McAlister v. Methodist Hospital of Memphis

• Decision Date: 02 May 1977
• Citation: 550 S.W.2d 240
• Parties: Mattie L. McALISTER, Appellant, v. METHODIST HOSPITAL OF MEMPHIS, Appellee.
• Court: Tennessee Supreme Court

Page 240

550 S.W.2d 240

Mattie L. McALISTER, Appellant, v. METHODIST HOSPITAL OF MEMPHIS, Appellee.

Supreme Court of Tennessee.

May 2, 1977.

Max D. Lucas, Jr., Kirkpatrick & Lucas, Memphis, for appellant.

Gavin M. Gentry, Armstrong, Allen, Braden, Goodman, McBride & Prewitt, Memphis, for appellee.

OPINION

HENRY, Justice.

The sole issue in this hospital malpractice action is whether a hospital employee, covered by the Workmen's Compensation Act, who suffers an injury arising out of and in the course of her employment, may bring a common law action against the hospital for negligent treatment. The trial judge responded in the negative, holding that the Workmen's Compensation Act provided the exclusive remedy. This action is before this Court on interlocutory appeal, the trial judge having certified the above issue as a controlling question of law, pursuant to Sec. 27-305, T.C.A.

I.

The injured worker filed her complaint in the Circuit Court at Memphis, against the defendant Hospital and two treating physicians. ¹ She alleged an "on-the-job injury to her back", her consultation with a physician who caused her to be admitted to the hospital, the performance of a myelogram followed by a laminectomy, and a resulting infection and/or inflammatory condition at the operative site. Her cause of action is grounded upon lack of informed consent and assault and battery. She alleges permanent and total injuries and an attendant destruction of earning capacity.

Methodist Hospital moved to dismiss for failure to state a claim upon which relief can be granted in that a proceeding under the Workmen's Compensation Act was plaintiff's exclusive remedy. The trial judge sustained this motion, certified the controlling question of law summarized above, and we, in the exercise of our discretion, have elected to hear and determine the controversy because it presents a question of first impression in this jurisdiction.

II.

The Workmen's Compensation law is written into every contract of employment between an employer and employee subject to its provisions. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844 (1920). The rights and remedies granted to employees "exclude all other rights and remedies". Sec. 50-908, T.C.A. An injury within the meaning of the act must arise out of and in the course of employment. Sec. 50-902(d), T.C.A. The benefits under the act extend to medical and surgical treatment and hospitalization occasioned by the injury. Sec. 50-1004, T.C.A.

The injured worker may recover for a new injury or an aggravation of a compensable injury, resulting directly and without intervening cause from medical or surgical treatment of a compensable injury. International Harvester Co. v. Scott, 163 Tenn. 516, 43 S.W.2d 1065 (1932). The rationale of this rule is that the "original injury is regarded as the proximate cause of the damage flowing from the subsequent negligent treatment by the physician." Revell v. McCaughan, 162 Tenn. 532, 538, 39 S.W.2d 269, 271 (1931). See also Mallette v. Mercury Outboard Supply Company, 204 Tenn. 438, 321 S.W.2d 816 (1959). This rule applies to the general field of tort law. Transports, Inc. v. Perry, 220 Tenn. 57, 441 S.W.2d 1 (1967).

Thus, it is clear under these authorities that Methodist Hospital of Memphis is liable under the Workmen's Compensation Act, not only for the initial injury, but also for the injuries sustained as a result of the treatment for those injuries and this quite aside from any question of negligence. There is no dispute as to this proposition indeed this is the central assertion of the hospital's defense.

The issue before the Court is whether the remedy under the Workmen's Compensation Act is exclusive.

In McDonald v. Dunn Const. Co., 182 Tenn. 213, 185 S.W.2d 517 (1945), this Court held emphatically that "if an employer has complied with the provisions of the Workmen's Compensation Act, he is not subject to suit for negligence at common law, since the Act provides remedies which are exclusive." 182 Tenn. at 222, 185 S.W.2d at 520. However, neither this case, nor Sec. 50-908, T.C.A. answers the question with finality.

Sec. 50-914, T.C.A. provides in pertinent part:

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 such injured workman, or those to whom his right of action survives at law, may pursue his or their remedy by proper action in a court of competent jurisdiction against such other person . . . (Emphasis supplied).

The effect of Sec. 50-908, T.C.A. and Sec. 50-914, T.C.A., when read together, is that workmen's compensation is the exclusive remedy, except where the injury is caused by a third party. Garrison v. Graybeel, 202 Tenn. 567, 308 S.W.2d 375 (1957).

The question arises, as to the meaning of the phrase "some person other than the employer". The Act contains no definition. This Court, in Majors v. Moneymaker, 196 Tenn. 698, 270 S.W.2d 328 (1954) held that a fellow worker engaged in the scope of his employment is not a "third person" and is not subject to an action at common law.

In Garrison v. Graybeel, supra, a malpractice action, both the injured claimant and the defendant were employees of the same company, the former a carpenter, the latter a physician. The Court permitted the suit against Dr. Graybeel and distinguished this case from Majors v. Moneymaker, supra, on the basis that in the latter case the employees were engaged in the same or similar duties at the time of the accident, whereas in Garrison the physician's services "had no relation to the employer's business." This case stands for the proposition that an injured workman may receive compensation under the act and sue the physician for negligent treatment of the compensable injury. It is, however, out of harmony with the general rule and must be confined to its own facts.

Appellant plausibly and persuasively urges upon the Court the proposition that Methodist Hospital of Memphis appears in this record in two capacities, i. e. as an employer and as a hospital. In the first instance there arises the relationship of master and servant; in the latter that of hospital and patient. She reasons that had she been treated at another hospital it would have been "some person other than the employer" and she could have maintained her common law action, even though her injury occurred during the course of treatment for a compensable injury. This is undeniably true. Further she says that the fact that she was an employee at the Methodist Hospital had nothing whatsoever to do with her being treated there this was the decision of her physician. Finally, she insists that the Hospital was acting solely in its capacity as a hospital and not as her employer; and that as an employer the hospital is liable for workmen's compensation benefits and as a hospital it is answerable in tort.

This is the "dual capacity" doctrine, as designated by Larson, and delineated as follows:

Under this doctrine, an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers upon him obligations independent of those imposed upon him as employer. 2A Larson's Workmen's Compensation Law, Sec. 72.80 (1976).

Larson suggests that the "most striking example" of this doctrine is the California case of Duprey v. Shane, 39 Cal.2d 781, 249 P.2d 8 (1952), the authority upon which appellant places primary reliance.

The facts in Duprey, supra, are strikingly similar to the instant case. It was a malpractice action. Claimant was a nurse employed by the Shane Diagnostic Foundation. After receiving a compensable injury she was treated by her employer, and received new and further disability as a result of negligently administered treatment.

Sec. 3852 of the Labor Code of California is similar to Sec. 50-914, T.C.A. in that it gives the injured worker the right to sue for "all damages proximately resulting from such injury or death against any person other than the employer." (Emphasis supplied). 249 P.2d at 13. In holding the employing and treating physician to be a "person other than the employer", the court said:

. . . (Defendants) claim, however, that the rule that the employee injured in an industrial accident can sue the attending physician for malpractice only applies when the doctor is a third person, and has no application where the attending physician is also the employer. There seems to be no authority directly in point on this question, but on principle and logic it would seem that it should make no difference to the liability of the doctor for malpractice whether the attending doctor is the employer or an insurance doctor. This fact should not affect the legal rights of the employee. Dr. Shane, it is true, was the employer of * * * (plaintiff). As an employer it was his duty to secure compensation for his employee. That he did. As an employer he was under no obligation (under the circumstances shown here) to treat * * * (plaintiff) personally. Had he sent * * * (plaintiff) to the insurance doctor and had that doctor been negligent in treating the industrial injury, that doctor would have been liable for the malpractice. There seems to be no logical reason why the employer-doctor, when he undertakes to treat the industrial injury, should not be responsible in a civil action for his negligent acts in treating that injury. Once it is established that an action before the commission for the industrial injury is no bar to an action against the insurance doctor for malpractice, it would seem to follow that the employee does not lose his right to such an action simply because the employer who happens...