Hendy v. Losse

Decision Date18 November 1991
Docket NumberNo. S018325,S018325
CourtCalifornia Supreme Court
Parties, 819 P.2d 1 John HENDY et al., Plaintiffs and Appellants, v. Gary LOSSE et al., Defendants and Respondents.

Page 543

1 Cal.Rptr.2d 543
54 Cal.3d 723, 819 P.2d 1
John HENDY et al., Plaintiffs and Appellants,
Gary LOSSE et al., Defendants and Respondents.
No. S018325.
Supreme Court of California,
In Bank.
Nov. 18, 1991.
As Modified on Denial of Rehearing Jan. 16, 1992.

Page 545

[819 P.2d 3] [54 Cal.3d 727] Howarth & Smith, Don Howarth and Barbara Gregg Glenn, Los Angeles, for plaintiffs and appellants.

Ault, Deuprey, Jones, Danielson & Gorman, Michael J. Grace, Martin E. Costello, San Diego, Thelin, Marrin, Johnson & Bridges, Curtis A. Cole, William F. Holbrook, Steven J. Bernheim, Los Angeles, Luce, Forward, Hamilton & Scripps, Richard R. Spirra, Lawrence J. Kouns and Nathan S. Arrington, San Diego, for defendants and respondents.

Fred J. Hiestand, Sacramento, as amici curiae on behalf of defendants and respondents.

BAXTER, Justice.

Review was granted in this matter to determine the effect, if any, of a 1982 amendment of Labor Code section 3602, 1 on the right of a person who suffers an industrial injury to sue a coemployee physician whose treatment allegedly aggravated the injury. The Court of Appeal held that while section 3602, as amended, no longer permits actions against a physician employer under the "dual capacity" doctrine, a coemployee action may be maintained under section 3601.

We disagree. While the Court of Appeal was correct in its conclusion that section 3601 alone governs the right of an employee to seek damages for industrial injuries caused by a coemployee, the immunity granted coemployees by section 3601 bars this medical malpractice action against Gary Losse, M.D., because he was acting within the scope of his employment when the conduct complained of occurred.


Insofar as they are relevant to plaintiff's cause of action against defendant Losse for medical malpractice and thus to the issue before the court, the allegations of the verified complaint reflect the following: 2

Plaintiff John Hendy suffered injury to his right knee on August 11, 1986, while playing in a regular season football game as an employee of the San [54 Cal.3d 728] Diego Chargers Football Company (Club). He was treated for that injury by defendant Losse, who was employed as a Club physician. As a condition of his continued receipt of salary and medical care at the expense of his employer, plaintiff was required to consult the Club physician.

Defendant Losse examined plaintiff pursuant to his employment by the Club, and advised plaintiff to continue playing football. From May 11, 1987, and continuing to September 1987, defendant Losse negligently diagnosed and/or treated plaintiff and advised plaintiff to continue playing football. On or about May 28, 1987, plaintiff suffered another injury to his right knee during a training session. He again consulted Dr. Losse, and defendant Losse again advised plaintiff to [819 P.2d 4] continue playing football. Dr. Losse lacked the knowledge and skill necessary to properly diagnose and treat plaintiff's condition or, although aware of the condition, advised plaintiff to

Page 546

continue to play football, with the result that plaintiff suffered irreparable and permanent injury to his right knee. 3 On or about September 8, 1987, when he consulted a physician who was not employed by the Club, plaintiff discovered that the cause of his injuries was defendant's failure to properly diagnose and treat his condition.

Defendant demurred to the cause of action for medical malpractice on the ground that plaintiff's exclusive remedy for his employment-related injury was within the workers' compensation system. In support of the demurrer defendant asked that the court take judicial notice, pursuant to Code of Civil Procedure section 430.30 and Evidence Code section 452, of both the National Football League employment contract and the collective bargaining agreement between the league's management council and the National Football League Players Association, both of which governed plaintiff's employment.

The collective bargaining agreement included a provision outlining the players' right to medical care and treatment, and made the cost of medical [54 Cal.3d 729] services to be rendered by Club physicians the responsibility of the Club. The contract between plaintiff and the Club provided that plaintiff would receive "such medical and hospital care during the term of this contract as the Club physician may deem necessary...." The contract between defendant and the Club is not part of the record.

Plaintiff opposed the demurrer on two grounds--(1) defendant was acting in a dual capacity when he diagnosed and treated plaintiff, and (2) the action was permitted under subdivision (b)(2) of section 3602, which permits an action at law against an employer for damages proximately caused by aggravation of a work-related injury if the "injury is aggravated by the employer's fraudulent concealment of the existence of the injury and its connection with the employment...."

The trial court sustained the demurrer without leave to amend, ruling that a 1982 amendment of section 3602 made workers' compensation plaintiff's exclusive remedy even if a dual capacity situation existed, and that the complaint failed to state facts to establish concealment of either the injury or its relation to plaintiff's employment. The Court of Appeal held that because section 3602 applies only to lawsuits against employers, its limitation on use of the dual capacity doctrine applied only to actions against employers and had no impact on an injured employee's right to sue a coemployee. 4



Section 3600 establishes the conditions under which an employer's liability for compensation established by the Workers' Compensation Act is in lieu of any other liability of the employer to the employee for an injury suffered on the job. 5 Section

Page 547

[819 P.2d 5] 3602 provides in turn, with exceptions not relevant here, that when compensation is payable under section 3600, the right to recover [54 Cal.3d 730] compensation is "the sole and exclusive remedy of the employee or his or her dependents against the employer...." A parallel, but not identical, exclusive remedy provision, section 3601, prohibits actions against coemployees for injuries they cause when acting within the scope of their employment.

A judicially recognized exception to the exclusive remedy restriction on actions against employers--the "dual capacity doctrine"--has been understood to also permit an action for damages against a coemployee physician if the injury to the plaintiff employee was caused or aggravated by the defendant. This case arises because the Legislature has imposed limits on the dual capacity doctrine by amendment of section 3602.

A. Dual Capacity of Employers

The dual capacity doctrine posits that an employer may have or assume a relationship with an employee other than that of employer-employee, and that when an employee seeks damages for injuries arising out of the secondary relationship the employee's claim is not subject to the exclusive remedy provisions of the Workers' Compensation Act. The doctrine was first enunciated in Duprey v. Shane (1952) 39 Cal.2d 781, 249 P.2d 8, which, like this case, involved a medical malpractice claim.

At the time Duprey was decided, section 3601 governed actions against employers by injured employees. It then provided: "Where the conditions of compensation exist, the right to recover such compensation pursuant to the provisions of this division is, except as provided in section 3706, the exclusive remedy against the employer for the injury or death."

Plaintiff Duprey was employed as a practical nurse by defendants who were partners engaged in the practice of chiropractic. The plaintiff was [54 Cal.3d 731] injured on the job. She was treated by one of her employers and by a fellow employee, also a chiropractor, who was another defendant. The treatment aggravated her injuries. She applied for and received compensation from the Industrial Accident Commission (IAC) for the original injury and resulting disability, and then sued Dr. Shane, her employer, and Dr. Harrison, her coemployee, for malpractice in causing the subsequent injury. After jury trial, the plaintiff was awarded damages for that injury.

On appeal from the judgment, the defendants claimed, inter alia, that the IAC had exclusive jurisdiction over the plaintiff's claim, relying on section 3601 for that proposition. The Court of Appeal, whose opinion this court adopted, disagreed and affirmed the judgment for the plaintiff.

The court reasoned: " '[W]hen the employing doctor elected to treat the industrial injury, the doctor assumed the same

Page 548

[819 P.2d 6] responsibilities that any doctor would have assumed had he been called in on the case.... [S]uch third party doctor can be sued for malpractice resulting in an aggravation of an industrial injury, or a new injury. It follows that the employer-doctor may be sued for malpractice when he elects to treat the industrial injury.' " (Duprey v. Shane, supra, 39 Cal.2d 781, 789, 249 P.2d 8, bracketed deletions from Court of Appeal opinion omitted.) In further explanation, the court noted the right of an injured employee to sue a doctor provided by the employer's insurer for malpractice, and concluded that the employee did not lose that right if an employer who was a doctor treated the injury. " 'In such event, the employer-doctor is a "person other than the employer" within the meaning of section 3852 of the Labor Code.... In treating the injury Dr. Shane did not do so because of the employer-employee relationship, but did so as an attending doctor, and his relationship to [plaintiff] was that of doctor and patient.' " (39 Cal.2d at p. 793, 249 P.2d 8, bracketed deletions from Court of Appeal opinion omitted.)

Use of the phrase "dual capacity" to describe this secondary relationship between the chiropractor/employer and...

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