Hoffman v. Rogers

• Citation: 99 Cal.Rptr. 455,22 Cal.App.3d 655
• Court: California Court of Appeals
• Decision Date: 03 January 1972
• Parties: James K. HOFFMAN, Plaintiff and Appellant, v. J. F. ROGERS, M.D., Defendant and Respondent. Civ. 38383.

Page 455

99 Cal.Rptr. 455

22 Cal.App.3d 655

James K. HOFFMAN, Plaintiff and Appellant, v. J. F. ROGERS, M.D., Defendant and Respondent.

Civ. 38383.

Court of Appeal, Second District, Division 4, California.

Jan. 3, 1972.

J. Lorin Yeates, Sherman Oaks, for plaintiff and appellant.

Richard P. Nahrwold and Suzanne L. Harris, Los Angeles, for defendant and respondent.

Robert E. Cartwright, San Francisco, Edward I. Pollock, Theodore A. Horn, Los Angeles, Marvin E. Lewis, San Francisco, William H. Lally, Sacramento, Joseph W. Cotchett, San Mateo, Leonard Sacks, Pico Rivera, and Daniel Fogel, Los Angeles, amici curiae, for plaintiff and appellant.

JEFFERSON, Associate Justice.

Plaintiff James K. Hoffman appeals from a judgment of dismissal entered pursuant to the granting of a motion for summary judgment made by J. F. Rogers, M.D., one of two defendants named in the original complaint.

Plaintiff contends that the affidavits filed by defendant Rogers are insufficient to establish that no issue of fact exists.

On February 1, 1969, plaintiff filed a complaint alleging, in substance, that defendants Rogers and Glassman were both physicians and surgeons licensed to practice medicine and surgery in California with offices at identified locations; that, on or about September 7, 1966, plaintiff consulted defendant Rogers, company physician for Rocketdyne division of North American Aviation, Inc. (hereinafter called North American) to obtain diagnosis and treatment of an injury resulting from his employment; that defendant Rogers referred plaintiff to defendant Glassman; that after diagnosis both physicians determined that plaintiff had a hernia and recommended that he be treated surgically by defendant Glassman; that plaintiff underwent surgery performed by defendant Glassman on or about September 14, 1966; that the surgical incision thereafter became seriously infected and was treated by defendant Glassman; that on or about September 28, 1966, defendant Glassman notified plaintiff's employer that plaintiff was able to return to work on a limited basis; that from and after the date of his return to work, plaintiff was further treated by both defendants in a manner so negligent that plaintiff suffered a recurrence of the hernia; that as a result of such negligent treatment plaintiff was required to undergo further surgery and that plaintiff has as a consequence been damaged by the expense, pain and suffering and loss of income, among other things.

Defendant Rogers filed a general demurrer relying upon section 3601 of the Labor Code and the exclusive jurisdiction of the Industrial Accident Commission; this demurrer was overruled. Defendant Rogers then filed an answer in which he made a general denial and asserted defenses of contributory negligence and assumption of risk. On the same date, May 29, 1968, he filed and served interrogatories on plaintiff which plaintiff promptly answered. On July 16, 1970, defendant Rogers filed his motion for summary judgment.

In his original declaration Dr. Rogers alleged in substance that he is a physician and surgeon and has been continuously since 1957 licensed to practice in California; that in December 1962, he entered the employ of North American and has continuously since that date remained an employee of that company; that on September 7, 1966, he first met plaintiff and examined him with respect to an injury plaintiff had suffered in the course of his employment at North American; that Dr. Rogers then noted a soft, reducible mass in the left inguinal canal and concluded that plaintiff was suffering from inguinal hernia; that he advised plaintiff to consult with Dr. Glassman with the understanding that North American would pay all medical fees; that he next saw plaintiff on November 14, 1966, when he examined the surgical incision which he was informed and believed indicated the surgical treatment of the patient for the hernia condition; that he cleansed and dressed the incision on that date and thereafter on November 18, 21 and 22 and December 5 and 9, 1966; that on January 23, 1967, he again examined plaintiff and at that time referred him again to Dr. Glassman; that on March 6, 1967, he examined plaintiff and noted a pouch-like swelling beneath the site of the surgical incision; that from this and other indices he concluded that plaintiff had experienced a recurrence of the hernia; that he advised plaintiff to consult Dr. Glassman once more; that plaintiff thereafter consulted Dr. Koenig and was surgically treated for a hernia condition; that Dr. Rogers at each time he treated plaintiff was acting during normal hours of his employment and within the scope of such employment and that 'each such examination, diagnosis and treatment occurred within premises owned and operated by said employer.'

Richard Nahrwold, attorney for Dr. Rogers, separately declared that he attended the deposition of plaintiff James Hoffman in the course of which plaintiff stated unequivocally that he was injured in the course of his employment as a mechanic for North American; that he reported the injury to his supervisor who made arrangements for him to see Dr. Rogers; and that he was advised that North American would pay the medical expenses.

The additional declaration of Dr. Rogers filed August 12, 1970, alleges in further detail the nature and conditions of his employment by North American. He therein states, Inter alia, that he is a salaried employee and that his services 'consist of making physical examination of prospective employees of the Corporation, rendering first aid, and making diagnoses of such physical conditions of employees of the Corporation when an employee claims that his physical condition has been affected adversely while he was performing work of some sort on behalf of the Corporation.' Defendant further alleges that his office facility is located in the main building of the North American plant in Canoga Park; that he treats employees during regular office hours and receives no compensation from such persons; that since the beginning of his employment by North American he has received no compensation for medical services rendered from any source other than North American; that he maintains no office other than that at his place of employment; that he has no financial association with Dr. Glassman and has had contact with him only in respect to treatment of employees of North American; that he did see plaintiff seven times following his first examination of plaintiff but each time it was during working hours and he received no financial compensation from plaintiff; that he undertook this additional service because plaintiff suffered his injury while employed by North American.

Plaintiff filed no counter-declaration but did file points and authorities in support of his contention that the declarations filed by Dr. Rogers are inadequate as a factual basis for the court to determine the nature and extent of its jurisdiction over that defendant. Plaintiff does not dispute, and in his deposition alleges in similar language, the circumstances in which the accident occurred and upon which he first visited Dr. Rogers. Neither does plaintiff dispute the facts alleged in Dr. Rogers' declaration relating to the continuing course of treatment by Dr. Glassman and Dr. Rogers.

Plaintiff contends that the allegations of paragraphs 5 and 6 of defendant Rogers' original declaration lend factual support to plaintiff's position since the defendant therein admits that he engaged in a course of care and treatment beyond the preliminary diagnosis and referral ¹ which in his supplemental declaration he describes as the duties incidental to his employment. It is plaintiff's apparent theory that the joint treatment of his hernia condition conducted by one or both of the defendants, operating together, from and after the date of surgery, was negligently handled, and that such treatment constituted the proximate cause which aggravated the injury which had its inception in an industrial accident.

The controlling statutes relating to the jurisdiction of the Industrial Accident Commission are Labor Code sections 3601 and 3706. ² It is the import of section 3601, as generally established by judicial decision, that a fellow employee who injures another while acting within the scope of his employment is immune to suit in any forum absent a finding of willful or reckless misconduct. 'The phrase 'scope of his employment' is used in § 3601 to designate the sphere of activity encompassed within the provisions thereof which make the right to recover workmen's compensation the exclusive remedy available to an injured employee for a compensable injury caused by the negligence of a co-employee; identifies the nature of the act of the co-employee causing the injury and not the nature of the injury sustained as a result of that act; and must be interpreted accordingly.' (McIvor v. Savage, 220 Cal.App.2d 128, 135, 33 Cal.Rptr. 740, 744.) It is further pointed out, however, that 'A determination of the issue as to whether an employee was acting within the scope of his employment involves a consideration of many factors including, among others, whether his conduct was authorized by his employer, either expressly or impliedly (citation); the nature of the employment, its object...