Franke v. Durkee

• Decision Date: 27 August 1987
• Docket Number: No. 86-0015,86-0015
• Citation: 141 Wis.2d 172,413 N.W.2d 667
• Parties: Pearl L. FRANKE, Individually and as Personal Representative of the Estate of Howard Franke, Deceased, Plaintiff-Respondent, v. Paul F. DURKEE, M.D., Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 667

413 N.W.2d 667

141 Wis.2d 172

Pearl L. FRANKE, Individually and as Personal Representative of the Estate of Howard Franke, Deceased Plaintiff-Respondent, v. Paul F. DURKEE, M.D., Defendant-Appellant.

No. 86-0015.

Court of Appeals of Wisconsin.

Argued July 20, 1987.

Opinion Released Aug. 27, 1987.

Opinion Filed Aug. 27, 1987.

Review Denied.

Terry E. Johnson (argued) and Peterson, Johnson & Murray, S.C., Milwaukee, for defendant-appellant.

Thomas J. Basting (argued), and Peter B. Kelley and Brennan, Steil, Ryan, Basting & MacDougall, S.C., Janesville, for plaintiff-respondent.

Before GARTZKE, P.J., and DYKMAN and EICH, JJ.

EICH, Judge.

We granted the appellant, Paul F. Durkee, M.D., leave to appeal a nonfinal order denying his motion for summary judgment dismissing this malpractice action. The sole issue is whether the Workers Compensation Act, ch. 102, Stats., is the exclusive remedy for employees injured by the negligence of the employer's in-house medical staff. We answer the question in the affirmative and reverse. ¹

On review of summary judgments, we follow the same methodology as the trial court. See In re Cherokee Park Plat, 113 Wis.2d 112, 115-16, 334 N.W.2d 580, 582-83 (Ct.App.1983). Here we are concerned only with the jurisdictional facts and the applicable law. The pleadings raise and join the jurisdictional issue, and the affidavits accompanying Durkee's motion set forth a prima facie defense to the action. Because there is no issue of material fact, summary judgment is appropriate.

Howard Franke was employed by General Motors at its Janesville plant. Durkee, a physician, was the plant medical director. Because of a temporary assembly line shut-down, Durkee had some free time and was able to offer general physical examinations to employees. On March 5, 1982, he performed a physical examination of Franke. The examination included a chest x-ray, which Durkee read as normal.

Not long thereafter Franke was diagnosed by another doctor as having a lung tumor, and that condition eventually caused his death. His wife, Pearl Franke, individually and as personal representative of his estate, sued Durkee for malpractice, claiming that he negligently failed to diagnose the tumor. Durkee answered and moved for summary judgment dismissing the action. He claimed that Franke's "injury" arose out of his employment at GM and, as a result, proceedings under the Workers Compensation Act constituted his sole and exclusive remedy. The trial court denied the motion and we accepted Durkee's appeal.

Under sec. 102.03(1), Stats., job-related injuries suffered by employees are covered by the Workers Compensation Act:

(c) 1. Where, at the time of the injury, the employe is performing service growing out of and incidental to his or her employment.

....

(e) Where the accident or disease causing injury arises out of his [or her] employment.

When these conditions are met, the Act is the employee's exclusive remedy against the employer and any co-employees. Sec. 102.03(2), Stats. Pearl Franke concedes that both her husband and Dr. Durkee were GM employees at the time of the medical examination. She also acknowledges that Franke was performing services growing out of or incidental to his employment within the meaning of the Act at the time he was examined, and that there was an "injury"--Durkee's failure to diagnose the tumor. She argues, however, that the Act does not apply because (1) she, a nonemployee, was herself injured by the loss of her husband's services, society, and companionship; and (2) the "injury" to her husband--the misdiagnosis--did not arise out of his employment, and thus is not compensable under the Act.

We acknowledge that Pearl Franke was not a GM employee and that the complaint alleges that, as a result of Durkee's negligence, her husband's life was shortened and she "sustained a loss of [his] service, society and companionship." We are also aware that the supreme court has recognized that a wife's cause of action for loss of consortium, while deriving from her husband's personal injuries, is also considered, for some purposes at least, as a claim for her own "injury." Kottka v. PPG Industries, Inc., 130 Wis.2d 499, 521-22, 388 N.W.2d 160, 170 (1986). But this does not, as she argues, dictate denial of Durkee's motion, for the "exclusive remedy" provisions of the Act bar her claim as well.

Section 102.03(2), Stats., which provides that the terms of the Act constitute an employee's exclusive remedy against his or her employer for work-related injuries, has been held to bar any action by the employee against the employer for such injuries. Messner v. Briggs & Stratton Corp., 120 Wis.2d 127, 132, 353 N.W.2d 363, 365 (Ct.App.1984). In addition, the supreme court has recognized that the statute also bars the "non-injured" spouse's claim for loss of consortium deriving from the employee-spouse's injuries. Rosencrans v. Wisconsin Telephone Co., 54 Wis.2d 124, 128-29, 194 N.W.2d 643, 645-46 (1972). In this sense, the spouse seeking the recovery stands in the employee-spouse's shoes insofar as recovery from the employer is concerned.

Since 1978, sec. 102.03(2), Stats., has also made the Act the exclusive remedy against "any other employe of the ... employer," and this provision is recognized as "eliminat[ing] the [employee's] right to bring a common law action" against a co-employee. Gerger v. Campbell, 98 Wis.2d 282, 284-85, 297 N.W.2d 183, 184 (1980). If the exclusivity provision bars the spouse's claim for loss of consortium against the employer, it must also bar a similar claim against a co-employee, for both derive their immunity from the same statutory provision. It follows that Pearl Franke's "non-employee" status is immaterial; her claim against Durkee, her husband's co-employee, is barred by sec. 102.03(2) and the rule of Rosencrans.

Pearl Franke next argues that the Act...