Fuller v. Blanchard
| Decision Date | 22 March 2004 |
| Docket Number | No. 3763.,3763. |
| Citation | 595 S.E.2d 831,358 S.C. 536 |
| Court | South Carolina Court of Appeals |
| Parties | Frances Adena FULLER, individually and as personal representative of the Estate of Robert Ray Fuller, deceased, Respondent, v. Gerald E. BLANCHARD, Appellant. |
Charles E. Carpenter, Jr., George C. Beighley and S. Elizabeth Brosnan, all of Columbia, for Appellant.
Charles L. Henshaw, of Columbia, for Respondent.
Frances Adena Fuller ("Mrs.Fuller") brought wrongful death, survival, and loss of consortium claims against Dr. Gerald E. Blanchard, alleging he committed medical malpractice in negligently failing to advise her husband, Robert ("Mr.Fuller"), of the adverse results of a cancer screening test. Dr. Blanchard moved for summary judgment on his defenses that the action was barred as a matter of law by the exclusive remedy provision of the South Carolina Workers' Compensation Act and because he owed no duty of care to Mr. Fuller. The circuit court granted Mrs. Fuller's cross-motion for summary judgment on the two defenses, and Dr. Blanchard appeals. We affirm.1
Mr. Fuller worked as a chemical engineer at Westinghouse. In 1996, Westinghouse offered a Prostate Specific Antigen (PSA) test to its male employees as part of the blood work done for their required annual physical examinations. The usual procedure was for the employee to have blood drawn for lab testing and then report to the physician for a physical examination a week to ten days later. At that time, the physician would review the test results, report them to the employee, and give the employee a copy. An abnormal PSA result indicated that the patient's prostate gland could be diseased and that the patient needed to seek further treatment.
Pursuant to an agreement between Westinghouse and Doctors Care, Dr. Blanchard, an employee of Doctors Care, performed physical examinations for the employees of Westinghouse and was on site twice a week to perform these services for a total of about four hours each week. Dr. Blanchard and a nurse, who was a full-time Westinghouse employee, received all blood test results and reviewed them before Dr. Blanchard conducted the physical examinations. Dr. Blanchard's established procedure was to report to each employee any abnormal test results, give the employee one copy of the lab work, and recommend that the employee see his family physician.
Westinghouse employees saw Dr. Blanchard only for routine employment physicals or for examination prior to returning to work after surgery or illness. On average, he saw between ten and fifteen employees during each session at Westinghouse. Dr. Blanchard was paid by Doctors Care and did not receive any payment for his services from Westinghouse.
In October 1996, Mr. Fuller's blood was drawn and sent for lab testing, which included a PSA test. The report showed a 5.0 PSA level. Dr. Blanchard stated that upon seeing a PSA level of 5.0 he routinely would have recommended to the employee that he consult his personal physician. He could not, however, specifically recall whether he informed Mr. Fuller of the elevated PSA level or advised him to see his family physician. There was no notation in the medical chart completed by Dr. Blanchard that Mr. Fuller was ever informed of the elevated PSA level.
In August 1997, Mr. Fuller again had a PSA test performed as part of his annual physical at Westinghouse. This time Mr. Fuller's PSA level was more than double its previous reading. Dr. Blanchard advised Mr. Fuller that he should see his family physician. Mr. Fuller sought further treatment. In September 1997, his urologist diagnosed him with prostate cancer and informed him that his treatment options were limited because of the progression of the cancer. Mr. Fuller died from prostate cancer on November 25, 1998.
Mrs. Fuller brought this action against Dr. Blanchard alleging medical negligence in the wrongful death of her husband. Dr. Blanchard answered and asserted as affirmative defenses that the action was barred as a matter of law because (1) the court did not have jurisdiction as the Workers' Compensation Act was the exclusive remedy, and (2) he was acting as a company physician and therefore did not have a physician-patient relationship with Mr. Fuller giving rise to a duty of care. Mrs. Fuller and Dr. Blanchard filed cross-motions for summary judgment.
The circuit court granted summary judgment to Mrs. Fuller on Dr. Blanchard's two defenses. The court found Dr. Blanchard was an independent contractor, not an employee of Westinghouse, and that Mr. Fuller's death was not a work-related injury. The court additionally found that Dr. Blanchard owed a duty of care, although limited, to Mr. Fuller.
Dr. Blanchard first contends the circuit court erred in granting summary judgment to Mrs. Fuller on his defense that he was immune from suit because any medical malpractice claim was barred as a matter of law by the exclusivity provision of the Workers' Compensation Act. We disagree.
The Workers' Compensation Act is the exclusive remedy against an employer for an employee's work-related accident or injury.2 The Act's exclusivity provision provides in relevant part as follows:
Further, as a general rule, this "immunity is conferred not only on the direct employer, but also on co-employees."5 Thus, an employee negligently injured by a co-employee conducting the employer's business may not hold the co-employee personally liable in tort, but must instead rely upon the remedies provided by the Workers' Compensation Act.6
Such immunity does not extend, however, to third-party tortfeasors who injure an employee acting within the course and scope of his employment; in such cases, the employee may file a claim for workers' compensation benefits for the injury and may also bring an action against the third party. Any recovery against the third party, however, is subject to subrogation.7
"[I]n general, treating physicians, as third parties to the employer-employee relationship, do not fall within the immunity provisions of the Workers' Compensation Act and are subject to suit."8 In the case before us, the circuit court found Dr. Blanchard was not entitled to blanket immunity under the Workers' Compensation Act because he provided his services to Westinghouse as an independent contractor, not its employee; further, even if Dr. Blanchard were a co-employee, Mr. Fuller's death from cancer was not work-related.
On appeal, Dr. Blanchard contends the circuit court erred in granting summary judgment to Mrs. Fuller on his defense that her claim was barred by the exclusive remedy provision of the Workers' Compensation Act. Dr. Blanchard asserts that he and Mr. Fuller were co-employees and that Mr. Fuller's death was a work-related injury.
"Whether or not an employer-employee relationship exists is a jurisdictional question." 9 When the issue on appeal involves jurisdiction, we can take our own view of the preponderance of the evidence.10
"Whether a worker is an employee or independent contractor is a fact-specific matter resolved by applying certain established principles."11 Our supreme court has stated the general test concerns the extent of the employer's right of control:
We agree with the circuit court's determination that Dr. Blanchard provided services to Westinghouse not as its employee, but as an independent contractor. As to the evidence of the right of control and the furnishing of equipment, although Westinghouse apparently established Dr. Blanchard would be available on its premises four hours per week and provided a Westinghouse employee to assist as his nurse, the only evidence in the record indicates that Dr. Blanchard scheduled employee visits, conducted a personal review of the test results, and made his recommendations without any direct supervision or instruction from Westinghouse, as such reviews came within the scope of his own professional expertise. Regarding the right to fire and the method of payment, as noted by the circuit court, Dr. Blanchard was not employed directly by Westinghouse; rather, he was on site four hours a week to provide services pursuant to a contractual agreement Westinghouse had with Doctors Care. It was undisputed that Dr. Blanchard was not on Westinghouse's payroll and received no compensation whatsoever from Westinghouse. Rather, he was paid directly by Doctors Care for his professional services. Dr. Blanchard testified he was not involved in negotiating the contract Doctors Care had with Westinghouse and he was unaware of its terms. Finally, there is no evidence in the record that Westinghouse could have fired Dr. Blanchard.
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