary total disability, physiotherapy and a support for his back.

Upon request by appellant, appellee referred him to Dr. Reifschneider for examination and treatment on or about July 29, 1958. From then until October 13, 1958, appellant received treatment by the Drs. Reifschneider, in conjunction with X-rays taken by Dr. Jones for spondylolisthesis. On October 13 his compensation was again discontinued on advice of Dr. Reifschneider that he had reached his maximum improvement.

Appellant immediately requested a hearing. The extent of disability was controverted and he was ordered to be examined several times in October, November and December by the Commission's medical examiner, who referred him for further X-rays to Dr. Farber. Dr. Farber reported on December 22, 1958, that on lateral erect view he found a 'slight anterior shift of the 5th lumbar vertebra upon the sacrum measuring about 5 mm.' No abnormality appeared on oblique views or in the lateral view in lying position. The medical examiner ordered further examinations in February and March 1959 and on March 31, 1959, on the basis that he had not improved since November 1958, recommended that he 'should be hospitalized and a fusion should be considered. At the same time the disc space should be explored.' The Commission ordered further examinations, and a neurosurgeon reported that he believed appellant had a ruptured lumbar disc. The medical examiner recommended surgery on July 7, 1959. The next day appellee requested a hearing on this recommendation, which was held by the Commission on August 31, 1959. On September 21, 1959, the Commission ordered that he be provided with the treatment recommended by the medical examiner, and the order was complied with.

Appellant then sued the appellee, Dr. Wilkerson and the Drs. Reifschneider in tort for negligence. The first two counts of his declaration were against the doctors and are not involved in this appeal. The third count was against the appellee, the compensation insurer of the appellant's employer. In essence that count alleged that appellant suffered an industrial accident for which he claimed and received benefit under the Workmen's Compensation Law, including compensation and medical attention by physicians engaged by the appellee, and that the physicians were negligent in failing to diagnose and treat him for spondylolisthesis and in sending him back to work, where his original injury was aggravated. He contended that the appellee was liable on the basis of respondeat superior and on the basis that appellee did not exercise a reasonable degree of intelligence, skill and ability in the selection of the physicians. Appellee demurred to this third count and Judge Harlan sustained the demurrer without leave to amend, on the ground that the insurer's liability and the employee's remedies under the workmen's compensation law are exclusive of all other rights of action against the compensation insurance carrier.

On this appeal, appellant raises several questions. However, for the purposes of this opinion, they are all resolved into a single question of law: can a person who has received benefits under the workmen's compensation law, Code (1957), Article 101, maintain a subsequent action in tort for negligence against the insurer of his employer for alleged malpractice by physicians provided by the insurer in their treatment of the person's injury. In...