Sturtevant v. County of Monterey

• Decision Date: 18 March 1991
• Docket Number: No. H006627,H006627
• Citation: 279 Cal.Rptr. 161,228 Cal.App.3d 758
• Court: California Court of Appeals Court of Appeals
• Parties: Louisa STURTEVANT, Plaintiff and Appellant, v. COUNTY OF MONTEREY, et al., Defendants and Respondents.

Page 161

279 Cal.Rptr. 161

228 Cal.App.3d 758

Louisa STURTEVANT, Plaintiff and Appellant, v. COUNTY OF MONTEREY, et al., Defendants and Respondents.

No. H006627.

Court of Appeal, Sixth District, California.

March 18, 1991.

Review Denied May 30, 1991.

Anthony Frey, Salinas, Malbour Watson, Pacific Grove, for plaintiff and appellant.

Hoge, Fenton, Jones & Appel, Mark A. Cameron, Susan G. Flanagan, Monterey, for defendants and respondents.

CAPACCIOLI, Acting Presiding Justice.

Holding

Workers' compensation is not an employee's exclusive remedy against an employer/hospital for its negligence in treating and thereby aggravating an industrial injury.

Statement of the Case

Plaintiff Louisa Sturtevant filed an action for medical malpractice against her employer County of Monterey and Natividad Medical Center and a co-employee Doctor John W. Buckner, M.D. The County and Medical Center moved for summary judgment on the ground that workers' compensation was her exclusive remedy. (See Lab.Code, §§ 3600, 3602.) ¹ The trial court agreed and entered judgment in their favor. Plaintiff appeals from the judgment, claiming that she is entitled to sue the County and Medical Center under the dual capacity doctrine. ² We agree and reverse the judgment.

Standard of Review

The trial court may properly grant a motion for summary judgment only if there are no triable issues of fact and, as a matter of law, the moving party is entitled to judgment. (Blankenheim v. E.F. Hutton & Co. (1990) 217 Cal.App.3d 1463, 1470, 266 Cal.Rptr. 593.)

Facts

The material facts are undisputed.

On January 15, 1988, plaintiff, who was working at the Center, fell and injured her right wrist, hand, and knee. She immediately sought treatment at the Center and was seen by Dr. Buckner, a co-employee, who performed surgery on her wrist. Thereafter, plaintiff filed a workers' compensation claim against defendants and received (and continues to receive) temporary disability payments and compensation for medical expenses. Some time later, plaintiff filed the instant action against defendants and Dr. Buckner for medical malpractice.

Discussion

From its inception, the workers' compensation system was intended to be and in general has been an employee's exclusive remedy against an employer for injuries sustained during the course and scope of employment. (§§ 3600 to 3602; see Buttner v. American Bell Tel. Co. (1940) 41 Cal.App.2d 581, 107 P.2d 439.) However, in Duprey v. Shane (1952) 39 Cal.2d 781, 249 P.2d 8, our Supreme Court created an exception to this exclusivity. There, a nurse was injured at work and then treated by her employer, a chiropractor, whom she later sued for negligence. Although her initial work injury was covered by workers' compensation, the court permitted her to sue her employer for his subsequent negligence. The court explained that in treating her, the employer had assumed obligations different from those of an employer and could be sued for breaching them as if he were a third party.

Duprey is regarded as the source in California's dual capacity doctrine: when an employer engages in a relationship with the employee which is distinct from that of employer and employee and invokes a different set of obligations than those of an employer to its employee, the employee may recover damages at law for breach of the latter obligations. (Bell v. Industrial Vangas, Inc. (1981) 30 Cal.3d 268, 273-274, 179 Cal.Rptr. 30, 637 P.2d 266; see Annot., 23 A.L.R.4th 1151.)

Since Duprey, courts have applied the doctrine in a variety of factual situations. (See, generally, 2 Witkin, Summary of Cal. Law (9th ed. 1987) Workers' Compensation, §§ 45-49, pp. 599-607 (hereafter "2 Witkin").) Pertinent here is D'Angona v. County of Los Angeles (1980) 27 Cal.3d 661, 166 Cal.Rptr. 177, 613 P.2d 238. There, a hospital employee contracted a disease at work. She was admitted to the hospital and treated by its doctors. Under the doctrine, she was permitted to sue the hospital for the negligence of the doctors in aggravating her condition. (See Hoffman v. Rogers (1972) 22 Cal.App.3d 655, 99 Cal.Rptr. 455; see also Annot., 73 A.L.R.4th 115.)

In 1982, the Legislature amended section 3602 and affected the applicability of the dual capacity doctrine. Section 3602 now provides, in relevant part, "(a) Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation is, except as specifically provided in this section and Sections 3706 and 4558, the sole and exclusive remedy of the employee ... against the employer, and the fact that either the employee or the employer also occupied another or dual capacity prior to, or at the time of, the employee's industrial injury shall not permit the employee ... to bring an action at law for damages against the employer. [p] (b) An employee ... may bring an action at law for damages against the employer, as if this division did not apply, in the following instances: [p] (1) Where the employee's injury or death is proximately caused by a willful physical assault by the employer. [p] (2) Where the employee's injury is aggravated by the employer's fraudulent concealment of the existence of the injury and its connection with the employment.... [p] (3) Where the employee's injury or death is proximately caused by a defective product manufactured by the employer and sold, leased or otherwise transferred for valuable consideration to an independent third person, and that product is thereafter provided for the employee's use by a third person. [p] (c) In all cases where the conditions of compensation set forth in Section 3600 do not concur, the liability of the employer shall be the same as if this division had not been enacted." (See Stats.1982, ch. 922, § 6, p. 3367.) ³

In this case, plaintiff first asserts that the aggravation of her work-related injury is a separate and independent injury that did not occur while she was "performing service growing out of and incidental to [her] employment" and "acting within the course of [her] employment." (§ 3600, subd. (a)(2).) Consequently, she claims the right to sue defendants for this subsequent injury under section 3602, subdivision (c), which, as noted above, provides that where the conditions of compensation do not concur, the employer's liability is the same as if the workers' compensation statutes did not apply. We disagree.

Under the statutes, an employer has a duty to provide an injured employee with the treatment reasonably required to cure or relieve the effects of the work-related injury. (§ 4600.) Thus, an employer who is liable to pay workers' compensation benefits for a compensable injury also must pay benefits for its aggravation or a new injury resulting from medical malpractice in treating the underlying injury on the theory that such malpractice is one of the foreseeable consequences of that injury. (D'Angona v. County of Los Angeles, supra, 27 Cal.3d 661, 664, 166 Cal.Rptr. 177, 613 P.2d 238; Heaton v. Kerlan (1946) 27 Cal.2d 716, 723, 166 P.2d 857; Fitzpatrick v. Fidelity & Casualty Co. (1936) 7 Cal.2d 230, 233-234, 60 P.2d 276; Deauville v. Hall (1961) 188 Cal.App.2d 535, 542, 10 Cal.Rptr. 511.) Consequently, the fact that such subsequent injuries do not themselves occur during the course and scope of employment is irrelevant.

If, as plaintiff claims, these subsequent injuries fall outside the workers' compensation system because the "conditions of compensation" did not exist when they were suffered, then, contrary to established precedent, an employer would not have a statutory obligation to pay for them. Moreover, if plaintiff's view were correct, then the plaintiffs in Duprey v. Shane, supra, 39 Cal.2d 781, 249 P.2d 8 and D'Angona v. County of Los Angeles, supra, 27 Cal.3d 661, 166 Cal.Rptr. 177, 613 P.2d 238, could have sued their employers without the help of the dual capacity doctrine. However, it strains credulity to think that our Supreme Court developed the doctrine in those cases when it was unnecessary to do so.

Plaintiff next claims that despite amended section 3602, she may still sue defendants under the Duprey- D'Angona dual capacity doctrine. ⁴

Defendants, on the other hand, claim that in amending section 3602, the Legislature, in effect, overruled these cases. We disagree.

Subdivision (a) of section 3602 provides that workers' compensation is an employee's exclusive remedy against an employer for industrial injuries except as specifically provided in sections 3602, 3706, and 4558. It then specifically prohibits dual capacity tort actions against an employer where "either the employee or the employer [ ] occupied another or dual capacity prior to, or at the time of, the employee's industrial injury."

This language is clear and unambiguous. It obviously applies to a line of dual capacity cases in which an employer manufactures a product sold to the public that injures an employee.

For example, in Douglas v. E. & J. Gallo Winery (1977) 69 Cal.App.3d 103, 137 Cal.Rptr. 797, an employee was injured when a scaffolding manufactured by the employer collapsed. The doctrine was applied to permit the employee to sue the employer for products liability because the employer had assumed obligations toward the employee as a manufacturer that were separate from those of an employer. (See also, e.g., Dorado v. Knudsen Corp. (1980) 103 Cal.App.3d 605, 163 Cal.Rptr. 477 [suit against employer for injury caused by a product supplied by a separate legal entity of which the employer was a general partner]; Moreno v. Leslie's Pool Mart (1980) 110 Cal.App.3d 179, 167 Cal.Rptr. 747 [suit against employer by employee injured disposing of leaky bottles of chemicals manufactured by a division of the employer doing business under a different name]; Bell v. Industrial Vangas, Inc., supra, 30 Cal.3d 268, 179 Cal.Rptr. 30, 637 P.2d 266 [suit against employer by employee injured while delivering gas manufactured by his employer to...