Vargo v. Barry, No. 94-CV-657.

• Docket Nº: No. 94-CV-657.
• Citation: 667 A.2d 98
• Case Date: November 02, 1995
• Court: Court of Appeals of Columbia District

667 A.2d 98

John J. VARGO, et al., Appellants,
v.
Marion BARRY, Mayor of the District of Columbia, et al, Appellees.

No. 94-CV-657.

District of Columbia Court of Appeals.

Argued October 5, 1995.

Decided November 2, 1995.

667 A.2d 99

Douglas J. Rykhus, Washington, DC, for appellants.

Justin Draycott, Assistant Corporation Counsel, with whom Garland Pinkston, Acting Corporation Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corporation Counsel, Washington, DC, were on the brief, for appellees.

Before FERREN, TERRY, and STEADMAN, Associate Judges.

FERREN, Associate Judge:

Appellants, John and Debra Vargo, brought tort claims against several doctors for negligently treating Mr. Vargo — a firefighter retired on total permanent disability — at the Police and Firefighters Clinic. The Vargos also filed breach of contract, negligence, and loss of consortium actions against the District of Columbia for the same medical treatment. They sought damages on each count ranging from $300,000 to $2,000,000.¹ Citing Ray v. District of Columbia, 535 A.2d 868 (1987), the trial court granted the defendants' motions to dismiss. On appeal, the Vargos contend, primarily, that (1) the trial court erred in dismissing their several related claims solely on the basis of Ray, and that (2) the District of Columbia Police and Firefighters Retirement and Disability Act ("Disability Act"), D.C.Code §§ 4-601, through 634. (1994 Repl.), does not preclude tort and contract actions arising out of negligent medical treatment of total disability retirees at the Police and Firefighters Clinic.

We conclude that the trial court did not err in dismissing these claims on the basis of Ray, a decision that binds this division of the court. See M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971). In Ray, we held that the Disability Act provides "the exclusive remedy

667 A.2d 100

for both injuries suffered by a retired firefighter in the performance of duty and those `legitimate consequences flowing from a compensable injury'" — including "any new injuries which grow out of or result from treatment or care provided in compensation for the primary injury." Ray, 535 A.2d at 871 (quoting Lindsay v. George Washington University, 108 U.S.App.D.C. 44, 46, 279 F.2d 819, 821 (1960)) (emphasis added). Because John Vargo's injuries allegedly occurred from Clinic treatment of the on-duty injuries that gave rise to his disability retirement, he is limited to the administrative remedy provided under the Disability Act — a remedy he has not purported to exhaust. The Vargos' claims, therefore, were properly dismissed as a matter of law under Ray, without need for further explanation

I.

According to the complaint, Vargo began his employment as a firefighter with the District of Columbia Fire Department on June 23, 1974. A year and a half later, on January 31, 1976, Vargo was injured while on duty in the District of Columbia. He therefore became entitled to, and began to receive, treatment at the District of Columbia's Police and Firefighters Clinic for the injuries he received on duty. The Clinic is intended to provide qualifying uniformed personnel with the health care services mandated by the Disability Act. See D.C.Code § 4-614.

Clinic doctors treated Vargo with physical therapy and prescription drugs. As a result of continued pain in his back, neck, shoulder, legs, and left knee, doctors at the Clinic referred Vargo to Dr. Donald Cooney, an outside specialist. Dr. Cooney surgically removed a degenerative lumbar disk from Vargo's spine in May 1977. Vargo continued to visit the Clinic regularly for treatment after the surgery. On October 1, 1977, Vargo retired on full disability subject to the terms of the Act.

Clinic physicians continued to treat Vargo's symptoms for 13 years, from 1977 to 1990. In 1990, Dr. Lawrence Manning, a doctor employed at the Clinic, referred Vargo for orthopedic consultation in light of his complaints of persistent back pain and other symptoms. X-rays revealed that Vargo suffered from a fractured coccyx. Dr. Michael Dennis, a private neurosurgeon, surgically treated Vargo's fracture in December 1991. Following the surgery, Vargo continued his treatment at the Clinic.

On December 10, 1993, the Vargos sued Mayor Sharon Pratt Kelly (as a way of suing the District of Columbia), three physicians² at the Clinic, and Dr. Cooney, alleging medical malpractice in the diagnosis and treatment of Mr. Vargo's original performance-of-duty injuries. Against the District, the Vargos brought one count for breach of contract for the Clinic's failure "to properly monitor and care for" Vargo's medical needs, and one count for negligence alleging the Clinic's failure "to detect Vargo's broken coccyx for more than 17 years" and "to diagnose and treat his post-traumatic stress." The Vargos also alleged one count of negligence on the same grounds against each of the individual Clinic doctors named in the complaint, as well as a count on Debra Vargo's behalf for "loss of spousal affection."

The District defendants (appellees here) and Dr. Cooney filed motions to dismiss, respectively, on March 27 and April 14, 1994. The trial court granted the District defendants' motion on April 22, 1994, relying on this Court's decision in Ray without elaboration. The Vargos filed an appeal. Thereafter, the trial court, upon denying Dr. Cooney's motion to dismiss, granted his motion for summary judgment. On November 4, the District defendants filed a motion for summary affirmance of the trial court's dismissal of the complaint. By an order dated January 9, 1995, we denied the...