Ross v. Schubert

• Decision Date: 30 April 1979
• Docket Number: No. 2-1176A429,2-1176A429
• Citation: 388 N.E.2d 623,180 Ind.App. 402
• Parties: Wilburn R. ROSS and Bernadine M. Ross, Plaintiffs-Appellants, v. Jerome C. SCHUBERT, Robert M. Schleinkofer, and Garland D. Anderson, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 623

388 N.E.2d 623

180 Ind.App. 402

Wilburn R. ROSS and Bernadine M. Ross, Plaintiffs-Appellants, v. Jerome C. SCHUBERT, Robert M. Schleinkofer, and Garland D Anderson, Defendants-Appellees.

No. 2-1176A429.

Court of Appeals of Indiana, Fourth District.

April 30, 1979.

Robert Thompson and David Peebles, Peebles, Thompson, Rogers & Hamilton, Fort Wayne, James W. Bowers, Palmer, Bowers & Brewer, Huntington, for appellants

Milford M. Miller, Grant F. Shipley, Livingston, Dildine, Haynie & Yoder, Fort Wayne, Williams P. Door, Lord Bissell & Brook, Chicago, Ill., Ted S. Miller, Gordon, Glenn, Miller, Bendall & Branham, Huntington, for appellees.

CHIPMAN, Presiding Judge.

Appellants Wilburn R. Ross (Ross) and his wife, Bernadine M. Ross, sued the physician defendants for damages based on alleged medical malpractice. This appeal from an adverse verdict and judgment raises one issue: Do the "fellow employee" immunity provisions of the Indiana Workmen's Compensation Act protect a company physician from a claim of medical negligence brought by an employee of the same company. We conclude they do not and reverse.

FACTS

Ross was employed as a factory worker by International Harvester Company at its Fort Wayne plant. The three defendants are all licensed Indiana physicians who were employed on a part-time basis by International at its clinic located in the same plant; they met all the requirements for being salaried employees of International.

While employed at International Ross became partially disabled due to a nonindustrial accident and was subsequently assigned to light duty work under the handicap job program provided by International. Periodically those assigned to this program are examined by the doctors at the company clinic to determine if they have recovered and can thus return to their normal factory work or can be assigned to jobs requiring less restrictions. In accordance with this procedure, Ross was examined by one of the defendants and a determination was made that he could perform regular factory work with some weight lifting limitations. Ross started his new job and three days later was unable to continue; a determination was made that he was permanently disabled. Ross alleges that his disability was caused by various negligent acts of the three defendants with regards to his reclassification and the treatment he received when he reported soreness after beginning his new job.

The issue before us was raised by various instructions tendered by the defendants and given by the court over Ross' objection. The crucial instruction stated, in effect, that if the jury found the defendant doctors were employees of International, then they were immune from a claim of damages based on malpractice. ¹ The premise for this

instruction would [180 Ind.App. 405] obviously be that the Workmen's Compensation Act would provide the exclusive remedy if the harm to that employee was caused by the negligence of a fellow employee. Ind. Code 22-3-2-13.

CONCLUSION

After carefully studying the history of the Indiana Workman's Compensation Act and examining its provisions, we are unable to discern from the Act any legislative design to immunize physicians from medical malpractice claims or to interfere with the customary physician-patient relationship. It is our opinion that it would torture the Indiana legislature's intent, as evidenced by its objectives in enacting the Act, to let the simple rubric of "in the same employ" insulate physicians from liability arising out of the performance of professional medical services.

This court is mindful that when construing statutes, the cardinal principle is to ascertain and give effect to the legislature's intent. City of Indianapolis v. Ingram, (1978) Ind.App., 377 N.E.2d 877. The crucial determination in this case is whether a doctor is an individual "in the same employ" as the person injured within the meaning of the statute, Ind. Code 22-3-2-13. ² Since "it is highly desirable that a statute be given a similar interpretation by the several states wherein it is in force," Witherspoon v. Salm, (1969) 251 Ind. 575, 243 N.E.2d 876, we have examined at length the interpretations which other jurisdictions have placed upon similar statutes. ³ Although the statutes themselves are not markedly dissimilar, the variety of results which have been reached is literally rivaled only by the variety of tests which have been employed to justify these conclusions. We will, therefore, be primarily guided by the Indiana legislature's purpose in enacting our Act as well as the Indiana Supreme Court's interpretation of the applicability of earlier provisions of the Act to a company physician. ⁴

The Act initially developed because of the obstacles and delays which hindered the working person's ability to recover against an employer for industrial related accidents. This undesirable situation proved to be the principal impetus behind the abolishment of common law actions against the employer and the substitution of a no-fault system of recovery. Vargo, Workmen's Compensation, 8 Ind.L.Rev. 289 (1974). Under the Act the employee was given a statutory right to compensation, regardless of fault, and the employer's liability was limited to that provided by the Act. North v. United States Steel Corp., (7th Cir. 1974) 495 F.2d 810. Thus, the immediate purpose and effect of the Workmen's Compensation Act was to control and regulate relations between an employer and his employees. Artificial Ice & Cold Storage Co. v. Waltz, (1925) 86 Ind.App. 534, 146 N.E. 826. As between them, the Act still provides the exclusive remedy for industrial accidents. Ind.Code 22-3-2-6; ⁵ Kottis v. United States Steel Corp., (7th Cir. 1976)543 F.2d 22; Needham v. Fred's Frozen Foods, Inc., (1977) Ind.App., 359 N.E.2d 544; Stainbrook v. Johnson County Farm Bureau Co-operative Association, Inc., (1954) 125 Ind.App. 487, 122 N.E.2d 844.

Since the Act's inception, it has been the employment relationship which is to delineate its perimeters of immunity. In enacting the Workmen's Compensation Act, the legislature never manifested a desire to reach beyond the employment relationship and benefit a third party. Thus, the Act was never intended to abridge the remedies an employee has in tort against a Third party.

The 1929 version of what is now IC 22-3-2-13 stated:

Whenever an injury or death, for which compensation is payable under this Act (§§ 40-1201 40-1414, 40-1503 40-1704), shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, (i. e. a third party), the injured employee, or his dependents in case of death, may commence legal proceedings against such other person to recover damages . . . .

The applicability of this statutory language to a situation involving a company physician was addressed by our Supreme Court in Seaton v. United States Rubber Company et al., (1945) 223 Ind. 404, 61 N.E.2d 177.

In Seaton, Dorothy Seaton had brought an action against both United States Rubber Company and Dr. Edmond Haggard to recover for injuries she sustained while working for the corporation. Her injuries were allegedly aggravated because of the malpractice of Dr. Haggard who was employed as a physician by the corporation and was in charge of its first aid department. The Court found that the Workmen's Compensation Act provided the exclusive remedy in so far as the company was concerned, but the Court permitted the action against Dr. Haggard, stating:

In other jurisdictions where such an action is permitted, (malpractice action against company physician) it is based upon the theory that the physician, Whether hired by the employer or not, is a third party within the contemplation of their workmen's compensation act. . . .

This we believe to be the correct rule. (emphasis added)

Under the common law a doctor faced potential liability for malpractice; he retained this liability when the Court in Seaton held that a doctor was a third party within the ambit of the Act. We do not believe the legislature's subsequent insertion of the words, "and not in the same employ" was intended to abrogate the Court's interpretation that the Act failed to immunize physicians.

Although the Court in Seaton merely said that a physician was a third party under the Act without addressing why be belonged in this classification, other cases have held that when physicians practice medicine they are independent contractors, Iterman et al. v. Baker, (1938) 214 Ind. 308, 15 N.E.2d 365, and that independent contractors are third parties under the Act. See Merritt v. Johnson, (S.D.Ind.1961) 190 F.Supp. 454. Amending IC 22-3-2-13 certainly did not change a doctor's status from third party/ independent contractor to that of fellow employee. ⁶ When the legislature amended IC 22-3-2-13, they must be deemed to have been cognizant of the court's determination that physicians employed by corporations were liable as third parties, and in light of this knowledge, they retained the employee's right to proceed against a third party. Thus, the common law right of an injured employee to maintain an action against a physician for malpractice remained unaltered because it was not expressly or by necessary inference curtailed or denied. ⁷ We note that while a measure of liberality is indulged in construing the legislative definition of "employee" ⁸ to the end that an injured workman or his dependents may not be deprived of the benefits of the Act, Meek v. Julian, (1941) 219 Ind. 83, 36 N.E.2d 854, we find no similar position toward expanding the construction of "in the same employ" for purposes of permitting individuals to escape liability. The suggestion that the legislature intended, by this amendment, to include the company physician as a fellow employee of the injured industrial worker is a startlingly illogical concept. To hold that these doctors were not third parties unde...