Garrison v. Graybeel

• Citation: 202 Tenn. 567,308 S.W.2d 375,6 McCanless 567
• Parties: Roy M. GARRISON v. Conrad L. GRAYBEEL. 6 McCanless 567, 202 Tenn. 567, 308 S.W.2d 375
• Decision Date: 06 December 1957
• Court: Supreme Court of Tennessee

Page 375

308 S.W.2d 375

Roy M. GARRISON v. Conrad L. GRAYBEEL.

6 McCanless 567, 202 Tenn. 567, 308 S.W.2d 375

Supreme Court of Tennessee.

Dec. 6, 1957.

Van Derveer & Parks, Chattanooga, for appellant.

O. W. McKenzie, Dayton, Duggan & Washington, Athens, for appellee.

NEIL, Chief Justice.

This is a common law action for damages for alleged malpractice, and the error assigned is to the action of the trial judge in sustaining the defendant's plea in abatement to the plaintiff's declaration.

The declaration alleges the following facts:

'That he is a citizen and resident of Rhea County, Tennessee, and for many years has been engaged in the contracting business and/or earned his living, and supported his family, as a carpenter. That the defendant is also a citizen and resident of Rhea County, Tennessee, and is engaged in the general practice of medicine with his office located in Spring City, Tennessee.

'That on or about the 16th day of July, 1956, while engaged in certain work he suffered a very minor injury in that a nail penetrated his left hand. Shortly thereafter he was sent, or did go, to the office of the defendant for treatment. That there the defendant did bind or wrap up his wound and, in addition thereto, did give him an injection of tetanus anti-toxin serum.

'That thereafter he did return to his normal duties but experienced sensations that were strange and foreign in that a reaction, soreness and a glandular enlargement took place in his arm and side. That he again contacted the defendant as his condition grew progressively wrose, the glandular enlargement, soreness and pain spreading to his neck and shoulders. That his condition continued to grow progressively worse so that on or about the 31st day of July, 1956, he was admitted to Memorial Hospital in Hamilton County, Tennessee, where it was determined that the upper part of his body was partially paralyzed; that he remained in the hospital until on or about the 20th day of August, 1956, whereupon he was released, his body still in a partially paralyzed condition. He further alleges that his condition is permanent--that medical science knows no cure.

'He alleges that the direct and proximate cause of his condition was the wrongful, careless, illegal, negligent and incautious administration of the tetanus anti-toxin serum, in that the defendant (1) without proper medical justification administered the serum; (2) failed to obtain any, or an adequate or complete, history; (3) failed to obtain any, or an adequate or complete, medical history; (4) wrongfully, carelessly, illegally, negligently and incautiously attempted to give a sensitivity test; (5) after attempting to give a sensitivity test failed to wait a sufficient length of time to determine the reaction; (6) wrongfully, carelessly, illegally, negligently and incautiously administered the serum with a positive history of personal and familiar allergy; (7) failed to take adequate precautions during and after the administration of the drug; (8) that the defendant knew, or should have known, that in the natural course of events mischievous consequences could be expected to occur unless necessary and adequate precautions were taken, to prevent such consequences, but that the defendant illegally, wrongfully, carelessly, negligently and incautiously failed to take the necessary and adequate precautions.

'He alleges that his condition is so serious, and of such a nature, that he will never completely recover therefrom but will forever remain sick, sore, lame, disfigured and disordered.'

The defendant filed the following plea in abatement:

'The plaintiff was an employee of J. B. McCrary Co., Incorporated, on the date he received this injury and this plaintiff employee and the said employer had elected to and was bound by the provisions of the Tennessee Workmen's Compensation Act. The alleged injury for which this plaintiff sues grew out of his employment as the employer had retained or employed this defendant prior to this injury to render any and all medical aid to their employees who were injured while working for him within the scopes of their employment.

'This plaintiff has received compensation for the injury as alleged and is now drawing compensation for said injury from the said employer and the insurance company who is carrying the said employer's insurance as required by said Tennessee Workman's Compensation Act and as this plaintiff has elected to draw this compensation from his employer, he cannot recover or maintain this common law action. The employer is liable for a new injury or an aggravation of employee's injury resulting directly and without intervening causes from medical or surgical treatment of a compensable injury as the acceptance of medical service tendered by an employer to an injured employee is compulsory upon the said employee by Section 25 of the Workmen's Compensation Act, T.C.A. Sec. 50-1004. Therefore, if the defendant was negligent in his treatment of said injured employee, the injury is compensable under the Workmen's Compensation Act and payable by employer as the case made by the declaration and injuries for which plaintiff sues are the same injuries he had and is now drawing compensation.

'This defendant pleads estoppel by election to maintain this suit at law.

'The Workman's Compensation Act, Section 8, provides as follows:

'Williams Code, Section 6859. Tennessee Code Annotated 50-908:

"50-908. Right To Compensation Exclusive.--The rights and remedies herein granted to an employee subject to the Workmen's Compensation Law on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, dependents, or next of kin, at common law or otherwise, on account of such injury or death.'

'Since the plaintiff and his employer has elected to be bound by the provisions of the said Act and the Employer has complied with said Act and the plaintiff employee has and is now receiving benefits under said Act as provided by the Statute, he cannot maintain this suit for the aggravation of an injury sustained by him for which he was treated by this defendant.'

In addition to the foregoing plea the parties entered into the following stipulation:

'It is stipulated by and between the parties that the defendant, Dr. C. L. Graybeel, a general practitioner, was retained or employed by the J. B. McCrary Company, Incorporated, prior to the date of the alleged injury to the plaintiff, to render medical services, if, when, and as needed, to the employees of said company in addition to his general practice. His employment was on a fee basis and the defendant was not, prior to, nor at the time he treated the plaintiff, a salaried employee of said company. It is further stipulated that the defendant, Dr. C. L. Graybeel, is a general practitioner engaged in the general practice of medicine in the city of Spring City and, as such, engages in a general medical practice maintaining his own office and otherwise acts and conducts himself as a general practitioner.'

To the foregoing plea the plaintiff demurred on the ground 'that the same is not sufficient in law to abate plaintiff's action.' The trial judge sustained the plea in abatement and dismissed the plaintiff's suit.

There are two sections of the Code which appear to be applicable to the question made on this appeal. The defendant's plea in abatement relies on 50-908, T.C.A., above quoted. This foregoing section of the Code was amended by the Acts of 1949, and brought into T.C.A. under Sec. 50-914. This amendment reads as follows:

'When the injury or death for which compensation is payable under the Workmen's Compensation Law was caused under circumstances creating a legal liability against some person other than the employer to pay damages, the injured workman, or his dependents, shall have the right to take compensation under such law and said injured workman, or those to whom the right of action survives at law, being dependents, may pursue his or their remedy by proper action in a court of competent jurisdiction against such other person. In the event of recovery from such other person by the injured workman, or those to whom the right of action survives, being dependents, by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the amount paid or payable under such law, and shall have a lien therefor against such recovery and the employer may intervene in any action to protect and enforce such lien. Such action against the other party must be instituted in all cases within one (1) year from the date of the injury. Failure on the part of the injured workman, or those to whom the right of action survives, being dependents, to bring such action within the time herein specified, shall operate as an assignment to the employer of any cause of action in tort which the workman, or those to whom the right of action survives, being dependents, may have against any other party for such injury or death, and such employer may enforce same in his own name or the name of the workman, or those to whom the right of action survives, being dependents, for such employer's benefit as his interest may appear, by proper action in any court of competent jurisdiction, and shall have six (6) months after such assignment within which to commence such suit.'

It cannot...