McDonough v. National Hospital Ass'n

• Decision Date: 16 December 1930
• Citation: 294 P. 351,134 Or. 451
• Court: Oregon Supreme Court
• Parties: MCDONOUGH v. NATIONAL HOSPITAL ASS'N ET AL.

294 P. 351

134 Or. 451

MCDONOUGH v. NATIONAL HOSPITAL ASS'N ET AL.

Supreme Court of Oregon

December 16, 1930

In Banc.

Appeal from Circuit Court, Multnomah County; Robt. G. Morrow, Judge.

Action by Patrick McDonough against the National Hospital Association, a corporation, and another. Judgment on the pleadings for defendant, and plaintiff appeals.

Affirmed.

Harry G. Hoy, of Portland (Edward O. Doxey, of Portland, on the brief), for appellant.

Frank S. Senn, of Portland (Senn & Recken, of Portland, on the brief), for respondents.

RAND J.

This is an appeal by plaintiff from an order sustaining a motion for judgment on the pleadings. The action is against the National Hospital Association, hereinafter referred to as the association, and C. G. Sabin, its physician, to recover damages for malpractice in treating plaintiff's left leg which had been fractured and his left foot, the bones of which had been dislocated, as the result of an accident occurring to plaintiff in the course of his employment. At the time of the original injury, plaintiff was an employee of the Flora Logging Company, and both he and his employer were subject to the Workmen's Compensation Act. Prior thereto, the employer had entered into a contract with said association by the terms of which the association had agreed to furnish to the employees of the logging company when injured, medical, surgical, and hospital services, and pursuant thereto, small sums had been deducted from plaintiff's wages and paid to the association. After the accident occurred, plaintiff was taken to a hospital by the Association and was treated by Dr. Sabin, whom the association had employed for that purpose.

The complaint alleged that, in treating plaintiff, Dr. Sabin was negligent in failing to discover that the bones of the foot had been dislocated, and that, without adjusting the same to their normal position, he set the leg in such manner that the foot became permanently injured and deformed to plaintiff's damage in the sum of $50,000.

The joint answer of the defendants admitted that Dr. Sabin treated plaintiff as a physician, but denied negligence or lack of skill.

As a separate defense the answer alleged that the injuries resulting from the original accident, as well as those claimed to have been sustained through the negligence of the physician, had been compensated for by an award made by the State Industrial Accident Commission amounting to $1,395.20 which was the amount of compensation prescribed by the statute for all injuries suffered by plaintiff up to the time of the final award and which included all the injuries set forth in the complaint; that plaintiff's acts in making application for compensation under the Workmen's Compensation Act and in accepting the payments made amounted to an election upon his part to take under the Workmen's Compensation Act, and that, by reason thereof, plaintiff is now barred from further prosecuting a claim for the injuries complained of in the complaint.

The plaintiff filed a reply containing a general denial of all the new matter set up in the answer, but qualified such denial by admitting that he made application to the State Industrial Accident Commission "for the statutory compensation, or award, for the injuries resulting from the industrial accident suffered by plaintiff," and that, in accordance with the Workmen's Compensation Act of this state, he had been paid compensation "for the injuries suffered by him naturally and necessarily resulting from the accident suffered by him at the logging camp on the 26th day of April, 1926."

On the complaint, answer, and reply, the learned trial court sustained a motion for judgment on the pleadings in favor of the defendants. Under section 79, Or. L., if the facts set forth in the separate defense constituted a complete defense to the cause of action alleged in the complaint, and those facts were admitted by the reply, then plaintiff is barred from maintaining this action against the defendants, and the action of the circuit court in sustaining the motion was proper, for it was admitted by the reply that, after the alleged added injuries had been sustained, a final award had been made by the Industrial Accident Commission and the amount thereof paid to and accepted by plaintiff. It was further admitted that plaintiff had been paid compensation for his injuries in accordance with the provisions of the Workmen's Compensation Act.

Under these admissions, the question is: Does the Workmen's Compensation Act require the Industrial Accident Commission to pay compensation to an injured workman for additional injuries sustained by him prior to the making of the award, which are the result of the negligence of a physician in treating him for his original injury? If it does, we think that the action of the trial court in sustaining the motion was proper, for it seems to be clear that, under the particular provisions of the Workmen's Compensation Act of this state, it was not intended there should be two recoveries by the injured workman for the same injury.

The general rule is that when a plaintiff has accepted satisfaction in full for an injury done him, from whatever source it may come, he is so far affected in equity and good conscience that the law will not permit him to recover again for the same damages. Berkley v. Wilson, 87 Md. 219, 39 A. 502; Cleveland v. Bangor, 87 Me. 265, 32 A. 892, 47 Am. St. Rep. 326; Lovejoy v. Murray, 3 Wall. 1, 18 L.Ed. 129.

Section 6616, Or. L., as amended by L. 1925, chap. 133, § 1, provides that every workman subject to the act in the employ of an employer subject thereto, who, while so employed, sustains a personal injury by an accident arising out of and in the course of his employment, is entitled to receive "from the industrial accident fund" the sum or sums thereinafter specified and "the right to receive such sum or sums shall be in lieu of all claims against his employer on account of such injury or death, except as hereinafter specifically provided; provided, however, that if the injury to a workman occurring away from the plant of his employer is due to the negligence or wrong of another not in the same employ, the injured workman * * * shall elect whether to take under this act or seek a remedy against such other, such election to be in advance of any suit, and if he elects to take under this act the cause of action against such third person shall be assigned to the state industrial accident commission for the benefit of the accident fund. If the other choice is made, the accident fund shall contribute only the deficiency, if any, between the amount of recovery against such third person actually collected and the compensation provided or estimated by this act for such case."

Subdivisions (h) and (i) of section 6626, Or. L., as amended by L. 1921, c. 311, § 5, provides:

"Should a further accident occur to a workman already receiving a monthly payment under this section for a disability, or who has been previously the recipient of a lump sum payment under this act, his future compensation shall be adjusted according to the other provisions of this section and with regard to the combined effect of his injuries and his past receipt of money under this act.

"If aggravation, diminution or termination of disability takes place or be discovered after the rate of compensation shall have been established or compensation terminated in any case, the commission may, upon the application of the beneficiary, or upon its own motion, readjust for future application the rate of compensation in accordance with the rules in this section provided, or, in a proper case, terminate the payments."

Section 6628, Or. L., as amended by L. 1921, c. 311, § 7, provides: "The commission shall have authority to provide, under uniform rules and regulations, first aid to workmen who are entitled to benefits hereunder, together with transportation, medical and surgical attendance and hospital accommodations for injured workmen and to contract therefor in its discretion. The commission may, in its discretion, authorize employers to furnish or provide, at the expense of the commission and upon terms fixed by it, such transportation, attendance and accommodations, and may, for the purpose of experience rating only, charge to the account of such employers the average cost of such services as shown by the experience of employers in a similar industry or occupation who do not come under the provisions of this section; provided, however, that all such transportation, attendance and accommodations shall be at all times subject to the supervision and control of the commission. * * * One purpose of this act is to restore the injured person as soon as possible and as nearly as possible to a condition of self-support and maintenance as an able-bodied workman, and final settlement shall not be made in any case until the commission is satisfied that such restoration is probably as complete as it can be made. Except as limited by this act, the commission is authorized to expend money from the accident fund to accomplish this purpose in each case and the amount so spent shall not be charged against the compensation allowed by this act to the injured workman, but an itemized statement thereof shall be rendered to him each month, when requested, and a duplicate to his employer."

Subdivision (c) of section 6632, Or. L., as amended by L. 1925, chapter 133, § 5, provides: "If subsequent to the last award or arrangement of compensation by the commission there has been an aggravation of the disability resulting from an accidental injury, the injured workman shall file with the commission an...